Delhi District Court
Vide My Judgment vs State Ors. 1 Of 12 on 30 May, 2017
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL
SESSIONS JUDGE-03(NE), KARKARDOOMA COURTS, DELHI.
CA No. 10/17
PS : Karawal Nagar
Mohd. Rahees Ahmad
S/o Sh. Toukir Ahmad
R/o H. No. 703, Gali no. 28,
Jafrabad, Delhi -110094
Versus
1. The State NCT of Delhi
2. Satender Kumar
S/o Late Vijay Pal Singh
R/o B-201, Gali No. 9, 30 feet Road,
Johripur Extn., Delhi - 110094
Date of assignment : 23.01.2017
Date of Arguments : 16.05.2017
Date of Pronouncement : 30.05.2017
Judgment :
1. Vide my judgment, I shall dispose off this appeal against the
conviction dated 29.11.2016 and sentence order dated 03.12.2016
thereby convicting and sentencing the appellant to pay a fine of Rs.
3,50,000/- which shall be released as compensation to the
complainant, in default, 1 month Simple Imprisonment.
CA No. 10/17 Rahis Ahmad Vs. State Ors. 1 of 12
2. Arguments on appeal heard. It is main argument of the
Appellant /Accused that Respondent No. 2 / Complainant has
concealed the material facts and has falsely alleged that he advanced a loan of Rs. 3 Lacs to the accused against which accused issued this cheque whereas accused has categorically pleaded that the cheque is bearing his signature, but it was blank when handed over to one Chhotey Lal. It is further argued that one another cheque was also issued along with this cheque besides property documents kept as security with Chhotey Lal against loan, but this cheque has been misused by the complainant in connivance with Chhotey Lal. It is further argued that the defense of the accused has remained similar throughout trial and complainant has also admitted during cross examination that Chhotey Lal is known to him and also indulged in similar business as respondent. It is further argued that the respondent has admitted during cross examination that he has visiting terms with Chhotey Lal and it suggests that the respondent/complainant and Chhotey Lal are in collusion with each other to cheat the accused, but Ld. Trial Court has failed to appreciate this fact and has concluded this case against the accused. It is further argued that complainant had contended before the Ld. Trial Court that he has friendly relations with accused but complainant has failed to prove family relations thereby deposing that he visited the house of accused only twice or thrice during the tenure of his friendly relations and no pleasantry was ever exchanged between them and this fact has proved that complainant CA No. 10/17 Rahis Ahmad Vs. State Ors. 2 of 12 has no family relations with the accused and has only misused this cheque to extort the money and this case is based upon the concealment of material facts.
3. Ld. Counsel for Appellant has further argued that the complainant has deposed during his statement that he advanced a loan of Rs. 3 Lacs to the appellant on 10.02.2014, whereas he has not disclosed this fact either in complaint or affidavit which has proved that he has filed a false complaint on the basis of concocted facts. It is further argued that the complainant has admitted that he filled up the contents of the cheque and it was blank and this fact has fortified the defense of the accused that his cheque has been misused. It is further argued that the cheque in question was handed over to one Chhotey Lal who is money lender and is also partner of the complainant and advanced loan of Rs. 3 Lacs to him against mortgage deed Ex. DW1/C1. It is further argued that the mortgaged deed executed with Chhotey Lal has been filed before this court by the complainant despite denying his connection with Chhotey Lal and this fact has proved that the contention of accused that Respondent No-2 and Chhotey Lal are in collusion with each other stands proved, otherwise there was no occasion to the complainant to file this document before this court and this document ought to be proved by Chhotey Lal. It is further argued that one cheque was issued in favour of Chhotey Lal and was also mentioned in mortgaged deed and cheque in question is in consecutive number to CA No. 10/17 Rahis Ahmad Vs. State Ors. 3 of 12 that cheque and accused was not required to issue immediate next cheque after such a long time and duration and this fact has proved the claim of the accused that cheque has been misused. It is further argued that after issuance of cheques to Chhotey Lal, one bike was also purchased by the accused from M/s. Bhushan Auto Finance and next cheque was issued in its favour and this fact has also proved that the plea of the accused has substance. It is further argued that the testimony of accused has not been appreciated by Ld. Trial Court in proper manner and accused has also filed payment receipts issued by the company of complainant and Chhotey Lal, but all such documents have been ignored. It is further argued that the testimony of DW2 has been appreciated in different manner and the entire story of the complainant is concocted, but still Ld. Trial Court has failed to appreciate the defense of accused. It is further argued that the accused is liable to be acquitted.
