Delhi District Court
Ramesh Kumar Gupta vs Satyam Finlease Pvt. Ltd on 6 January, 2016
IN THE COURT OF Ms. REKHA RANI
DISTRICT & SESSIONS JUDGE (WEST) : DELHI
Criminal Appeal No. 95/2015
Unique ID No. 02401R0592502015
Criminal Appeal No. 96/2015
Unique ID No. 02401R0592552015
Criminal Appeal No. 97/2015
Unique ID No. 02401R0592572015
AND
Criminal Appeal No. 98/2015
Unique ID No. 02401R0592612015
Ramesh Kumar Gupta
S/o Late Sh. Kasmiri Lal
R/o B150, Naraina Vihar,
New Delhi110028. . . . . Appellant
versus
Satyam Finlease Pvt. Ltd.
Through its Director
Mr. Sunil Batra
107A, Shivlok House1,
Karampura Commercial Complex,
New Delhi110015. . . . . Respondent
Date of institution : 12.11.2014
Judgment Reserved on : 02.01.2016
Date of pronouncement : 06.01.2016
Crl. App. No.95/15 , 96/15, 97/15 & 98/15 Ramesh Gupta vs. Satyam Finlease Pvt. Ltd.
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JUDGMENT
1. Vide this common judgment, I shall dispose off aforesaid four appeals instituted on 12.11.2014 by the appellant/ convict Ramesh Gupta whereby the appellant has assailed the impugned judgment dated 25.09.2014 and impugned order on sentence dated 13.10.2014 passed by Sh. Gaurav Gupta, Ld. MM01 (N.I. Act), SouthWest, Dwarka Courts, Delhi in four Complaint Cases bearing CC No.4934/14, 4933/14, 4932/14 & 4935/14 respectively under Section 138 of the Negotiable Instruments Act (in short 'N.I. Act').
2. For the sake of convenience, the particulars of each case are drawn in tabular form which are as under : Appeal Complaint No. Cheque Imprison Compensa Loan amount No. number, ment tion awarded allegedly date & taken by the amount appellant CA CC4934/14 No.760167 SI for Six Rs.5,10,000/ Rs. 5 Lacs 95/15 (Old dt. 05.03.13 months (ID SI for Six No.265/13) for Rs.5 months) Lacs CA CC4933/14 No.760171 SI for Six Rs.10,20,000/ Rs. 10 Lacs 96/15 (Old dt. 18.03.13 months (ID SI for Six No.297/13) for Rs.10 months) Lacs CA CC4932/14 No.760168 SI for Six Rs.5,10,000/ Rs. 5 Lacs 97/15 (Old dt. 13.03.13 months (ID SI for Six No.290/13) for Rs.5 months) Lacs CA CC4935/14 No.760170 SI for Six Rs.10,20,000/ Rs. 10 Lacs 98/15 (Old dt. 15.03.13 months (ID SI for Six No.294/13) for Rs.10 months) Lacs Crl. App. No.95/15 , 96/15, 97/15 & 98/15 Ramesh Gupta vs. Satyam Finlease Pvt. Ltd.
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3. The appellant assailed the impugned judgment and order on sentence interalia pleading : • that Ld. Trial Court failed to appreciate that the presumption under section 118(a) and under section 139 of N.I. Act are rebuttable and the appellant had duly rebutted the presumption during trial;
• that Ld. Trial Court failed to appreciate the evidence of DW1 i.e. the appellant himself;
• that Ld. Trial Court failed to appreciate that the complainant failed to prove that there existed legally recoverable debt or liability of the appellant;
• that Ld. Trial Court failed to appreciate that no case is made out u/s 138 of N.I. Act as the cheque in question was admittedly given as security to the complainant and the same was misused by the complainant;
• that Ld. Trial Court failed to appreciate that the complainant cannot recover the loan amount by filing separate cases against both principal borrower and guarantor;
4. Notices of the appeals were issued to the complainant who has put in appearance and contested the instant appeals.
5. TCR of aforesaid four Complaint Cases were requisitioned which have been received and perused. I have heard the appellant in person and Sh. Sunil Batra, Director of the complainant company in person and have carefully perused the entire record.
Crl. App. No.95/15 , 96/15, 97/15 & 98/15 Ramesh Gupta vs. Satyam Finlease Pvt. Ltd.
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6. The case of the complainant culminating in filing the aforesaid Complaint Cases, in nutshell, is that the appellant had availed the loan as indicated above from the complainant and in order to discharge his liability, he issued aforesaid post dated cheques all drawn on State Bank of Bikaner & Jaipur in favour of the complainant. It is further submitted that on presentation, the said cheques were returned with the remarks 'Funds Insufficient' and thereafter, legal notice was served upon the appellant and on failure of the appellant to make the payment against the cheques in question within fifteen days of service of the legal notice, the aforesaid complaints under Section 138 of the Act were filed.
