Delhi District Court
Pawan Chawla vs Manish Verma on 5 September, 2013
IN THE COURT OF SH. R.K. GAUBA: DISTRICT & SESSIONS
JUDGE (SOUTH DISTRICT): SAKET NEW DELHI
Criminal Appeal No.48/2013
ID No: 02406R0045612013
Pawan Chawla
son of Sh. T. S. Chawla
R/o C10, Amar Colony, Lajpat Nagar4,
New Delhi 110065. .... Appellant
Versus
Manish Verma
son of Sh. Vinod Verma
R/o 272/12, Amrit PuriB,
Garhi, East of Kailash,
New Delhi. .... Respondent
Instituted on: 18.02.2013
Judgment reserved on: 05.09.2013
Judgment pronounced on: 05.09.2013
J U D G M E N T
1. This criminal appeal was preferred on 18.02.2013 seeking to assail the judgment dated 16.01.2013 and order on sentence dated 17.01.2013, both passed by Sh. Sunil Beniwal, Metropolitan Magistrate 03 (N.I. Act), (South) on the file of criminal case No. 78/1 of 2010. Vide the impugned judgment, the appellant was held guilty and convicted for the offence under Section 138 Negotiable Crl. Appeal No. 48/2013 Pawan Chawla Vs. Manish Verma Page 1 of 11 Instruments Act. Vide the impugned order, the trial court awarded rigorous imprisonment for six months with directions for payment of Rs. 8,42,000/, as compensation to the opposite party within a period of 30 days. The order on sentence recorded that in case of default in the payment of compensation, the same shall be recovered under Section 421 Cr.P.C., i.e., in the same manner as prescribed for realisation of fine.
2. On notice, the respondent has appeared with counsel to contest the appeal on basis of trial court record.
3. I have heard Sh. Hifzur Rehman, advocate for the appellant and Sh. Raghav Kapoor, advocate for the respondent. I have gone through the trial court record.
4. It is apposite to take note briefly of the background facts leading to the impugned judgment. As per the complaint presented by the respondent (hereinafter referred to as "the complainant") before the Metropolitan Magistrate on 11.02.2010, the appellant (for convenience hereinafter referred to as "the accused") had taken a friendly loan of Rs. 4,21,000/ from the complainant and, in consideration of the receipt of the said amount, the accused had handed over a cheque bearing no. 528550 dated 16.12.2009 drawn on account no. 02942000008935 in HDFC Bank Ltd., A9, Ring Road, Lajpat NagarIV, New Delhi24 (Ex. CW 1/1). The Crl. Appeal No. 48/2013 Pawan Chawla Vs. Manish Verma Page 2 of 11 complainant claimed that at the time of handing over the cheque for valuable consideration, the accused had assured him that he had sufficient funds in the bank account and the cheque would be encashed without any default. The complainant claimed to have presented the said cheque in the bank for encashment on 17.12.2009 but the same was returned without payment vide bank memo dated 19.12.2009 with remarks "funds insufficient" (Ex. CW 1/3). The said memo was returned to the complainant by his banker under the cover of returning advice dated 21.12.2009 (Ex. CW 1/2).
5. The complainant alleged that after return of the cheque without payment he had contacted the accused but he would avoid on one pretext or the other. He claimed to have issued a demand notice dated 12.01.2010 (Ex. CW 1/4) calling upon the accused to pay the amount equivalent to the cheque within a period of 15 days on receipt of the said notice. The notice was sent by registered post on 12.01.2010 vide receipt Ex. CW 1/5 and under postal certificate on the same day vide document Ex. CW 1/6. The copy of the notice sent by registered post is stated to have been delivered at the address of the accused as per acknowledgment card Ex. CW 1/7 which bears the date 19.01.2010. It bears the postal rubber stamp impression dated 19.01.2010. The complaint was, thus, presented Crl. Appeal No. 48/2013 Pawan Chawla Vs. Manish Verma Page 3 of 11 on 11.02.2010 with allegations that inspite of the said notice accused had failed to make the payment.
6. On the basis of preliminary inquiry, process was issued against the appellant vide order dated 16.12.2010.
7. After the presence of the appellant had been secured and compliance made with Section 207 Cr.P.C., he was put to trial through notice under Section 251 Cr.P.C. issued and served on 14.10.2011, in answer to which, the appellant pleaded not guilty and claimed trial. He explained his defence at that stage by stating that the cheque in question does not bear his signatures, though conceding that it pertained to his bank account. He disputed the genuineness of the negotiable instrument by claiming that the rest of the contents of the cheque have not been filled in by him. He claimed that the complainant had promised to arrange loan for him and had taken the cheque in question as a blank document without his signatures with the understanding that as and when the loan was sanctioned, the same shall be filled up and his signatures would be obtained. He claimed that the complainant had not arranged any loan for him and also did not return the cheque in question inspite of repeated requests and had mischievously filled in the cheque by forging his signatures so as to misuse it.
