Delhi District Court
Shriram Prajapati S/O Late Sh. Narayan ... vs Nand Kishore on 18 March, 2013
IN THE COURT OF SH. J. R. ARYAN, DISTRICT & SESSIONS JUDGE,
INCHARGE (NORTH-EAST DISTT.),KARKARDOOMA COURTS, DELHI
CA No. 10/13
Unique ID No. 02402R0010142013
Shriram Prajapati S/o Late Sh. Narayan Prajapati,
R/o 486, Ration Office Road, Bhola Nath Nagar,
Shahdara, Delhi-110032.
...........................APPELLANT
Bholaram Verma S/o Late Sh. Ram Chander,
R/o 1/9094, Gali No.3, West Rohtash Nagar,
Shahdara, Delhi-110032.
.........................RESPONDENT
Date of Institution of the case: 14.01.2013
Date of reserving the case for Order: 06.03.2013
Date of passing of Judgement 16.03.2013
J U D G M E N T:
1. Appellant Shriram Prajapati convicted for an offence under Section 138 of Negotiable Instrument Act by conviction judgment dated 17.12.2012 and then awarded a sentence of one year rigorous imprisonment and with a direction to pay Rs.1,60,000/- as fine vide separate order on sentence dated 18.12.2012 has come in appeal questioning conviction as well sentence. Challenge to the conviction is on the premise that complainant himself in his cross-examination admitted facts which suggested that complainant was a money lender and in the absence of complainant holding any money lending license, alleged transaction of loan advanced by complainant to the appellant CA No. 10/13 and in discharge of which liability of loan that accused issued the cheque in question being a money lending transaction and in the absence of a money lending license with the complainant, the loan transaction was illegal and the debt or liability of such a transaction became unenforceable liability, it being " not legally recoverable debt or liability", the Trial Court failed to appreciate this defence of accused. Learned counsel Sh. Piyush Jain appeared for the appellant and argued that conviction was liable to be set-aside and learned counsel very strongly relied upon Bombay High Court judgment in a case Smt. Nanda vs. Nand Kishore, Criminal Appeal no.967/09 decided on 12.01.2010.
2. It is further argued by learned appellant's counsel that infact a blank signed cheque had been drawn and issued by accused-appellant and that too was given to Kaushal Kumar from whom accused had availed some loan and the cheque has been misused by the complainant by colluding with Kaushal Kumar. Learned counsel relied upon Hon'ble Punjab and Haryana High Court in M/s Goodwill Hire Purchase vs. Daljeet Singh and argued where a blank signed cheque had been misused then Court ought to have examined the matter from an angle that Section 269 SS of Income Tax Act provided mandatory provision that a transaction of loan exceeding Rs.20,000/- ought to be by way of account payee cheque and with these observations Hon'ble Punjab and Haryana High Court in M/s Goodwill Hire Purchase case found that presumption under Section 139 of N.I. Act was not invocable and CA No. 10/13 acquittal judgement recorded by the Magistrate was found non-interferable. Hon'ble High Court had relied upon Krishna Janardhan Bhatt's case 2008(1), RCR 498 and learned appellant's counsel further also relied upon Krishna Janardhan Bhatt's case in support of his plea that blank signed cheque was misused in this case when the cheque infact had been given to Kaushal Kumar from whom accused-appellant had availed certain loan amount. Learned counsel submitted and argued that conviction was liable to be set aside.
3. Learned counsel Sh. Mahender Bhardwarj appearing for the respondent-complainant Bhola Ram Verma in this appeal submitted that complainant pleaded a specific case that friendly loan was given to the accused by the complainant and which friendly loan has been admitted by accused when examined under Section 313 CrPC and in this regard counsel referred to question no.6 and then answer by accused on that admission. Counsel argued that the defence plea that blank signed cheque had been misused is only a plea when complainant took all trouble to examine Kaushal Kumar also as a witness. When Kaushal Kumar CW2 was examined only a suggestion as a defence has been given and he answered suggestion as wrong and incorrect that infact accused ShriramPrajapati had taken a loan from this witness and cheque in question had been given to this witness as a security or that cheque was being misused by complainant.
