Delhi District Court
Ram Kishore vs Mtnl Employees Co-Operative Thrift & ... on 19 January, 2013
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IN THE COURT OF MS. POONAM A. BAMBA
ADDITIONAL SESSIONS JUDGE-01
PATIALA HOUSE COURTS : NEW DELHI
Criminal Appeal No. 59/12
Ram Kishore
S/o Shri Raja Ram,
R/o C-100, 2nd Floor, Moti Nagar,
New Delhi - 110015 ... Petitioner
Versus
MTNL Employees Co-operative Thrift & Credit Society,
Room No. 101, Eastern Court,
Janpath, New Delhi - 110001 ... Respondent
Date of institution of the appeal : 13.06.2012
Date of arguments : 14.01.2013
Date of disposal : 19.01.2013
Appeal u/s 374 of the Code of Criminal Procedure against
the judgment dated 10.05.2012 and order on sentence
dated 14.05.2012 passed by Ld. ACMM
JUDGMENT
19.01.2013 1.0 This is an appeal against judgment and order of sentence of Ld. MM dated 10.05.2012 and 14.05.2012, respectively. The appellant was convicted for the offence punishable u/Sec. 138 Negotiable Instruments Act, 1881 (in short "N. I. Act") and was sentenced to pay compensation of double the amount of cheque i.e. Rs.2,20,000/- and in default to Cri. Revision No. 59/12 Page No. 1 of 10 Ram Kishore Vs. MTNL -2- undergo SI for one month.
2.0 Facts in brief as per the complaint are that the appellant was an employee of MTNL; on 05.11.2005, appellant availed emergency loan of Rs.20,000/- from the respondent i.e. MTNL Employees Co-operative Thrift & Credit Society Ltd.; again on 21.11.2005, he took regular loan of Rs.42,000/- from the respondent; there was a previous balance of Rs.38,000/-; in discharge of the said liability, the appellant issued cheque beariing no. 105024, dated 28.02.2006 for Rs.1,10,000/- drawn on State Bank of India, Shakurpur, New Delhi, in favour of the respondent; on presentation, the said cheque was dishonoured on account of insufficient funds; demand notice dated 16.03.2006 was issued by the respondent; despite service of the said notice, the appellant failed to make the payment of cheque amount; consequently, the respondent filed a complaint case u/Sec. 138 N. I. Act, in which the impugned judgment came to be passed.
3.0 The appellant has challenged the impugned Cri. Revision No. 59/12 Page No. 2 of 10 Ram Kishore Vs. MTNL -3- judgment inter-alia, on the grounds that Ld. Trial Court erred in drawing the conclusion on the basis of presumption that the cheque was issued from the account maintained by the appellant. This was despite the fact that the respondent / complainant's own witness CW2 (wrongly referred to as CW3) an official from State Bank of India, Shakurpur Branch, admitted that the said cheque was issued from the joint account Smt. Prem and Ram Kishan; he also admitted that there is no account in the name of appellant (Ram Kishore) with State Bank of India, Shakurpur and that the appellant had not issued any cheque drawn on State Bank of India. The Ld. Trial Court also failed to appreciate that the respondent's witness CW1 during his cross- examination admitted that name of the complainant on the cheque was stamped and that the appellant had not signed and issued the cheque in his presence; and that the respondent even failed to prove that the signatures on the cheque were that of the appellant. CW1 even stated in his cross-examination that he could not say whether the date and amount in the cheque were filled by the Cashier or someone else from complainant's / respondent's office. The appellant has also submitted that Ld. Cri. Revision No. 59/12 Page No. 3 of 10 Ram Kishore Vs. MTNL -4- Trial Court erred even in closing his defence evidence, thus, causing him great prejudice and that he be allowed to lead additional evidence in his defence.
4.0 On the other hand, it was argued on behalf of the respondent that this appeal should be dismissed with costs as the appellant in his statement u/Sec. 313 Cr.PC before the Ld. Trial Court did not dispute that he did not have any account with State Bank of India or that he did not issue the said cheque. It has been duly proved that the cheque was issued by the appellant in discharge of his liability / loans taken by him. It has also been proved that the said cheque was dishonoured for "insufficient funds". Thus, the Ld. Trial Court rightly convicted the appellant.
5.0 I have heard both the sides and have considered the record carefully.
6.0 Let me refer to Section 138 N. I. Act at the outset, which reads as under :
Cri. Revision No. 59/12 Page No. 4 of 10
Ram Kishore Vs. MTNL -5- "138. Dishonour of cheque for insufficiency, etc., of funds in the account. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:
Provided that ........ ...... ....."
