Delhi District Court
Jaspal Singh vs Nand Lal on 22 August, 2015
IN THE COURT OF Ms. REKHA RANI
DISTRICT & SESSIONS JUDGE (WEST) : DELHI
Criminal Appeal No. 58/15
Unique Case ID No.02401C0R0402072015
Jaspal Singh
S/o Sh. Gurdeep Singh
R/o D18, Mukhram Garden,
New Delhi110018. . . . . Appellant
versus
Nand Lal
S/o Sh. Chander Prakash
R/o 57, NPL Apartment
HBlock, Vikas Puri
New Delhi - 110018. . . . . Respondent
Date of Institution : 03.08.2015
Date of reserving the order : 22.08.2015
Date of pronouncement : 22.08.2015
JUDGMENT
1. Vide the instant appeal bearing CA No.58/15, the appellant / convict has assailed his conviction and sentence vide order dated 07.07.2015 / 13.07.2015 passed in complaint case bearing CC No.237/1/08 under Section 138 of Negotiable CA No. 58/15 Page 1/12 Instruments Act (in short N.I. Act) vide which the appellant / accused was sentenced to undergo simple imprisonment for 18 months and was further ordered to pay compensation to the complainant of an amount of Rs. 2,40,000/ under Section 357 (3) Cr.P.C. and in default of payment of compensation, he would undergo further simple imprisonment for a period of six months.
2. The order is assailed inter alia on the following grounds : • That there is no document evidencing advancement of loan by the complainant to the appellant / convict. • That the complainant is an income tax payee and his income tax return does not indicate advancing of said loan of Rs.1,20,000/ to the appellant / accused.
• That the appellant has no licence for doing money lending business • That complainant has nowhere mentioned the date of advancing of alleged loan and the cheques have been filled in different ink and different hand writing.
• That the complainant has himself not explained as to how he had arranged the loan amount of Rs.1,20,000/ to give it to appellant / accused as he himself is surviving on pension and CA No. 58/15 Page 2/12 as to how he gave the said money as friendly loan without any interest.
• That the appellant did not have legally enforceable debt or liability towards the complainant and the cheques were given to him in blank towards security of loan of Rs. 40,000/ taken by Ravinder Kaur Sodhi which loan has been liquidated by her.
3. The facts in nutshell leading to filing of the complaint bearing CC No. 237/1/08 as narrated by the complainant is that he advanced Rs.1,20,000/ in the second week of May 2007 to the appellant / accused as friendly loan which he had undertaken to liquidate within a year and to discharge the debt, he issued three cheques bearing (1) No. 124143 dated 13.06.2008 drawn on ICICI Bank Ltd, Vikas Puri Branch, G2, Vikas Puri, New Delhi for a sum of Rs.50,000/, (2) No. 099075 dated 14.06.2008, drawn on ICICI Bank Ltd, DelhiPalam Et, Shiv Vani Model School, New Delhi Palam Road, Mahavir Enclave, New Delhi 45 for a sum of Rs.50,000/ and (3) No. 124145 dated 17.06.2008 drawn on ICICI Bank Ltd, Vikas Puri Branch, G2, Vikas Puri, New Delhi for a sum of Rs.20,000/ , which cheques were proved in evidence as Ex.CW1/1 to Ex. CW1/3 which on presentation by the CA No. 58/15 Page 3/12 complainant with his banker were returned with the remarks "insufficient funds" vide returning memo Ex.CW1/7 to Ex.CW1/9 followed by mandatory legal demand notice issued by the complainant which is proved as Ex.CW1/13 which was duly received by the appellant/ accused vide acknowledgment card proved as Ex.CW1/12 are not withstanding receipt of legal notice, nothing is paid by appellant in discharge of the debt.
4. On appreciation of presummoning evidence, appellant / accused was summoned and notice under Section 251 Cr.P.C for offence under Section 138 of NI Act was served upon the appellant/ accused to which he pleaded not guilty and claimed that he had no debt or liability towards the complainant. However he admitted that the cheques in question bear his signatures.
5. The records of Complaint Case bearing CC No. 237/1/08 were requisitioned which have been received and perused. Arguments addressed on behalf of both sides by their Ld. counsel heard.