4. Facts in brief as appearing from the Trial Court record are that CA No. 10/13 complainant Bhola Ram filed present complaint case on 21.04.2011. His allegation as regards offence under Section 138 N. I Act were that somewhere in the first week of October, 2010, accused Shriram Prajapati approached complainant for a friendly loan of Rs.80,000/- which was conceded by complainant. In discharge of said loan liability accused issued a cheque bearing no.596606 dated 20.02.2011 for an amount of Rs.80,000/- drawn on HDFC Bank, Laxmi Deep Building, Laxmi Nagar Distt. Centre, Vikas Marg, Delhi. Cheque when presented through complainant's bank, Canara Bank, Rohtash Nagar, Shahdara, Delhi, it was returned unpaid with a reason "account closed" vide bank return memo dated 25.02.2011. Complainant issued then statutory demand notice to the accused-appellant and that notice is dated 07.03.2011 which was sent by registered post as well under certificate of postage as well through courier. Notice was served upon accused as it appears from the courier proof of service. Since the payment of bounced cheque was not made by accused, present complaint was filed. Presummoning evidence was filed by the complainant in the form of his affidavit which is Ex.C1. Relevant documents like cheque in question as Ex. CW1/1, bank returning memo showing the return of cheque for reason "account closed" vide document Ex. CW1/2, statutory demand notice Ex. CW1/3 and postal receipt for registered cover whereby this notice was sent as Ex. CW1/5 and certificate of postage is Ex. CW1/5 and courier receipt as Ex. CW1/4 since were part of that affidavit evidence, as prima facie case was CA No. 10/13 made out, accused was summoned. Accused was put on trial as a summons case when notice of offence under Section 251 CrPC was given to accused. Accused pleaded not guilty and pleaded a defence that he even did not know the complainant. He had given blank signed cheque to Kaushal Kumar in the year 2009 and he did not know as to how said cheque came to the possession of complainant Bhola Ram Verma but then it had been misused.
5. The complainant tendered his evidence which had already been filed in the form of his affidavit as Ex. C1 and he was cross-examined by Advocate on behalf of accused. Complainant then examined Kaushal Kumar and with that complainant closed his evidence. Accused also examined one defence witness besides his own examination under Section 313 CrPC. Learned Trial Court found complainant to have succeeded in proving offence committed by accused and accordingly convicted him and sentenced him.
6. Point for determination arises if complainant proved the existence of a debt or liability which was legally enforceable against appellant-accused and the cheque in question was drawn towards discharge of that liability. As seen above it is the appellant's contention that since transaction of loan between the complainant and accused was a transaction involving money lending and since complainant's evidence in cross-examination suggested complainant indulging in repeated money lending transaction, in the absence of money lending license complainant was not entitled to prosecute any remedy concerning that money lending transaction and, thus, he was not competent to CA No. 10/13 prosecute even offence of cheque bouncing when cheque was connected with that money lending transaction. Second point learned counsel argued was that a blank signed cheque was being misused. I have appreciated these contentions and have taken analysis of these contentions on the basis of evidence brought by the parties.
7. Complainant in his affidavit evidence specifically stated on oath that somewhere in the first week of October, 2010 accused approached him and asked for a friendly loan of Rs.80,000/- and to discharge that friendly loan, accused issued the cheque in question for Rs.80,000/-. Cheque bounced and all further proceedings in terms of Section 138 N. I Act were completed within stipulated period. On that point of friendly loan cross-examination on the complainant by defence counsel is that:
8. Complainant knew accused for the last 5 to 6 years and that complainant was a property dealer. Accused was residing in a premises situated above Sumit Pustak Bhandar and owner of one Bharat Pustak Bhandar had introduced accused to the complainant. Complainant further states that he used to lend money to accused and used to charge two percent interest per month. He admits that loan of Rs.80,000/- was also given on two percent interest and it was given in cash. Further deposition in cross- examination that complainant had sold a property situated in East Rohtash Nagar for Rs.19,00,000/- ( nineteen lacs ) to a person Ved Prakash and that sale consideration was received by him in 5-6 installments appears to be an CA No. 10/13 answer probably to a question as to how complainant was possessed of means for providing this loan of Rs.80,000/-. Complainant admitted that he did not have a money lending license. Finally, suggestion was put in cross- examination that accused had given the cheque to Mr. Kaushal and accused had no concern at all with the complainant. This is the cross-examination which appears entirely not categoric and assertive defence except only a suggestion. During arguments Court inquired from appellant's counsel if when Mr. Kaushal had the loan transaction with the accused and accused gave cheque to Mr. Kaushal then why complainant would take all that trouble to take up prosecution on that cheque. What was the meaning of a question put to complainant in cross-examination that earlier also complainant had been providing loan to accused and rate of interest used to be two percent per annum. Learned counsel then restricted his point that transaction in question could be said to be a money lending arising out of money lending business being indulged by the complainant and absence of license for such a transaction rendered the transaction illegal and learned counsel strongly relied upon judgment of Hon'ble Punjab and Haryana High Court in M/s Goodwill Hire Purchase case and then judgment of Hon'ble Bombay High Court in Smt. Nanda's case and finally Hon'ble Supreme Court in Krishna Janardhan Bhatt's case. I have considered these arguments of learned counsel.
