Delhi District Court
Abhay Kumar vs Pawan Kumar on 6 August, 2016
IN THE COURT OF Ms. REKHA RANI
DISTRICT & SESSIONS JUDGE (WEST) : DELHI
Criminal Appeal No. 40/2016 (New No. 54255/16)
Abhay Kumar
S/o Sh. Rajnath Singh
R/o RZ/H6A, Gali No.1, Ashok Park,
West Sagarpur, Delhi110046. . . . . Appellant
Versus
Pawan Kumar
S/o Sh. Balbir Singh
R/o H.No. F8, Prem NagarI,
70 Feet Road, Near Kirari,
Delhi110086. . . . . Respondent
Date of institution : 12.04.2016
Judgment Reserved on : 21.07.2016
Date of pronouncement : 06.08.2016
JUDGMENT
1. Vide this judgment, I shall dispose the instant appeal instituted on 12.04.2016 by the appellant assailing judgment dated 03.02.2016 and order on sentence dated 15.03.2016 passed by Ld. MM (N.I. Act
01), Tis Hazari Courts, Delhi in Complaint Case bearing CC No.806/1/13 under Section 138 of the Negotiable Instruments Act (in short 'the Act').
Crl. App. No.40/16 Abhay Kumar vs. Pawan Kumar Page 1 of 102. The appellant assailed the impugned judgment and order on sentence interalia pleading that : • Ld. Trial Court committed grave error by ignoring material contradictions in the statement of the complainant's witnesses; • Ld. Trial Court failed to appreciate that appellant never admitted blank pronote being Ex.CW1/1, original whereof was never produced before the Ld. Trial Court and mere copy was not admissible in evidence;
• Ld. Trial Court did not appreciate evidence of appellant's witnesses in right prospective;
• Ld. Trial Court failed to appreciate that complainant's case was weakened on account of his failure to file income tax returns indicating loan transaction of Rs. Five lacs therein; • Ld. trial Court has erroneously held that essential ingredients of offence under Section 138 of the Act are satisfied; • Ld. Trial Court failed to appreciate that case against the appellant could not be proved beyond reasonable doubt; and • Ld. Trial court failed to appreciate that appellant through his evidence has been able to rebut the presumption by preponderance of probabilities.
3. Notice of the appeal was issued to the complainant/ respondent herein who has put in appearance and contested the instant appeal.
Crl. App. No.40/16 Abhay Kumar vs. Pawan Kumar Page 2 of 104. TCR of Complaint Case bearing CC NO. 806/1/13 was requisitioned which has been received and perused. I have heard Sh. M.P. Singh and Sh. Ajay Kumar Ld. counsel for the appellant and Sh. Anuj Jain, Ld. counsel for the respondent and have carefully perused the entire record.
5. The case of the complainant culminating in filing the aforesaid Complaint Case, in nutshell, is that the complainant advanced friendly loan of Rs.5,00,000/ to the appellant for a period of six months and lieu thereof the appellant executed a receipt and also a Promissory Note in favour of the respondent on 26.09.2012 for an amount of Rs.5,00,000/. The appellant issued a cheque bearing No.119148 dated 16.03.2013 drawn on Canara Bank, Janakpuri, Delhi to the complainant for repayment of loan. However, when the said cheque was presented for encashment, it was returned unpaid with the remarks 'funds insufficient' vide return memo dated 09.05.2013. Therefore, the complainant issued a legal notice dated 18.05.2013 to the appellant calling upon him to pay the cheque amount within the prescribed period and on his failure to pay the amount, the aforesaid complaint case under Section 138 of the Act was filed on 02.07.2013.
6. On appreciation of presummoning evidence recorded under Section 200 Cr.P.C., the appellant was summoned and he was served Crl. App. No.40/16 Abhay Kumar vs. Pawan Kumar Page 3 of 10 with notice under Section 251 Cr.P.C. on 23.05.2014 to which he pleaded not guilty and claimed trial. The appellant stated that he took loan of Rs.50,000/ form the complainant and issued two cheques in his favour as security for repayment of said loan. He further stated that he issued one cheque for an amount of Rs. 2 lacs on asking of the complainant and other cheque was given blank. He also stated that complainant had obtained his signatures on pronote. It was also stated that he had paid back loan of Rs.50,000/ to the complainant but complainant did not return his cheques.
7. The appellant while replying to notice under Section 251 Cr.P.C. himself admitted that he signed the cheque in question. As such, Ld. Trial Court was justified in drawing presumption under Sections 118 and 139 of the 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 respondent."
8. While the appellant admitted his signatures on the cheque in question, he vehemently contended that other particulars in the cheque in question were mischievously filledin by the complainant Crl. App. No.40/16 Abhay Kumar vs. Pawan Kumar Page 4 of 10 with malafide intention to cause wrongful loss to the appellant and wrongful gain to himself.
The said plea can be discarded by placing reliance on the judgment of Hon'ble High Court in case Ravi Chopra Vs. State & Anr., Crl. M.C. 5211/2006 and Crl. M.A. No. 8864/2006, wherein it was held that:
"where the accused facing the trial for the offence u/s 138 is disputing the signature on the cheque itself, then this is a permissible defence within the scope of Section 138 of NI Act but where the signature are admitted, although the cheques are issued in blank there is an implied authority given to the payee to fill up the instrument. Section 20 of NI Act also say so."
