Delhi District Court
Nali Vamsidhar vs Ravinder Singh on 13 September, 2022
IN THE COURT OF DR.JAGMINDER SINGH:
ADDITIONAL SESSIONS JUDGE-03 - (SOUTH-WEST)
DWARKA COURTS: NEW DELHI
Criminal Appeal No. 133/2021
Under Sections: 138 N.I. Act
CNR No. DLSW01-010596-2021
In the matter of:
Nali Vamsidhar
S/o Sh. Krishna Reddy,
R/o Flat No. G 1/G 2, Ground Floor,
Plot No. 34 & 35, Sai Vamsika Residency,
Vinayak Nagar, Peerzadi Guda,
Hyderabad-500095 (Telangana).
....Appellant
Versus
Ravinder Singh
S/o Late Sh. Sukhbir Singh,
R/o A-95, Nand Ram Park,
Uttam Nagar, Delhi-110059.
....Respondent
Date of Institution of the Appeal : 28.10.2021
Date of Arguments : 13.09.2022
Date on which judgment was pronounced : 13.09.2022
Final Order : DISMISSED
JUDGMENT:
1. Vide this judgment, I shall dispose of the appeal filed by appellant u/s 374 of Cr.P.C. for setting aside the impugned judgment dated 06.09.2021 and Order on Sentence dated 08.10.2021 whereby Ld. Trial Court convicted the accused/appellant for the offence punishable under Section 138 Criminal Appeal No. 133/2021 Page No. 1 of 9 Nali Vamsidhar Vs. Ravinder Singh of Negotiable Instruments Act (in short "N.I. Act") and against order on sentence whereby the Ld. Trial Court sentenced the accused/appellant (hereinafter referred as accused) to undergo simple imprisonment for the period of one month along with fine of Rs.6,50,000/- be payable as compensation to complainant/respondent under Section 357 Cr.P.C. and in default payment of fine/compensation, further simple imprisonment for two months. Now, this court has to see that whether the appellant was rightly convicted or not for the offence punishable u/s 138 N.I. Act.
2. The facts in brief are that accused approached the complainant for a friendly loan of Rs.5,00,000/- as accused was in dire need of said amount and complainant provided a friendly loan of Rs.5,00,000/- to accused without any interest and accused in order to show his bonafide had issued a post dated cheque bearing No. 389243 dated 06.06.2017 for a sum of Rs.5,00,000/- in favour of complainant and when complainant presented the said cheque in the bank, it was returned unpaid vide return memo dated 15.06.2017 with remark "Kindly Contact Drawer/Drawer Bank & Present Again". Thereafter, complainant issued a legal demand notice dated 10.07.2017 but said notice was returned with remarks "unclaimed". Thereafter, complainant filed the complaint case u/s 138 N.I. Act against accused.
3. Complaint examined himself as CW1 and on finding prima-facie case against the accused, Ld. Trial Court had summoned the accused and notice u/s 251 Cr.P.C. was framed against the accused for the offence punishable under Section 138 N.I. Act vide order dated 29.01.2019 to which appellant pleaded not guilty and claimed trial.
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4. Thereafter, accused examined DW1 in his defence and complainant examined himself as CW1 in post-summoning evidence and closed his post-summoning evidence. Statement of accused u/s 313 Cr.P.C. was recorded by Ld. Trial Court in which accused did not wish to lead DE. After that, matter was adjourned for final arguments.
5. After hearing the final arguments in the matter, the Ld. Trial Court convicted the accused/appellant vide judgment dated 06.09.2021 for the offence under Section 138 of N.I. Act and vide order of sentence dated 08.10.2021, the Ld. Trial Court sentenced the appellant as aforesaid. Hence, present appeal was preferred by accused/appellant.
6. Through this appeal, Ld. counsel for accused challenged the impugned order on the grounds that the impugned judgment is based upon conjectures and surmises, same has been passed without pursuing the evidence, without appreciation of evidence of DW1, without considering the fact that the cheque in question was stolen and without considering the fact that the cheque in question was not signed by appellant/accused. Comparison of signature of the appellant/accused was not confirmed through proper evidence. There were several contradictions in the statement of complainant and without going through the relevant case laws and statutory provisions.