9. In M/s Goodwill Hire Purchase's case as against complainant's case that accused had entered into a hire purchase agreement with the complainant CA No. 10/13 M/s Goodwill Hire Purchase and accordingly loan was provided to accused and towards discharge of that loan liability that cheque was issued in favour of complainant which had bounced, the issue before the Trial Court arose if loan was really given to the accused when accused took a specific plea that loan amount infact had never been provided to him. On the question of existence of debt or liability on the basis of evidence, Court found that where hire purchase agreement had been produced before the Court and no books of accounts were produced in support of plea that loan had really been paid to the accused, Court found that complainant failed to prove on record a legally enforceable debt as against accused. The judgement is distinguishable. In the present case as accused admits to have received the loan amount and his plea that loan was given to him by Mr. Kaushal Kumar to whom he had given cheque is a plea which does not have any evidence or material to substantiate. In the present case complainant examined Kaushal Kumar and this witness specifically stated that complainant had given Rs.80,000/- to accused as a loan. He specifically denied in the cross-examination if cheque in question had been given by accused to this witness. Accused has been rightly held and found to have failed to substantiate his plea that loan transaction in question was not with the complainant but with Kaushal Kumar.
10. Learned counsel heavily relied on Bombay High Court judgment that loan transaction would be covered by Money Lenders Act and it would render the loan liability unenforceable in law when complainant did not hold CA No. 10/13 money lending license. The Bombay Money Lenders Act 1946 extends only to the State of Maharashtra as a perusal of the Act reveals. Accordingly, Hon'ble Bombay High Court judgment in Smt. Nanda's case becomes inapplicable to the present case. Another reason for inapplicability of the judgment is that in the reported case complainant's own case was that she was in the business of money lending and the transaction in which cheques were drawn were part of complainant's money lending business. Challenge to prosecution for bouncing of the cheque was raised to the effect that complainant had no money lending license and Section 10 of the Bombay Money Lenders Act provided a complete bar on a Court in passing a decree in favour of money lender in suit in which Act applied unless the Court was satisfied that when the loan was advanced the money lender had valid license. It came to be held that said bar rendered liability of the accused in that prosecution legally unenforceable debt and thus prosecution was bad. In the present case not only that no such act creating bar in money lending transaction is found attracted, complainant had a specific case that he was a property dealer and money was being lent to accused alone. Though he had been charged two percent interest per month that by itself may not describe complainant to fall in the definition of money lendor or the transaction as part of money lending. Money lending is defined in Bombay Money Lending Act is a individual..... who carries on business of money lending in the State or by his or its principles place of such a business in the State and includes pawn CA No. 10/13 broker but would not include..... I do not find transaction in this case brings the complainant within the definition of money lender then the objection is untenable.