4. On the other hand, Ld. APP for State has submitted that the judgment and sentence pronounced by Ld. Trial Court are not bearing any illegality or infirmity and same is liable to be affirmed.
5. Ld Counsel for respondent no. 2 has also strongly opposed the arguments of Ld. Counsel for Appellant on the ground that all the pleas taken by the accused / appellant have been dealt with by Ld. Trial Court and were found afterthought due to judgment pronounced by the Ld. Trial Court is not bearing any illegality or infirmity. It is CA No. 10/17 Rahis Ahmad Vs. State Ors. 4 of 12 further argued that Ld. Trial Court has rightly concluded this case against the appellant as a presumption of issuance of cheque against consideration was in favour of the complainant and accused failed to rebut this presumption, rather admitted that he issued the cheque and it bears his signature. It is further argued that the cheque was issued against consideration of loan and this fact has also admitted by the accused. It is further argued that the document Ex. DW1/C1 has proved that the transaction with Chhotey Lal was a separate transaction and mortgaged deed was executed between them but not with the complainant and cheque issued to complainant is different to that cheque issued in favour of Chhotey Lal. It is further argued that the complainant has deposed during his examination that loan was advanced on 10/02/2014 and after proving this fact, the complainant was not required to prove any other fact to prove consideration as the presumption of section 139 of N.I.Act was in favor of the complaint. It is further argued that the issuance of cheque is not disputed and even non-payment of amount after service of legal notice is also not disputed. It is further argued that the plea taken by accused is afterthought that two cheques were issued in favour of Chhotey Lal or that complainant has misused this cheque. It is further argued that this appeal is liable to be dismissed. In support of his arguments, Ld. Counsel for complainant / respondent has relied upon the judgments, 2007 (2) JCC (NI) 225 titled C.C. Alavi Haji Vs. Palapetty Muhammed & Anr., 2015 (2) CLJ 706 S.C. titled T. Vasanthakumar Vs. Vijayakumari, 214 CA No. 10/17 Rahis Ahmad Vs. State Ors. 5 of 12 (2014) DLT 325 A.R. Banerjee Vs. State & Anr., 2002 SCC (Cri) 14 titled K.N. Beena Vs. Muniyappan and Another, 2015 (4) CLJ 518 Del. titled Lekh Raj Sharma Vs. Yash Pal Gupta, 2013 (6) LRC 345 (Del) Jaiprakash Singh Vs. Rashmi Aggarwal, 2016 (3) CLJ 170 Del., Jane Norman Retail Pvt. Ltd. & Anr. Vs State (NCT of Delhi) & Anr.
6. I have heard the arguments and perused the record. The commencement of trial starts in summons cases Under Section 138 NI Act from the date of framing of notice u/s 251 Cr.PC which is first step of trial. In this case, notice was framed against accused on 05.04.2016 and accused admitted his signature on the cheque, but pleaded that he handed over the cheque to one Chhotey Lal along with other cheque and property document as security against loan borrowed from him. It is further pleaded that complainant has misused this cheque in connivance of Chhotey Lal otherwise accused has no transaction with complainant. Accused was not aware about the dishonor of cheque but has denied to receive legal notice on dishonor of cheque. Similar defense has been taken in application u/s 145 (2) of NI Act, but during cross examination of the witness, the defense of the accused has changed that the cheque has been taken forcibly under threat.