7. On appreciation of presummoning evidence recorded under Section 200 CrPC, the appellant was summoned and he was served with notice under Section 251 Cr.P.C. on 25.07.2013 to which he pleaded not guilty and claimed trial.
8. In his defence, the appellant has stated that he had taken a single loan of Rs.5,00,000/ against a total mortgage amount of Rs.10,00,000/ vide a mortgage deed dated 04.05.2011 and hence, an amount of Rs.5,00,000/ was paid vide cheque No.514808. However, the balance amount of Rs.5,00,000/ was never paid to him despite request. It was also the defence of the appellant that complainant took blank cheque bearing his signatures from him and it was assured that cheque will be returned to him on repayment of Crl. App. No.95/15 , 96/15, 97/15 & 98/15 Ramesh Gupta vs. Satyam Finlease Pvt. Ltd.
Page4of12 the loan. In his statement recorded u/s 313 Cr.P.C., the appellant has also stated that the cheques in question were blank signed security cheques which have been misused by the complainant.
9. Appellant argued that only Rs.5 Lacs were given to him by the complainant by cheque and remaining Rs.25 Lacs were never given to him in cash as alleged and the complainant got his signatures on certain documents fraudulently. He further stated that he had written a letter that he received Rs.5 Lacs from the complainant whereas he had executed documents worth Rs.30 Lacs and therefore, the complainant should pay balance of Rs.25 Lacs to him. Finding no such letter on record, the Court asked the appellant during the course of arguments about the said letter but the appellant was unable to tell the date, month or year of any such letter.
10. Perusal of trial court record shows that the appellant issued the aforesaid cheques. As he himself admitted his signatures on the same, initial presumption under Sections 118 and 139 of N.I. Act can be drawn, 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 Crl. App. No.95/15 , 96/15, 97/15 & 98/15 Ramesh Gupta vs. Satyam Finlease Pvt. Ltd.
Page5of12 Instruments Act has to be raised by the Court in favour of the respondent."
11. Having drawn presumption in favour of the complainant in terms of judgment of Hon'ble Apex Court in Rangappa vs. Mohan (supra), onus is shifted to the appellant to create a dent in the case of the complainant. During the course of arguments, the appellant submitted that his signatures were obtained on these documents fraudulently. However, he has not explained as to what sort of fraud was played upon him and how he was induced to sign these documents.
12. Perusal of record further shows that the appellant executed loan agreement, promissory note, receipt and loan confirmation letter dated 04.05.2011 in favour of the complainant. The promissory notes and receipts in all the cases are identical except the amount and date. Vide the loan confirmation letter, the appellant confirmed the loans taken by him totalling to Rs.30 Lacs. The loan confirmation letter reads as under : " Date:04.05.2011 To M/s. Satyam Finlease Pvt. Ltd.
107A, Shivlok HouseI, Karampura Commercial Complex New Delhi110015 Dear Sir, SUBJECT:CONFIRMATION OF LOANS TAKEN BY ME.
Crl. App. No.95/15 , 96/15, 97/15 & 98/15 Ramesh Gupta vs. Satyam Finlease Pvt. Ltd.
Page6of12 I have borrowed a total sum of Rs.10,00,000/ (Rs. Ten Lacs only) i.e. Rs.5,00,000/ (Rs. Five Lacs Only) through Cheque No.514808 Dated 05.04.2011 drawn on UCO Bank Punjabi Bagh New Delhi110024 and Rs.5,00,000/ (Rs. Five Lacs only) by Cash on 05.04.2011. I acknowledged the receipt of Rs.10,00,000/ (Rs.Ten Lacs only) and also acknowledge execution of Registered Mortgage deed dated 04.05.2011 of First Floor of my House No.B 150, Naraina Vihar, New Delhi110028, in the name of above named company before the office of SubRegistrar Kapas Hera New Delhi.
In addition to the above loan, I also borrowed :
1. Rs.5,00,000/ (Rs. Five Lacs only) by Cash on 19.04.2011
2. Rs.5,00,000/ (Rs. Five Lacs only) by Cash on 20.04.2011
3. Rs.10,00,000/ (Rs. Ten Lacs only) by Cash on 03.05.2011
4. Rs.10,00,000/ (Rs. Ten Lacs only) by Cash on 04.05.2011 from above named company.
This is to confirm that I have taken the above mentioned loans from above named company and I have signed all loan related documents such as the Acknowledgment of loans, Promissory Notes, Receipts and indemnity BondcumGuarantee Agreement. I issued my personal cheques towards the repayment of each loan amount.
I hereby confirm that all the above loan amounts are to be read in conjunction with each other. The registered Mortgage shall not be cancelled till the total loan amount of Rs.40,00,000/ (Rs. Forty Lacs only) along Crl. App. No.95/15 , 96/15, 97/15 & 98/15 Ramesh Gupta vs. Satyam Finlease Pvt. Ltd.
Page7of12 with agreed interest due, is repaid by me to your company."