6.1 From the plain reading of Section 138 of N. I. Act, it is evident that a person would be liable for dishonour of cheque drawn by him on his account maintained with a banker. In Cri. Revision No. 59/12 Page No. 5 of 10 Ram Kishore Vs. MTNL -6- the instant case the appellant has disputed the issuance of cheque in question by him. He has further pleaded that rather, he did not have any account with State Bank of India, Branch Office, Shakurpur. Thus there was no question of his issuing any such cheque.
6.2 Thus, what was essential to be established by the complainant / respondent herein was that the cheque issued in their favour was drawn by the appellant on his account maintained with SBI, Shakur Pur.
6.3 In support of its case, the respondent / complainant summoned before the Ld. MM, a witness CW2 Mahipal Singh, Assistant, State Bank of India, Shakurpur Branch. CW2 deposed that the cheque in question pertained to account no. 16830 / new account no. 10207151098. The relevant portion of his testimony is reproduced here under :
"..... The said bank account was opened in the name of Ram Kishore. Again said, the joint bank account was opened in the name of Smt. Prem and Ram Kishan. I have not brought Cri. Revision No. 59/12 Page No. 6 of 10 Ram Kishore Vs. MTNL -7- any record of State Bank of India in the name of Ram Kishore. ......... It is correct that I have not brought any record of opening account in State Bank of India relating to the accused Ram Kishore. I cannot say whether the accused Ram Kishore made the signatures on the said cheque. It is correct that there is no bank account in the name of Ram Kishore in State Bank of India (Shakurpur Branch, New Delhi). It is correct that Mr. Ram Kishore has not issued any cheque of State Bank of India. ....... It is correct that the joint account in the name of Ram Kishore and Smt. Prem was not opened in the State Bank of India."
6.4 From the cross-examination of the respondent's own witness CW2, it is obvious that though he once stated that the account in question was in the name of the appellant. But, from his further deposition, it appears that the appellant had no account either in single name or jointly with someone else with State Bank of India, Branch Office Shakurpur. In absence of any documentary evidence with respect to account in question, it could not be concluded that the account from which the said Cri. Revision No. 59/12 Page No. 7 of 10 Ram Kishore Vs. MTNL -8- cheque was issued was that of the appellant. 6.5 The respondent argued that the cheque was issued by the appellant is clear from the fact that cheque book from which the cheque was issued was delivered to the appellant. 6.5.1 It is seen that CW2 produced certified copy of cheque book register Ex.CW3/A. He stated that as per the same, vide Serial No. 105001 - 075, the cheque book of the said account was issued to Ram Kishore. The appellant vide his appeal has disputed that the cheque book of the said account was received by him, although, no suggestion to the contrary was put on his behalf to CW2 before the Ld. MM. Be that as it may. Even if for a while, it is accepted that the cheque book was issued to the appellant; and that he issued the cheque from the said cheque books, the same does not in any manner help the respondent. If a person receives a cheque book of some account and misuses the same, he may be liable for some other offence, but liability u/Sec. 138 N. I. Act cannot be fastened. Cri. Revision No. 59/12 Page No. 8 of 10 Ram Kishore Vs. MTNL -9- 7.0 In view of the above and in the absence of any proof that the account in question belonged to the appellant, I find that the Ld. Trial Court erred in inferring that the cheque in question was issued by the appellant from his account bearing no. 16830 / new account no. 10207151098, maintained in the joint names of his and Mrs. Prem.
8.0 The appellant has also pleaded that defence evidence was closed; he should be allowed to summon the account opening form and other relevant documents of the account to prove that the account from which the cheque in question was issued is not his. Perusal of Trial Court Record reveals that despite two opportunities given on 28.07.2010 and 01.09.2010, the appellant did not lead any evidence. As a result, defence evidence was closed vide order dated 01.09.2010. However, it would be in the interest of justice to allow an opportunity to the respondent to lead defence evidence/ summon relevant record from the bank, in order to arrive at truth.
Cri. Revision No. 59/12 Page No. 9 of 10 Ram Kishore Vs. MTNL
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9.0 In view of the above facts and circumstances, this appeal is allowed. Matter is remanded back to the Ld. MM to proceed as per law after providing an opportunity to the respondent / accused to summon bank record in defence evidence. It is made clear that the respondent shall positively lead his evidence on the date/s fixed by the Ld. MM. Appeal disposed of accordingly.
Parties shall appear before the Ld. MM on 04.02.2013.
Trial Court Record be sent back along with the copy of this judgment.
Appeal file be consigned to the Record Room. Announced in open Court (Poonam A. Bamba) Date : 19th January, 2013 ASJ-01/PHC/New Delhi Cri. Revision No. 59/12 Page No. 10 of 10 Ram Kishore Vs. MTNL