7. The above said defenses have not been accepted by the Ld. Trial Court and has concluded this case against the accused.
CA No. 10/17 Rahis Ahmad Vs. State Ors. 6 of 12 However, accused has filed this appeal with similar defenses and it is to be seen as to whether these defenses are sustainable or not. Accused was supposed to prove his defenses by his evidence or by the cross examination of CWs. Complainant / respondent no-2 has examined himself as CW1 to prove his case and has deposed that he has friendship with the accused for the last 5-6 years but no pleasantry was ever exchanged between them on the occasions of festivals. Ld. Counsel for the accused has argued that without change of pleasantries between the parties on festivals, it stands proved that the parties have no friendly relations. However, a friendship may not be ascertained merely by exchange of pleasantries between two friends and friendly relations may also exist even without such exchange of pleasantries. Complainant has categorically deposed that accused was in need of money to increase his business and he advanced loan of Rs. 3 Lacs on 10/2/2014 and accused issued a cheque qua this amount. This detail of loan is not disputed during cross examination by accused.
8. Ld. Counsel for the accused has argued that this date of loan is not mentioned in the complaint as well as affidavit and it is fatal to this case, but this argument has no substance. If accused has brought some details on record during cross examination without denial and such details are not contradictions to his earlier statement, then those have to be read against accused. The date of loan extracted by the accused during cross examination has proved CA No. 10/17 Rahis Ahmad Vs. State Ors. 7 of 12 the date of loan advanced to accused and this date is not denied by the accused. Complainant has also given description of the amount arranged by him to advance to accused and this fact is also not denied. Contrary to it, accused has emphasized that he handed over the cheque to Chhotey Lal from whom he borrowed the loan against mortgaging of his property against mortgage deed, but this mortgage deed has proved that it is not containing the details of cheque in question and rather containing details of another cheque which is not the subject matter of this case. Ld. Trial court has considered this mortgage deed Ex.DW1/C1 executed with Chhotey Lal and has observed that cheque number 221310 was only the subject matter of that loan advanced by Chhotey Lal and not cheque in question. Any document is to be read in terms of its contents only and nothing beyond it. Accused has orally deposed that this cheque was given to Chhotey Lal whereas it is not part of the document, due to this oral testimony of accused is hit by section 91 and 92 of Evidence Act. Accused has examined himself as DW1 and has deposed that numbers of both cheques handed over to Chhotey Lal were mentioned in the mortgage deed but only one cheque number is mentioned in the deed and the testimony of accused is against the contents of the document and is not liable to be considered.
8. Further, accused has deposed that Farooq introduced him to Chhotey Lal to borrow loan, but Farooq was not present at the time of advancing loan or execution of mortgage deed due to his CA No. 10/17 Rahis Ahmad Vs. State Ors. 8 of 12 testimony is not of an eye witness. He has no personal knowledge about this loan transaction. Chhotey Lal has not been examined by the accused in his defense to prove any fact beyond the contents of the mortgage deed and, in the absence of examination of Chotey Lal, it cannot be said that the story of the accused is believable.
9. Besides it, the accused has taken a defense that complainant is the partner of Chhotey Lal and has been running a firm Oim Groups. Accused has produced some receipts and passbook Ex.DW1/B and Ex.DW1/B1 to Ex. DW1/B4 in support of his arguments, but these receipts have not proved that this firm is partnership firm of the complainant. These receipts are bearing different names of agents i.e. Shiv Kumar and Dinesh without proving as to what is their concerned with the complainant or Chhotey Lal. Rather passbook has disclosed the name of one Surety to the loan namely Bijender Singh, but accused has not disclosed as to who is this surety and why this Bijender Singh has not been examined before this court. Bijender Singh could have proved as to whether two cheques were handed over to Chhotey Lal against this loan or not, but accused preferred to examine Farooq instead of Bijender and this fact could not be proved.