Reliance in this regard may also be placed on the Judgment of Hon'ble High Court in Jaipal Singh Rana vs. Swaraj Pal, 149 (2008) DLT 882 wherein it was observed that there is no law that requires that particulars of the entire cheque should be filled in by the drawer himself and further on the judgment of Hon'ble High Court of Delhi in Vijender Singh vs. Eicher Motors Limited & Anrs. Crl. M.C. 1454/2011 decided on 05.05.2011 wherein it was observed that any person who issues blank signed cheque should understand the consequences of doing so.
Hence, it can be said that since, the appellant himself admitted that he issued the cheque in question in blank to the complainant and Crl. App. No.40/16 Abhay Kumar vs. Pawan Kumar Page 5 of 10 by handing over cheque in question to the complainant gave him express and implied authority to fill in his name as payee.
9. Further, it is the case of the appellant that he had taken a loan of Rs.50,000/ from the complainant, which he has already repaid. However, the appellant has not furnished any proof of repayment in the nature of any acknowledgment or receipt. Moreover, it does not stand to reason as to why appellant issued two cheques i.e. one for Rs.2 Lacs and one blank in favour of the complainant against loan of just Rs.50,000/ which he had allegedly paid back.
10. The appellant has stated that complainant / respondent has misused his cheques. In that event, Ld. Trial Court rightly questioned the appellant as to why he did not instruct his banker to stop payment of cheque in question.
11. 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 was rightly discarded by Ld. Trial Court by placing reliance on the Judgment in Krishna P. Murajkar Vs. Joe Ferrao 2013 ACD 942 Bombay, which is to the effect: Crl. App. No.40/16 Abhay Kumar vs. Pawan Kumar Page 6 of 10 "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".
12. The appellant has also assailed the Judgment inter alia on the ground that Ex.CW1/1 is not admissible in evidence. In this regard, it may be mentioned that in response to notice under Section 251 Cr.P.C. the appellant himself had submitted that complainant had obtained his signatures on pronote. Ld. Counsel for the appellant could also not point out any material discrepancy in the testimony of the complainant, which is enough to axe his claim.
13. Ld. Counsel for the appellant further submitted that appellant had complained to the police against the respondent for misuse of the cheque in question. Ld. Trial court rightly discarded the said contention by observing that: "True, the accused has relied on a police complaint filed by him that is Ex.DW1/1 and Ex.DW1/2 but the same has been filed on 01.05.2013 which was after the dishonour of the cheque in question and therefore, could have been an after thought and is not sufficient to dismantle the entire case of the complainant in the absence of other corroborative defence evidence".
14. 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 Crl. App. No.40/16 Abhay Kumar vs. Pawan Kumar Page 7 of 10 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 N.I. 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." In Goa Plast(P) Ltd. Vs. Chico Ursula D'Souza AIR 2004 SC 408, Hon'ble Supreme Court, while dealing with the objects of the Act, observed as follows: "26... The object and the ingredients under the provisions, in particular, Sections 138 and 139 of the Act cannot be ignored. Proper and smooth functioning of all business transactions, particularly, of cheques as instruments, primarily depends upon the integrity and honesty of the parties. In our country, in a large number of commercial transactions, it was noted that the cheques were issued even merely as a device not only to stall but even to defraud the creditors. The sanctity and credibility of issuance of cheques in commercial transactions was eroded to a large extent.
Undoubtedly, dishonour of a cheque by the bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious setback. Parliament, in order to restore the credibility of cheques as a trustworthy substitute for cash payment enacted the aforesaid provisions. The Crl. App. No.40/16 Abhay Kumar vs. Pawan Kumar Page 8 of 10 remedy available in a civil court is a long drawn matter and unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee."
15. On the point of sentence, it was submitted on behalf of the appellant that the appellant has three small children and that offence is not grave.
The loan was taken way back in the year 2012. Instead of making efforts to pay back the same, he tried every trick in the trade to retain unjust enrichment. He has been able to procrastinate the proceedings by taking false & frivolous pleas to avoid repayment of the loan. He has not shown any bonafide intention to liquidate the loan since the year 2012 and even after filing of the complaint case. The conduct of the appellant is, therefore, not in consonance with the aim and objective of the Act as discussed above in M/s Laxmi Dyechem v. State of Gujraj & Ors. (supra) and State of Tamil Nadu v. M.K. Kandaswami (supra) and Goa Plast(P) Ltd. Vs. Chico Ursula D'Souza (supra).
16. Keeping in view the said aim of the Act, the fact that defence put forth by the appellant lacks credibility, I endorse the conviction recorded by the Ld. Trial Court rejecting the story of the appellant of misuse of blank signed cheques in question by the complainant.
Crl. App. No.40/16 Abhay Kumar vs. Pawan Kumar Page 9 of 1017. In view of the foregoing reasons, the aforesaid appeal is dismissed. The impugned conviction and order on sentence are, therefore, upheld. Ld. Trial Court is directed to secure the presence of the appellant/ convict for undergoing the sentence imposed vide impugned order on sentence dated 15.03.2016.
TCR be sent back forthwith along with copy of the judgment. Appeal file be consigned to Record Room.
Announced in Open Court ( Rekha Rani )
th
today this the 6 day of District & Sessions Judge / (West)
August, 2016 Tis Hazari Courts, Delhi
Crl. App. No.40/16 Abhay Kumar vs. Pawan Kumar Page 10 of 10