13. Besides the oral testimony of the appellant, there is nothing on record to suggest that he had not taken the loans in question or that he had handed over blank cheques as security. The loan documents executed by the appellant along with loan confirmation letter reproduced above fortifies the case of the complainant. Appellant has not denied execution of loan documents by him. He has not explained as to why he executed loan documents acknowledging loan of Rs.40 Lacs when he allegedly took loan of only Rs.5 Lacs. I, therefore, find no substance in the defence of the appellant or any infirmity in the impugned judgment.
14. Appellant has also taken an objection that complainant could not have advanced loan of more than Rs.20,000/in cash in violation of Section 269 SSS of the Income Tax Act and that the alleged loan of Rs.40 Lacs was not shown in the balance sheet or incometax return of the complainant.
15. The appellant having admittedly signed the cheques in question cannot be allowed to wriggle out of the liability created thereunder by raising frivolous plea that the same were given in blank signed security cheques. The onus that the same were not given in discharge of legally enforceable debt or liability has not Crl. App. No.95/15 , 96/15, 97/15 & 98/15 Ramesh Gupta vs. Satyam Finlease Pvt. Ltd.
Page8of12 been dislodged by the appellant. Merely, questioning the complainant's financial capacity or his not filing income tax returns or balance sheet does not help the appellant to evade his liability and the fact that the cheques were given blank also does not absolve the appellant from the liability created therein. There is no plausible explanation as to how and who had forced the appellant to sign the blank cheques. The contention of the appellant that the complainant's failure to file any income tax returns reflecting the advancement of the loan in question to the appellant is fatal flaw in the complainant's case can be discarded by placing reliance on the Judgment in the case of 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".
16. Appellant also submitted that his staying behind the bars will not help the complainant in recovery of loan amount. He also submitted that he may be given time to sell his property bearing No.B150, Naraina Vihar, Delhi, market value whereof is worth crores of rupees, to liquidate loan amount which submission was vehemently repelled by the complainant by saying that appellant is making false promises now in the Court in appeal for the first time only to procrastinate proceedings. It was submitted that if appellant had any serious intention of paying back the loan, he would have Crl. App. No.95/15 , 96/15, 97/15 & 98/15 Ramesh Gupta vs. Satyam Finlease Pvt. Ltd.
Page9of12 made efforts at least after passing of impugned judgment. It was also submitted that loan was advanced in the year 2011 and till date, appellant has not bothered to pay back a penny.
17. The appellant also submitted that he has two grown up daughters and one son and therefore, his conviction will cast a social stigma on them and the same would not be conducive to their reputation and his daughters will face difficulty in their marriage. The appellant further submitted that no purpose will be served if he is sent to jail and the complainant should be concerned with repayment of the debt which he will not be able to pay while he is in jail. He further submitted that he owns an immovable property worth crores of rupees which he is willing to sell to pay off the debt of the complainant for which he seeks six months time which proposal is vehemently turned down by the complainant submitting that the appellant is only trying to gain time without having any intention to pay as he has made no efforts to pay back the loan since the passing of the judgment by Ld. Trial Court on 25.09.2014.
18. 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 Crl. App. No.95/15 , 96/15, 97/15 & 98/15 Ramesh Gupta vs. Satyam Finlease Pvt. Ltd.
Page10of12 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."
19. The appellant admittedly owns an immovable property bearing No.B150, Naraina Vihar, Delhi worth crores of rupees and yet he did not bother to pay back huge loan of Rs.40 Lacs. The amount was borrowed way back in the year 2011. 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 2011. 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).
20. 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. The Crl. App. No.95/15 , 96/15, 97/15 & 98/15 Ramesh Gupta vs. Satyam Finlease Pvt. Ltd.
Page11of12 complainant has discharged burden of proof in respect of necessary ingredients on the basis of which presumption 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 appellant in favour of the holder / payee. The defence taken by the appellant does not inspire confidence.
21. In view of the foregoing reasons, all the aforesaid appeals are dismissed. The impugned conviction and order on sentence are, therefore, upheld. I may mention here that objection of the appellant that complaint cases are not maintainable both against the principal borrower as well as the guarantor is adjudicated vide judgment passed today in appeals filed by the guarantor in Criminal Appeals bearing CA No.99/15, 100/15, 101/15 & 102/15.
22. Appellant be taken into custody and sent to jail to serve the sentence imposed by Ld. Trial Court vide impugned order on sentence dated 13.10.2014 in all the Complaint Cases. Copy of this judgment be placed in all the appeal files.
A copy of this judgment be supplied to the appellant/ convict. TCRs be sent back forthwith along with copy of the judgment. Appeal files be consigned to Record Room.
Announced in Open Court ( Rekha Rani )
today this the 6th day of District & Sessions Judge / (West)
January, 2016 Tis Hazari Courts, Delhi
Crl. App. No.95/15 , 96/15, 97/15 & 98/15 Ramesh Gupta vs. Satyam Finlease Pvt. Ltd.
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