8. After the plea in answer to the notice under Section 251 Cr.P.C. Crl. Appeal No. 48/2013 Pawan Chawla Vs. Manish Verma Page 4 of 11
had been recorded on 14.10.2011, the appellant sought time to move appropriate application under Section 145(2) Negotiable Instruments Act for seeking permission of cross examining the complainant. The Magistrate granted time for the purpose and posted the matter for 16.11.2011.
9. On 16.11.2011, the appellant failed to appear before the Magistrate even though the matter was called several times. Eventually, the Magistrate observed in his proceedings that no application under Section 145(2) Negotiable Instruments Act had been moved. He noted that in terms of the directions of Hon'ble High Court in the case of Rajesh Aggarwal Vs. State & ors in Crl. M. C. No. 1996/2010 & Crl. M. A. No. 7672/2010, the case could be tried summarily and was to be fixed for defence evidence. However, having regard to the fact that the appellant was absent, he proceeded to issue nonbailable warrant (NBW) with notice under Section 446 Cr.P.C. to his surety returnable for 21.01.2012.
10.On 21.01.2012, the appellant appeared with counsel. He moved an application for cancellation of NBW. The Magistrate considered the said application but was not satisfied with reason for non appearance on the previous date. He rejected the application and took the appellant into custody. He noted that no application had been moved on behalf of the appellant under Section 145(2) Crl. Appeal No. 48/2013 Pawan Chawla Vs. Manish Verma Page 5 of 11 Negotiable Instruments Act inspite of sufficient time being granted and fixed the matter for statement of the appellant (accused) under Section 313 Cr.P.C. to be recorded on 04.02.2013.
11. Vide the order passed later in the course of the same day, on the application of the appellant, he was again admitted to bail.
12.On 04.02.2013, the Magistrate took on record application under Section 145(2) Negotiable Instruments Act that had been moved on the same day. He heard submissions of the opposite side but taking note of the past conduct, he dismissed the application observing that the stage of crossexamination was already over.
13.On 15.03.2012, for which date the matter had been adjourned, the appellant appeared with another counsel. The statement was recorded under Section 313 Cr.P.C. whereby the evidence of the complainant that had been tendered earlier on 27.04.2010 vide affidavit Ex. CW 1/1 with documents was put to the appellant to elicit his explanation.
14. The appellant denied the case of the complainant and reiterated the defence plea that had been submitted at the stage of recording of plea in answer to the notice under Section 251 Cr.P.C. on 14.10.2011, though contradicting himself by stating that the complainant had arranged a loan of Rs. Three lacs for him, out of which he claimed to have repaid Rs. 2.5 lacs.
Crl. Appeal No. 48/2013 Pawan Chawla Vs. Manish Verma Page 6 of 11
15.In his statement under Section 313 Cr.P.C. recorded on 15.03.2012, the appellant sought opportunity to lead evidence in defence. The Magistrate adjourned the case for such purposes to 17.04.2012. No witness appears to have been produced before the Magistrate on the said date as the proceedings reflect only the presence of the accused. The matter was adjourned to 17.05.2012. On 17.05.2012, on his application under Section 315 Cr.P.C. the appellant was allowed to examine himself as defence witness in addition to the request of the counsel being recorded to the effect that the accused also wanted to examine his banker. The matter was adjourned for defence evidence to be recorded n 24.07.2012.
16.On 24.07.2012, a witness from bank appeared. Another application under Section 315 Cr.P.C. was moved. The Magistrate noted the earlier order passed on similar application moved for same purpose. He granted another opportunity to the appellant to produce entire defence evidence on 04.09.2012.
17. On 04.09.2012, the manager of the Delhi Nagrik Sehkari Bank Ltd. was present in defence evidence. The appellant sought adjournment on the ground that his counsel would not be available for the day. This request was opposed. The Magistrate imposed cost of Rs. 2,000/ and also closed the opportunity for defence evidence and adjourned the matter for final arguments to be heard Crl. Appeal No. 48/2013 Pawan Chawla Vs. Manish Verma Page 7 of 11 on 19.09.2012. The arguments were eventually heard on 15.01.2013 and the judgment passed on 16.01.2013.