10. Further, There is no evidence on record that complainant is connected to Sangam Properties which is being allegedly run by the complainant and Chhotey Lal. DW1 has admitted that the name and CA No. 10/17 Rahis Ahmad Vs. State Ors. 9 of 12 address of Sangam Properties is not mentioned in Ex. DW1/A and this fact could not be proved that both have any concerned with each others. Rather the defense of the accused has changed further during cross examination thereby suggesting to the CW1 that cheque was forcibly taken by the complainant. This suggestion has demolished the case of the accused that he was not aware as to how the cheque came into possession of the complainant. As such, the plea taken by accused could not be proved in any manner that he did not issue cheque in favor of the complainant and, both the contradictory defenses have proved that the defense taken by the accused is afterthought.
11. Further, Ld. Trial Court has considered the entries of the Passbook proved by the accused and all the entries are in haphazard manner and are not believable. The receipts are not in sync of the entries of passbook. As such, these documents have failed to prove the connection of the complainant with the alleged loan advance by Chhotey Lal against mortgage deed and documents are correctly rejected by the Ld. Trial Court.
12. Further, dishonor of cheque is not disputed, but service of legal notice is disputed, whereas legal notice Ex.CW1/C was sent at the correct address of the accused vide postal receipts Ex.CW1/D and Ex.CW1/E. Postal track report Ex.CW1/F has proved that the notice was served upon the accused personally. Even DW1 has CA No. 10/17 Rahis Ahmad Vs. State Ors. 10 of 12 deposed that he informed Farooq about the receiving of legal notice and this fact has proved that accused received the legal notice. As such, it stands proved that the legal notice was duly served upon the accused and admittedly and has not made the payment of the cheque amount within 15 days despite service of legal notice.
13. As such, the defense of the accused that cheque was given in blank is not a defense in view of A.R. Banerjee v. State & Anr. 214(2014) DLT 325 that the filling of the particulars in cheque is not material alteration and is no defense. The presumption of lawful consideration u/s 118 r/w 139 of N.I. Act of cheque is in favour of the complainant and it was to be rebutted by the accused with cogent evidence and could not be proved merely by taking defense as held in 2015 (4) CLJ 518 Del Lekh Raj Sharma v. Yash Pal Gupta, 2016 (3) CLJ 170 Del. Jane Norman Retail Pvt. Ltd. & Anr. v. State (NCT of Delhi) & Anr, 2013 (6) LRC 345 (Del) Jai Prakash Singh v. Rashmi Aggarwal, Iftikhar Alam v. Naved Hussain Kidwai 2012 (1) LRC 172 (Del.), 2013 (3) RCR (Criminal) 944 C. Keshavamurthy v. H.K. Abdul Zabbar and 2002 SCC (Cri) 14 titled K.N. Beena v. Muniyappan And Another. The facts of all such judgments are applicable on the fact of this case as in the present case also the appellant has admitted his signature on the cheque and has failed to rebut the presumption of consideration. As such, the judgment pronounce by the Ld. Trial Court is not bearing any illegality or infirmity and all the defenses taken by the accused CA No. 10/17 Rahis Ahmad Vs. State Ors. 11 of 12 are afterthought.
14. Keeping in view of the facts and circumstances of the case, I am of the considered opinion that this appeal filed by the appellant has no merit and is hereby dismissed. Conviction as well as sentence orders passed by Ld. Trial Court are hereby affirmed. DD of the fine amount already on record be released to complainant through Ld. Trial Court. TCR be sent back along with copy of judgment. File is consigned to record room.
Announced in open court (Devender Kumar)
today on 30.05.2017 Additional Sessions Judge-03
(NE): Karkardooma Courts, Delhi.
CA No. 10/17 Rahis Ahmad Vs. State Ors. 12 of 12