Delhi District Court
Jaspal Singh vs Chander Prakash on 22 August, 2015
IN THE COURT OF Ms. REKHA RANI
DISTRICT & SESSIONS JUDGE (WEST) : DELHI
Criminal Appeal No. 57/2015
Unique ID No. 02401R0402052015
1. Jaspal singh
S/o Sh. Gurdeep Singh
2. M/s. Sankalp Promotion
(Through Partner & Sole Operator of
Bank Account Jaspal Singh
Both R/o D18, Mukhram Garden,
New Delhi110018. . . . . Appellant
versus
Chander Prakash
S/o Sh. Jhangi Rai
R/o 57, NPL Apartment,
HBlock, Vikash Puri,
New Delhi110018. . . . . Respondent
Date of institution : 03.08.2015
Judgment Reserved on : 22.08.2015
Date of pronouncement : 22.08.2015
JUDGMENT
1. This judgment shall dispose of an appeal i.e. Crl. App. No. Crl. App. No.57/15 Jaspal Singh & Anr. vs. Chander Prakash Page1of13 57/15 instituted on 03.08.2015 by the appellant Jaspal Singh against the respondent namely Chander Prakash whereby the appellant has assailed the impugned order dated 07.07.2015 passed by Ms. Meenu Kaushik, Ld. MM (N/W) Rohini, Delhi in Complaint Case No.130/1/08 under Section 138 of the Negotiable Instruments Act (in short 'N.I. Act'), vide which the appellant was held guilty and convicted for the offence punishable under Section 138 of the N.I. Act and was sentenced to undergo simple imprisonment of 18 months. The appellant/ accused was also directed to pay a compensation of Rs.4,00,000/ to the complainant, in default of payment of same, he was further directed to undergo simple imprisonment for a period of six months.
2. The appellant assailed the impugned order interalia on the grounds : • date of advancement of alleged loan is not mentioned by the complainant in his complaint and affidavit;
• that there is no documentary evidence of advancing of said loan;
• that the complainant has not reflected the said loan amount in his incometax return;
• that the complainant has failed to give plausible explanation as Crl. App. No.57/15 Jaspal Singh & Anr. vs. Chander Prakash Page2of13 to how he managed funds for advancement of huge amount of Rs. 2 Lacs when he is only a pensioner and how he advanced the said loan without any interest;
• that complainant is not licensed to lend money.; • that contents of the cheques were filled in different ink and different handwriting;
• that six blank cheques were given by the appellant to the complainant as security/ guarantee for securing repayment of loan by Smt. Ravinder Kaur Sodhi and as Smt. Ravinder Kaur Sodhi has already repaid the loan amount to the complainant, the appellant does not have any legally enforceable debt or liability towards the complainant.
3. The case of the complainant culminating in filing the Complaint Case bearing CC NO.130/1/08 in nutshell is that he advanced a friendly loan to the appellant on his request in third week of June 2007 which was undertaken to be repaid by 30.06.2008 and to secure the liquidation of the said amount, the appellant issued cheques bearing No.279001, 278940, 237841 in the sum of Rs.1,00,000/, Rs.50,000/ and Rs.50,000/ dated 10.07.2008, 12.07.2008 and 14.07.2008 respectively, all drawn on ICICI Bank Crl. App. No.57/15 Jaspal Singh & Anr. vs. Chander Prakash Page3of13 Ltd., Vikas Puri Branch, Vikas Puri, New Delhi. On presentation, the said cheques were returned dishonoured vide bank return memos Ex.CW1/7 to Ex.CW1/9 dated 11.07.2008, 14.07.2008 and 15.07.2008 respectively with remarks "Account Closed". The complainant issued mandatory legal notice dated 26.07.2008 Ex.CW 1/6, which was served on the accused/ appellant herein. However, neither the notice was replied nor any payment was made by the appellant pursuant to the service of the notice.
4. On appreciation of presummoning evidence recorded under Section 200 CrPC, the accused was summoned and to notice under Section 251 Cr.P.C., he pleaded not guilty.