18.One of the grievances of the appellant in the appeal has been that the counsels engaged by him were not discharging their duties. It has been submitted on behalf of the appellant by his counsel Sh. H. Rehman, advocate that he concedes and admits that the signatures on the cheque Ex. CW 1/1 are his own signatures and that he had handed over the said duly signed to the complaint. But then, he insisted that the said cheque was given only for purposes of securing the loan. He submits that at the stage of recording of plea in answer to the notice under Section 251 Cr.P.C. he had wrongly stated facts on advise given his counsel Sh. S. Mohit, advocate, making a false submission denying his signatures on the said cheque. He submits that he submitted correct facts of loan of Rs. Three lacs and payment of Rs. 2.5 lacs there against at the stage of his statement under Section 313 Cr.P.C. recorded on 15.03.2012. He submits that he wanted to bring his defence on record by crossexamining the complainant, for which purpose he had moved application under Section 145(2) Negotiable Instruments Act but the permission was not granted, guillotining his right on ground the stage had passed. He further submits that even though he had made another attempt to bring his defence by examining Crl. Appeal No. 48/2013 Pawan Chawla Vs. Manish Verma Page 8 of 11 himself under Section 315 Cr.P.C., the counsel would not appear and, thus, opportunity obtained came to be lost.
19.Given the above narration of the proceedings conducted before the trial court, I find substance in the grievances of the appellant that he has not been able to avail effectively the opportunity for placing his side of the story or defence. It was not fair to close the opportunity of crossexamination under Section 145(2) N. I. Act, on account of default in appearance on 16.11.2011. It was not fair either to close the defence evidence when it was clear that the default was on the part of the counsel rather than that of the accused in as much as he had even secured the presence of a witness from the bank, particularly when the opposite party was being duly compensated by costs also imposed at the time of adjournment. He has submitted that he is in possession of concrete proof of repayment of loan to the complainant in instalments duly acknowledged by the latter in a diary.
20.The material on record shows that the appellant had even lodged complaint against the concerned advocate with the Bar Council of Delhi. But, his further lament is that no action has been taken by the disciplinary authority having the statutory jurisdiction over the members of the Bar.
21. In the above facts and circumstances, the judgment and order on Crl. Appeal No. 48/2013 Pawan Chawla Vs. Manish Verma Page 9 of 11 sentence cannot be upheld. The appellant deserves a fair and effective opportunity for his defence. It would not be fair to pass any comment on merits of his defence evidence prematurely without it being first allowed to be formally adduced. The counsel Sh. H. Rehman, advocate, who is now representing the accused, solemnly undertakes that he would scrupulously appear on behalf of the appellant on each and every date of hearing and cooperate with the trial court for expeditious proceedings, his request being that the matter be remanded for trial from the stage of cross examination of the complainant under Section 145(2) Negotiable Instruments Act.
22.Given the above facts and circumstance, the appeal is allowed. The judgment and order on sentence are set aside. The matter is remanded to the court of Metropolitan Magistrate for further proceedings in accordance with law. It is directed that on appearance of the parties before him, the Metropolitan Magistrate shall fix a suitable date convenient to his calender on which complainant shall appear and offer himself for crossexaminati0n by and on behalf of the appellant through counsel under Section 145(2) Negotiable Instruments Act. For such purpose, only one opportunity shall be given and if the same is not availed, the right of crossexamination shall stand closed. After the said opportunity Crl. Appeal No. 48/2013 Pawan Chawla Vs. Manish Verma Page 10 of 11 is granted, the Magistrate shall take up the case from day to day and proceed further in accordance with law so as to decide the case expeditiously, not later than two months of the date of first appearance, now being fixed for apperance before him.
23.Since the order on sentence has been set aside, the appellant shall be released from custody forthwith. He shall, however, furnish fresh bail bond in terms of original order before the Metropolitan Magistrate on the date of first appearance.
24.The parties shall appear before the Metropolitan Magistrate on 04.10.2013, the date chosen by both sides as per their mutual convenience.
25.The trial court record along with copy of this order be sent back.
26. File of the criminal appeal be consigned to Record Room. Announced in open Court today on this 05th day of September, 2013. (R.K. GAUBA) District & Sessions Judge (South District) Saket/New Delhi Crl. Appeal No. 48/2013 Pawan Chawla Vs. Manish Verma Page 11 of 11