6. Since the appellant/ accused admitted his signatures on cheques in question, Ld. Trial Court had drawn presumption CA No. 58/15 Page 4/12 under 118 (2) and 139 of the N.I. Act placing reliance on the judgment in case titled as Rangappa v. Mohan, AIR 2010 SC 1898 and the onus shifted on the appellant / accused to prove his defence that the cheques in question were not given in discharge or liquidation of debt towards the complainant.
7. The appellant raised defence that he had given cheques in question to the complainant as he stood surety for the loan taken by Ms. Ravinder Kaur Sodhi from the complainant which line of defence was disbelieved by the Ld. Trial Court for the reasons which are reproduced underneath : " ... The defence taken by the accused during trial is that the cheques in question were given by him to the complainant as he stood surety for the loan taken by Ms. Ravinder Kaur from the complainant. However, the defence taken by the accused in his application u/s 145 (2) NI Act is that his relevant cheque book was lost and he filed the complainant in this regard. During cross examination, accused admitted his application u/s 145 (2) NI Act Ex.DW1/A. He stated in his cross examination that he can not bring any proof regarding filing of complaint for misplacement of his relevant cheque book. Despite given several opportunities, accused did not examine Ms. Ravinder Kaur as witness to support his defence. No particular suggestion was given on behalf of the accused to complainant regarding advancement of loan by complainant to Ms. CA No. 58/15 Page 5/12 Ravinder Kaur for which accused alleged that he stood surety. Further, no document regarding advancement of loan to Ms. Ravinder Kaur by the complainant and given cheques in question for security / guarantee of loan to Ms. Ravinder Kaur are placed on record by the accused. Accused has taken contradictory defence in his application u/s 145 (2) of NI Act and at the stage of recording of the statement u/s 281 read with 313 Cr.PC. "
8. Hon'ble Apex Court in case of M/s Laxmi Dyechem v. State of Gujraj & ors., Criminal Appeal Nos. 18701909 of 2012, decided on 27.11.2012 qua Section 138 of NI Act observed that " ... the object underlying the provision contained in the said Chapter was aimed at securing faith in the efficacy of banking operations and giving credibility to negotiable instruments in business and day to day transactions by making dishonour of such instruments an offence ... ". The Hon'ble Apex Court in case titled State of Tamil Nadu v. M.K. Kandaswami, (1975) 4 SCC observed that while interpreting a penal provision u/s 138 of NI Act, endevour should be made to preserve the workability and efficacy of the statute rather than an interpretation that would render the law otiose or sterile.
CA No. 58/15 Page 6/12
9. Since the appellant / accused has admitted that he has signed the cheques in question, the ld. Trial Court rightly drew presumption under Section 118 and 139 of NI Act placing reliance on case Rangappa v. Sri Mohan ( Supra ).
10. Ofcourse appellant / accused could discredit the case of the complainant by raising probable and plausible defence which he failed to do. The defence is that he issued the cheques in question as he stood surety for the loan taken by Ms. Ravinder Kaur Sodhi from the complainant, which defence was rightly disbelieved by the Ld. Trial Court for the reasons given in para 15 of the impugned order which observations are reproduced above and with which this Court concur.
11. Ld. counsel for the appellant / accused has relied on the judgment in Vipul Kumar Gupta v. Vipin Gupta 2012 (4) JCC (NI) 248 and K. Subrammani v. K. Damodra Naidu in criminal appeal No. 2402 of 2014, decided on 13.11.2014 to contend that the omission to mention date of advancement of loan in the complaint or in the affidavit of the complainant is a fatal flaw and to contend that since the cheques in question were filled in different ink and in different hand writing, the appellant has been able to puncture the CA No. 58/15 Page 7/12 complainant's case irretrievably on account of which he deserves to be acquitted.
12. He has further contended that failure of the complainant to reflect the amount of loan of Rs.1,20,000/ in his income tax return for the relevant period coupled with the fact the he was not licenced for money lending also creates a dent in the story of the complainant.
13. All the grounds taken by the ld. counsel for the appellant have been duly considered by the learned trial Court vide reasoned order, with which this Court concurs. The accused/appellant has not disputed that he signed the cheques in question, which are Ex.CW1/1 to Ex.CW1/3 although he has deposed that same was blank when he signed the same. There is no explanation as to why he signed blank cheques. The onus that the same was not given in discharge of legally enforceable debt or liability has not been dislodged by the appellant/accused. Merely, questioning the complainant's financial capacity or his not filing income tax returns does not help the appellant / accused to evade his liability and the fact that the cheque was given blank also does not absolve the CA No. 58/15 Page 8/12 appellant/accused from the liability created therein. There is no plausible explanation as to how and who had forced the appellant / accused to sign the blank cheque.