5. Notice of the appeal was issued to the complainant who has put in appearance and contested the same.
6. The records of Complaint Case bearing CC No. 130/1/08 were requisitioned which have been received and perused.
7. Arguments addressed on behalf of both sides by their Ld. counsel heard.
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8. The accused/ appellant herein admitted his signatures on the cheques in question and therefore, Ld. Trial Court had drawn presumption under Sections 118 and 139 of N.I. Act, while placing reliance on the judgment of the Hon'ble Apex Court in Rangappa vs. Mohan AIR 2010 SC 1989 which is to the effect that : "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
9. Ld. Trial Court observed that all the three ingredients of Section 138 of N.I. Act in terms of judgment of Hon'ble Apex Court in Krishna Janardhan Bhat vs. Dattatraya G. Hegde AIR 2008 SC 1325 have been proved in the present case, which ingredients are as follow :
(i). that there is a legally enforceable debt;
(ii). that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which pre supposes a legally enforceable debt; and
(iii). That the cheque so issued had been returned due to insufficiency of funds.
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10. Having drawn presumption in favour of the complainant in terms of judgment of Hon'ble Apex Court in Rangappa vs. Mohan (supra), onus was shifted to the appellant to create a dent in the case of the complainant. Story of the accused was disbelieved by Ld. Trial Court by observing that: "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 accused in his application u/s 145(2) of N.I. Act is that his relevant cheque book was lost and he filed the complaint in this regard. No complaint for loss of cheque book is placed on record by the accused to support his defence. Despite given several opportunities, accused did not examine Ms. Ravinder Kaur as witness to support his defence. Neither any defence evidence is adduced by accused nor any particular suggestion was given on behalf of the accused to complainant regarding advancement of loan by complainant to Ms. 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 giving 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 Crl. App. No.57/15 Jaspal Singh & Anr. vs. Chander Prakash Page6of13 145(2) N.I. Act and at the stage of recording of the statement u/s 281 r/w Section 313 CrPC."
11. 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.
12. 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 Crl. App. No.57/15 Jaspal Singh & Anr. vs. Chander Prakash Page7of13 hand writing, the appellant has been able to puncture the complainant's case irretrievably on account of which he deserves to be acquitted.
13. He has further contended that failure of the complainant to reflect the amount of loan of Rs. two lacs 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.
14. 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 appellant/accused from the liability created therein. There is no plausible explanation as to how Crl. App. No.57/15 Jaspal Singh & Anr. vs. Chander Prakash Page8of13 and who had forced the appellant / accused to sign the blank cheque.
15. 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. 629605012313, ICICI Bank, Vikaspuri, New Delhi. He also does not dispute the evidence that the cheques when presented were returned unpaid as "Account Closed" 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 dated 26.07.2008 Ex.CW1/16 was duly received by him and notwithstanding the receipt of said notice, he did not make the payment pursuant thereto.
Vide judgment dated 29.04.1999 in NEPC Micon Ltd. & Ors. Vs. Magma Leasing Ltd., Hon'ble Supreme Court held that: "where cheque is returned by the bank unpaid on the ground that the account is closed, would it mean that cheque is returned as unpaid on the ground that the amount of money standing to the credit of that account Crl. App. No.57/15 Jaspal Singh & Anr. vs. Chander Prakash Page9of13 is insufficient to honour the cheque. In our view, the answer would obviously be in the affirmative because cheque is dishonoured as the amount of money standing to the credit of that account was nil at the relevant time apart from it being closed. Closure of the account would be an eventuality after the entire amount in the account is withdrawn. It means that there was no amount in the credit of that account on the relevant date when the cheque was presented for honouring the same. The expression the amount of money standing to the credit of that account is insufficient to honour the cheque is a genus of which the expression that account being closed is specie".
16. The contention of the appellant/accused that the complainant's failure to file any income tax returns reflecting the 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".
17. Further contention of the learned counsel for the appellant that complainant is indulging in money lending without a Crl. App. No.57/15 Jaspal Singh & Anr. vs. Chander Prakash Page10of13 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 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."
18. Appellant has been unable to caste even a shadow of doubt or create a dent in the case of the complainant. The defence put forth by him lacks credibility, in view of the fact that admittedly he never asked the complainant to return the blank signed cheque nor he Crl. App. No.57/15 Jaspal Singh & Anr. vs. Chander Prakash Page11of13 made any complaint to the police.
19. 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 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 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 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.
20. 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 Crl. App. No.57/15 Jaspal Singh & Anr. vs. Chander Prakash Page12of13 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.
21. 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 this the 22nd day of District & Sessions Judge / (West) August, 2015 Tis Hazari Courts, Delhi Crl. App. No.57/15 Jaspal Singh & Anr. vs. Chander Prakash Page13of13