11. Ld. appellant counsel relied upon Supreme Court judgement reported as "Vijay vs. Laxman & Another" Criminal Appeal No. 261/2013 decided on 07.02.2013. Having gone through the judgement, I find it is distinguishable on facts. Hon'ble Supreme Court referring to earlier judgement in "P. Venugopal vs. Madan P. Sarthi" held that before a presumption u/S 139 N.I. Act was found attracted, existence of debt or other liability was to be proved in first instance by complainant and only thereafter the burden of proving contrary would shift to accused. In that case as a matter of fact it came on record as a findings that complainant's case that two months post dated cheque was given by accused to the complainant in a friendly loan transaction was found unacceptable. It was further found that complainant had even failed to mention date when that friendly loan had been advanced and which would be a serious challenge to complainant's proposition of friendly loan given to accused. Para 13 of that judgement dealt with the facts quoted below:-
"13. Applying the ratio of the aforesaid case as also the case of K.N. Beena vs. Muniyappan and Anr. (supra), when we examine the facts of this case, we have noticed that although the respondent might have failed to discharge the burden that CA No. 10/13 the cheque which the respondent had issued was not signed by him, yet there appears to be a glaring loophole in the case of the complainant who failed to establish that the cheque in fact had been issued by the respondent towards repayment of personal loan since the complaint was lodged by the complainant indicates the date of its lodgement as the date column indicates 'nil' although as per the complainant's own story, the respondent had assured the complainant that he will return the money within two months for which he had issued a post-dated cheque no.119582 dated 14.08.2007 amounting to Rs.1,15,000/- drawn on Vikramaditya Nagrik Sahkari Bank Ltd., Ujjain. Further case of the complainant is that when the cheque was presented in the bank on 14.08.2007 for getting it deposited in his savings account No.1368 in Vikarmaditya Nagrik Sahkari Bank Ltd. Fazalpura, Ujjain, the said cheque was returned being dishonoured by the bank with a note "insufficient amount" on 14.08.2007. In the first place, the respondent-accused is alleged to have issued a post-dated cheque dated 14.08.2007 but the complainant/appellant has conveniently omitted to mention the date on which the loan was advanced which is fatal to the complainant's case as from this vital omission it can reasonably be inferred that the cheque was CA No. 10/13 issued on 14.08.2007 and was meant to be encashed at a later dated within two months from the date of issuance which was 14.08.2007. But it is evident that the cheque was presented before the bank on the date of issuance itself which was 14.08.2007 and on the same date i.e. 14.08.2007, a written memo was received by the complainant indicating insufficient fund. In the first place if the cheque was towards repayment of the loan amount, the same was clearly meant to be encashed at a later date within two months or at least a little later than the date on which the cheque was issued: If the cheque was issued towards repayment of loan it is beyond comprehension as to why the cheque was presented by the complainant on the same date when it was issued and the complainant was also lodged without specifying on which date the amount of loan was advanced as also the date on which complaint was lodged as the date is conveniently missing. Under the background that just one day prior to 14.08.2007 i.e. 13.08.2007 an altercation had taken place between the respondent-accused and the complainant-dairy owner for which a case also had been lodged by the respondent-accused against the complainant's father/ dairy owner, missing of the date on which loan was advanced and the date on which complaint was lodged, casts a CA No. 10/13 serious doubt on the complainant's plea. It is, therefore, difficult to appreciate as to why the cheque which even as per the case of the complainant was towards repayment of loan which was meant to be encashed within two months, was deposited on the date of issuance itself. The complainant thus has miserably failed to prove his case that the cheque was issued towards discharge of a lawful debt and it was meant to be encashed on the same date when it was issued specially when the complainant has failed to disclose the date on which the alleged amount was advanced to the Respondent/ Accused. There are thus glaring inconsistencies indicating gaping hole in the complainant's version that the cheque although had been issued, the same was also meant to be encashed instantly on the same date when it was issued.
14. Thus, we are of the view that although the cheque might have been duly obtained from its lawful owner i.e. the respondent-accused, it was used for unlawful reason as it appears to have been submitted for encashment on a date when it was not meant to be presented as in that event the respondent would have had no reason to ask for a loan from the complainant if he had the capacity to discharge the loan amount on the date when the cheque had been issued. In any CA No. 10/13 event, it leaves the complainant's case in the realm of grave doubt on which the case of conviction and sentence cannot be sustained."
12. In the present case, I find evidence proves and establishes the loan transaction and accused-appellant has failed to discharge the onus of rebuttal. The Supreme Court judgement is distinguishable.
13. Appellant-accused has failed to rebut the presumption available in favour of complainant under Section 139 of the Negotiable Instrument Act. In an answer to a question put to accused in his 313 CrPC examination, accused states that he took a loan of Rs.80,000/- from the complainant Bhola Rarm Verma and he gave the cheque subject matter in this case only as a security. Certainly onus shifted upon accused to prove as to how then that security cheque was being misused and accused has completely failed in proving any such plea or defence. Conviction of accused-appellant suffers no illegality and it is liable to be upheld. For hearing on the point of sentence matter be put up on 18.03.2013.