14. It is clear from the trial Court's record that the accused does not dispute that the cheque bears his signatures and as such learned trial Court was right in drawing presumption under Section 118 and 139 of the Act, in view of Apex Court Judgment in Rangappa's case (supra). Appellant / accused also does not dispute that the cheque was drawn from his saving bank account No. 629601509761, ICICI Bank, Vikaspuri, New Delhi. He also does not dispute the evidence that the cheques when presented were returned unpaid for "insufficient funds" vide returning memos Ex.CW1/7 to CW1/9.
He further did not dispute the evidence to the effect that in the said bank account he did not have sufficient credit balance available for the said cheques to be honoured. He also did not dispute that the demand notice Ex.CW1/3 was duly received by him and notwithstanding the receipt of said notice, he did not make the payment pursuant thereto.
15. The contention of the appellant/accused that the complainant's failure to file any income tax returns reflecting the CA No. 58/15 Page 9/12 advancement of the loan in question to the accused is fatal flaw in the complainant's case can be discarded by placing reliance on the Judgment Krishna P. Murajkar Vs. Joe Ferrao 2013 ACD 942 Bombay, which is to the effect: "Any default in paying tax is a matter between the defaulter and revenue authorities and it is not a ground in law to deny avenues open to the complainant for recovering the loan amount".
16. Further contention of the learned counsel for the appellant that complainant is indulging in money lending without a valid license, cannot have a bearing on this case which is not a civil suit, in view of Judgment of Delhi High Court in Kajal Vs. Vikas Marwah - Crl. Appeal No. 870 of 2013 decided on 27.03.2014, wherein it has been held that:
"Section 3 of the Punjab Registration of Money Lender's Act, 1938, provides that notwithstanding anything contained in any other enactment for the time being in force, a suit by money lender for the recovery of a loan shall, after the commencement of the Act be dismissed unless the money lender at the time of institution of the suit is registered and hold a valid license or holds a certificate from the Commissioner granted under Section 11 of the Act, specifying the loan in respect of which the suit is CA No. 58/15 Page 10/12 instituted or if he is not already a registered or licensed money lender, he satisfies the court that he has applied for such registration or license but the application is pending. The aforesaid provision does not debar a money lender from instituting a complaint under Section 138 of the Negotiable Instruments Act, 1881, which is a remedy enforceable before a criminal court, and totally independent of a civil suit."
17. For the foregoing reasons, I endorse the conviction recorded by the learned trial Court rejecting the story of misusing of the cheque by the complainant. Learned counsel for the appellant has argued that learned trial Court improperly raised the presumption under Section 118 (b) and 139 of the Act by misplacing reliance on Rangappa's case (supra). In his submissions, sufficient material has not been adduced to show existence of any legally enforceable debt or liability. I find no merit in the arguments to above effect. The complainant has discharged burden of proof in respect of necessary ingredients on the basis of which presumptions arise under Section 118 (b) and 139 of the Act to the effect that the cheques in question had been issued for consideration and for discharge of debt or other liability owed by the drawer in favour of the holder / payee. The defence CA No. 58/15 Page 11/12 evidence led by the accused does not inspire confidence not even when tested on the standard of preponderance of probabilities. Thus the presumptions have not been rebutted.
18. Heard both sides on sentence. Complaint was preferred in the year 2008. It pertains to cheques, which were issued for being encashed in the year 2008. On account of contest based on false story the proceedings got protracted in defiance of the law laid in Rajesh Aggarwal & Ors. Vs. State and Anr. [2010 (2) The Law Reports on Crime 188 (Delhi)] and thereby depriving the complainant of his lawful dues all along. I do not find the order on sentence to be harsh or unjust.
19. In view of above, impugned order of conviction and sentence is, therefore, upheld. Appellant / accused be taken into custody and sent to jail to serve the sentence imposed by learned trial Court under impugned order dated 13.07.2015.
Trial Court record be sent back alongwith copy of this judgment.
File of appeal be consigned to Record Room.
Announced in Open Court ( Rekha Rani )
today the 22nd day of District & Sessions Judge (West)
August, 2015. Tis Hazari Courts, Delhi
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