7. Ld. counsel for appellant/accused further argued that the complaint has been filed by complainant/respondent on concocted story. There was no any money transaction between appellant and respondent. At the given time of transaction, there was recent demonetization and in those circumstances, it was impossible of having any such amount in cash with the Criminal Appeal No. 133/2021 Page No. 3 of 9 Nali Vamsidhar Vs. Ravinder Singh respondent. The complaint was filed by the respondent without any merit and the same is liable to be dismissed and present appeal may be allowed and impugned judgment and order on sentence may be set aside and according appellant/accused is liable to be acquitted.
8. On the other hand, Ld. counsel for respondent/complainant opposed the appeal stating that the appellant had taken friendly loan from the respondent and in discharge of his liability, he had issued cheque in question for a sum of Rs.5 lakhs and the same was dishonoured when presented for encashment. The appellant failed to repay the loan amount even after issuance of legal notice, therefore, the complaint was filed and necessary evidence was led on behalf of the respondent. Ld. Trial Court after proper appreciation of evidence, rightly convicted and sentenced the appellant. There is no any illegality or infirmity in the impugned judgment and order on sentence. Present appeal is without any merit and same is liable to be dismissed.
9. I have considered the submissions of both parties and have also gone through the appeal file and Trial Court Record. I have also gone through the relevant case laws as well as statutory provisions.
10. Notice under Section 251 Cr.P.C. was served upon the appellant vide order dated 29.01.2019 for the offence punishable under Section 138 of NI Act. The appellant pleaded not guilty and regarding his defence, he answered the question as, "the cheque in question does not bear my signatures. I have not issued the cheque in question to the complainant as I am not having any acquaintance with the complainant. I have not taken Criminal Appeal No. 133/2021 Page No. 4 of 9 Nali Vamsidhar Vs. Ravinder Singh the alleged loan from the complainant. I have not received the legal notice sent by the complainant. I have brought a certificate issued by ICICI Bank Ltd. which states that the cheque No.389243 (cheque in question), from Account No.007501028795, has been destroyed in our system on 17.01.2015."
11. To prove the contents of the complaint, the respondent examined himself as CW1 and tendered his affidavit as Ex.CW1/A in which he corroborated the contents of the complaint. Through this affidavit he placed on record the documents Ex.CW1/1 i.e. original cheque in question, Ex.CW1/2 i.e. cheque return memo, Ex.CW1/3 i.e. copy of legal notice issued on behalf of the complainant/respondent to the appellant/accused, Ex.CW1/4 i.e. postal receipt, Ex.CW1/5 i.e. tracking report and Ex.CW1/6 i.e. postal envelope containing legal notice which returned back with the remark as "unclaimed".
12. As far as service of legal notice is concerned, the address mentioned on the envelope of legal notice/Speed Post is same as mentioned in the memo of parties and in this regard, ld. Trial Court had rightly observed that mere denial of service of legal notice is not sufficient to rebut the presumption of service. Further, dispute of service of legal notice comes to an end in view of law laid down by Hon'ble Supreme Court of India in case "C.C. Alavi Hazi v. Palapetty Mohd. & Ors. (2007) 6 SCC 555".
13. The main defence raised by the appellant before learned Trial Court was that the cheque in question does not bear his signature and further that he had not issued the cheque in question to the complainant. In statement under Section 313 Criminal Appeal No. 133/2021 Page No. 5 of 9 Nali Vamsidhar Vs. Ravinder Singh CrPC, he had further stated that the cheque in question was stolen from him and in this regard, he had lodged a complaint with his banker to destroy the same on 17.01.2015.
14. There is a statutory presumption against the holder of the cheque that he had received the said cheque in furtherance of legal liability. During evidence, complainant/respondent was examined as CW1 and in his detailed cross examination, nothing came on record sufficient to discredit his testimony. Regarding availability of the funds, he had stated that he was having arrangement of some cash and remaining amount he had borrowed from some friend who was involved in the same professional as of the complainant/respondent. No any question was asked to the complainant/respondent on behalf of the appellant regarding demonetization at the given time.
15. CW1/respondent admitted that he had not mentioned in his ITR of the relevant year regarding giving of loan to the appellant in cash. However, non-mentioning of loan in ITR is not sufficient to prove that he had not given any loan to the accused/appellant or discharging the appellant from his liability under Section 138 of NI Act.