Announced in the open Court (J. R. Aryan)
On this 16th day of March 2013 District & Sessions Judge/(NE)
Karkardooma Courts,Delhi
CA No. 10/13
IN THE COURT OF SH. J.R. ARYAN : DISTRICT JUDGE-CUM-SESSIONS JUDGE : INCHARGE-NE DISTRICT : KARKARDOOMA COURTS : DELHI : CA No. 10/13
Unique ID No. 02402R0010142013 Shriram Prajapati S/o Late Sh. Narayan Prajapati, R/o 486, Ration Office Road, Bhola Nath Nagar, Shahdara, Delhi-110032.
...........................APPELLANT Bholaram Verma S/o Late Sh. Ram Chander, R/o 1/9094, Gali No.3, West Rohtash Nagar, Shahdara, Delhi-110032.
.........................RESPONDENT
Date of Institution of the case: 14.01.2013
Date of reserving the case for Order: 06.03.2013
Date of passing of Judgement: 16.03.2013
Date of pronouncement of Order on sentence: 18.03.2013
ORDER ON SENTENCE:
1. Appeal against conviction for offence u/S 138 Negotiable Instruments Act stands dismissed on 16.03.2013 but then matter was adjourned for hearing on the point of sentence. Today Counsel Sh. Piyush Jain for the appellant and respondent/ complainant Bholaram Verma in person have been heard.
2. Ld. Trial Court awarded a sentence of one year rigorous imprisonment and a fine of Rs.1,60,000/- and it further directed that if fine was recovered then Rs.1,50,000/- shall be paid to the complainant as compensation. Ld. trial court failed to award default sentence and that omission needs to be corrected.
3. Counsel Sh. Jain submitted that appellant is a petty book shopkeeper and earns a meager income and has a family comprising young kids to support and sending him to jail will prove rather a punishment for the family besides accused a poor person facing jail life. It is submitted that accused CA No. 10/13 was not a previous convict and even if his substantive sentence of imprisonment was modified by showing a leniency to him, he will have to suffer a lot to make an arrangement of the amount of the fine and may be he will be trapped in a vicious circle. Counsel prayed for setting aside this substantive sentence and prayed for reducing the fine amount also.
4. Complainant on the other side submitted that he has been harassed a lot by accused who would not even care to listen to him to pay the principle amount and he prayed for a suitable punishment for accused.
5. Ld. trial court considered the large pendency of cheque bouncing cases pending in the court and found as if nobody considered the consequences of his criminal act of bouncing of the cheque and a message of deterrence was requested to be sent to the society to deal with such a situation.
6. Having considered both sides it appears to be a fact that accused-
appellant is a book shopkeeper and certainly sentence of imprisonment will deprive his family of the livelihood which appellant is earning and supporting his family but then on the point of sentence I do not find appellant deserves any consideration or concession and rather to my view where substantive sentence is to be considered for a leniency in his favour and rather some imposition of cost proceedings upon accused needs to be considered which may have impact of deterrence not only for accused-appellant but to society, at least to the persons near around and acquaintance of the parties. In the totality of facts and circumstances, I find substantive sentence of one year rigorous imprisonment awarded by Ld. ACMM, North-East district, Karkardooma Courts, Delhi, is set aside and it is converted to detention of the appellant in court till its rising but then fine amount is maintained at Rs. 1,60,000/- with a default sentence of three months rigorous imprisonment. Fine when recovered, a sum of Rs.1,50,000/- shall be paid to the complainant as compensation and rest of the fine amount shall stand forfeited to State. Rs.15,000/- is imposed as cost of proceedings upon CA No. 10/13 accused. Order on sentence dated 18.12.2012 passed by ld. trial court is accordingly modified in above terms. Appeal is disposed of.
7. Copy of the judgement and order on sentence along with trial court record be sent back.
Announced in the Open Court (J.R. Aryan)
On this 18th day of March, 2013 District & Sessions Judge (N-E) (I/C)
Karkardooma Courts, Delhi.
CA No. 10/13