16. As far as signatures of the accused upon the cheque in question are concerned, the same was a defence raised by the appellant/accused, therefore, it was the liability of the accused/appellant to prove that the cheque in question does not bear his signature. However, during evidence, the appellant/accused had never produced any evidence to show that signature upon the cheque in question does not belong to him. Cheque return memo Ex.CW1/2 further reveals that the cheque was not returned because of the reason 'signature differs' but has Criminal Appeal No. 133/2021 Page No. 6 of 9 Nali Vamsidhar Vs. Ravinder Singh been returned because of other reasons.
17. Moreover, perusal of Trial Court Record reveals that an application for comparison of signature of the accused through CFSL was moved on behalf of the complainant/respondent and same was opposed on behalf of the appellant by way of his reply dated 07.05.2019. If the appellant had not put his signature upon the cheque in question, then he should not have any reason to oppose the application moved on behalf of the respondent for comparison of the signature. Even during defence evidence, the appellant had not taken any step to prove his defence that he had not signed the cheque in question, through any expert or through his banker. Therefore, there is no merit in the defence raised by the accused that he had not signed the cheque.
18. It is further contended on behalf of the appellant that the cheque in question was a stolen cheque. However, during defence evidence, the appellant had not proved on record his complaint or missing report before the police or other authorities regarding theft of the cheque. Appellant had examined Dy. Manager, ICICI Bank as DW1 who placed on record certificate Ex.DW1/1 stating that the cheque in question was destroyed on 17.01.2015. DW1 had not placed on record any document that on whose application or upon which material the said cheque was destroyed. During cross examination, DW1 has even failed to prove his authorisation to appear before the Court to appear as a witness on behalf of ICICI Bank. He admitted in his cross examination that he cannot say whether the account holder had submitted any copy of police complaint/DDR/FIR/NCR at the time of intimation to the bank that the cheque had been stolen. He further admitted that in ordinary course of business, the Criminal Appeal No. 133/2021 Page No. 7 of 9 Nali Vamsidhar Vs. Ravinder Singh cheque is destroyed only if the customer gives request for the same in writing. Appellant/accused had not taken any step to prove on record his any such intimation to the bank in writing through any evidence.
19. Therefore, Court finds that ld. Trial Court had rightly came at the conclusion that the appellant/accused had not succeeded in rebutting the presumption of legal liability against him even on the scale of preponderance of probabilities and on the other hand, complainant/respondent had successfully proved necessary ingredients of the offence punishable under Section 138 NI Act against the appellant/accused.
20. The impugned judgment has been passed by learned Trial Court with proper reasoning and same does not require any interference by this Court and is accordingly confirmed.
21. I have also gone through the order on sentence dated 08.10.2021 whereby the appellant was sentenced to simple imprisonment for one month and to pay a fine of Rs.6,50,000/- which shall be paid to the complainant/respondent as compensation under Section 357 Cr.P.C. within sixty days and in default, the complainant was further ordered to undergo SI for two months.
22. Court finds that learned Trial Court had awarded appropriate sentence to the accused/appellant. However, the sentence part is partly modified to the effect that amount of compensation shall be paid to the complainant/respondent within sixty days from today i.e. decision of appeal. In default of payment of fine/compensation, the appellant/accused shall further undergo sentence of simple imprisonment of seven days.
23. The present appeal is hereby dismissed.
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24. Trial Court record alongwith copy of this judgment be sent back to the Ld. Trial Court.
25. Appeal file be consigned to record room after due compliance.
Pronounced in the open court on
Dated : 13.09.2022 Digitally signed
by JAGMINDER
JAGMINDER SINGH
SINGH Date: 2022.09.13
16:16:25 +0530
(DR. JAGMINDER SINGH)
ASJ-03 & Special Judge (Companies Act)
Dwarka Courts (SW)/New Delhi/13.09.2022
Note: This judgment contains Nine (09) pages and having my signature on each page.
Digitally signed by JAGMINDER JAGMINDER SINGH SINGH Date: 2022.09.13 16:16:33 +0530 (DR. JAGMINDER SINGH) ASJ-03 & Special Judge (Companies Act) Dwarka Courts (SW)/New Delhi/13.09.2022 Criminal Appeal No. 133/2021 Page No. 9 of 9 Nali Vamsidhar Vs. Ravinder Singh