Delhi District Court
Jai Prakash vs The State on 25 April, 2014
1
IN THE COURT OF MS. HEMANI MALHOTRA
ASJ-05 (CENTRAL) :TIS HAZARI, DELHI
CA No.26/14
Unique ID No. 0240IR0370492013
Jai Prakash
S/o Late Sh. Ram Gupta
R/o House No. R-12,
Shankar Pur,
Delhi ...............Appellant
Versus
1.The State
2.Smt.Sita Sharma,
W/o Late Sh.Raj Kumar,
R/o C-25, East Vinod Nagar,
Indra Marg, Delhi-92 .........Respondents
Date of institution of the appeal : 27.07.2013
Date of conclusion of argument / reservation of Judgment : 25.04.2014
Date of pronouncement of Judgment : 25.04.2014
JUDGMENT:
1. Present criminal appeal has been preferred against the judgment dated 21.06.2013 and order on sentence dated 29.06.2013 passed by the learned MM in complaint case No. 162/1/12 whereby the appellant has been convicted u/s 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for one year and to pay a compensation amount of Rs.7,00,000/- to the respondent No.2, in default of which, to undergo further simple imprisonment for six months.
2. It is the admitted case of the parties that the deceased Raj Kumar Sharma, Husband of the complainant was employed as a driver in Bennett Coleman & Company Limited since 27 June 1962 and the accused was a contractor as sole proprietor of Jai Travels of cars and scooter stand. It is not in CA No.26/14 Jai Prakash Vs. State Page No. 1 of 13 2 dispute that the accused and deceased Raj Kumar Sharma had friendly terms and they had developed family relations with each other.
3. As per contents of para 4 of the affidavit of the accused, they used to have friendly short-term loan transactions with each other and used to take and give dasti cash amount from each other. The case of the complainant is that a friendly loan of Rs 7 Lacs was given by Late Shri Raj Kumar Sharma to accused on 1-12-2003, which transaction was acknowledged by the accused in his own handwriting, dated 1/12/2003 on a non-judicial stamp paper of Rs 10/- Ex.CW1/D undertaken to return the said money latest by 5/9/2004. The further case of the complainant was that the accused had given post-dated cheque dated 26/5/2004 bearing cheque number 450488 in the sum of Rs 7 Lacs drawn on Vaish Co-operative Adarsh Bank Limited from account number 1378 proved as Ex. CW1/D. Admittedly, Shri Raj Kumar Sharma had died on 28/5/2004. The cheque presented by the complainant/widow of Raj Kumar Sharma from the joint account of herself and deceased Raj Kumar Sharma was returned dishonoured vide memo dated 3/8/2004 Ex.CW1/E on the ground that the account stood already closed. It will be worthwhile to mention here itself that the bank had returned the cheque as dishonoured. The bank did not claim that the drawer's signatures i.e. signatures of the accused differed with the specimen signatures available with the bank.
4. The accused in his affidavit had claimed in para 5 that the deceased Raj Kumar Sharma had taken a loan of Rs 2 Lacs from him which was not returned during his lifetime. The accused who had filed a criminal case as well as a civil case against the widow and son of deceased Raj Kumar Sharma did not file any civil suit claiming Rs 2 Lacs from the legal heirs of Shri Raj Kumar Sharma. In para 10 of his affidavit, the accused had claimed that on 23/6/2004, he had received a telephone call from Ravinder Sharma @ Bobby, s/o Late Shri Raj Kumar Sharma to visit his residence CA No.26/14 Jai Prakash Vs. State Page No. 2 of 13 3 immediately. The accused being close friend of deceased Raj Kumar Sharma immediately rushed to his residence where his widow, son and two-three bad elements forced him to acknowledge the liability of Rs 7 Lacs in his own handwriting and signatures on stamp paper dated 1/12/2003 which they had already arranged. It was also claimed that they forced him and his driver to sign two other stamp papers at the threat of his life. He, however, sent a complaint to police authority dated 29/6/2004 Ex.DW1/7. In para 14 of his affidavit, he alleged to have filed a civil suit bearing suit no. 973/06 claiming declaration and damages etc vide plaint Ex.DW1/9. He also claimed to have sent notice cum reply dated 7/10/2004 Ex.DW1/10. He also claimed to have filed criminal complaint Ex.DW1/20 in which statement of his driver Ajay was also recorded.
5. It has been admitted during the argument that the criminal complaint has been dismissed. The perusal of Ex.CW1/D writing acknowledging the existing liability of Rs 7 Lacs payable by the accused shows that the liability stands admitted. It is to be seen whether this writing was obtained forcibly on 23/6/2004 as claimed by the accused. The stamp paper of this writing purports to have been purchased by the accused on 10/11/2003. The accused has not examined the stamp vendor with his register to refute this proved fact. In his affidavit, as already mentioned, he has claimed that he was forced to acknowledge the writing on stamp paper dated 1/12/2003. In this affidavit, he did not say that the stamp paper was dated 10/11/2003 and he was made to sign on 23/6/2004 as on 1/12/2003. Had this incident happened as claimed by the accused and he had mustered courage to make a complaint to DCP East District on 29/6/2004 vide Ex.DW1/7, I fail to understand as to why he did not personally submit this complaint to the SHO or ACP or DCP or the Police Commissioner. Dispatch of such a serious complaint by post, which fact has not been proved, itself is suspicious. In this complaint, Ex.DW1/7, there is no mention of presence of widow of Late Shri Raj Kumar Sharma In this CA No.26/14 Jai Prakash Vs. State Page No. 3 of 13 4 complaint, the accused had claimed that initially, Bobby Sharma had intended that the accused should acknowledge the liability of Rs 7 Lacs in favour of his mother but subsequently, he changed his mind and obtained the writing in the name of his deceased father. If this writing, as claimed by the accused, was forcibly obtained on 23/6/2004 when Shri Raj Kumar Sharma had already died, it was in normal course of business more appropriate to get the acknowledgment of liability in favour of the widow or the son of Shri Raj Kumar Sharma.
6. In para 8 of plaint, Ex.DW1/9 of civil suit filed on 4/10/2004, it was claimed that he had received telephonic call from Sita Sharma, widow of Shri Raj Kumar Sharma on 23/6/2004 calling him at her residence. This version is different than what was claimed in his affidavit that it was Bobby Sharma who had called him telephonically.
7. It is also significant that the driver of the accused was not examined by him in the trial court, who was a material witness. He was, however, examined in the criminal complaint (Ex.DW1/18) on 21/12/2006. According to him, on 23/6/2004 he had taken accused to the house of Late Shri Raj Kumar Sharma and he had waited outside. When the accused did not return up till 3.20 pm i.e. after more than four hours, he had gone inside where he found that the accused was being manhandled, rebuked and beaten and when he objected, they also gave him beatings and got his signatures on two blank papers as well as one stamp paper which was in the handwriting of the accused. This was never the case of the accused. Needless to repeat, the criminal complaint filed by the accused against the widow and son of Shri Raj Kumar Sharma has already been dismissed. In the complaint sent by registered AD to SHO PS IP Estate dated 21/12/2004 Ex. DW1/20 also, there is no mention of the driver of the accused having been forced to sign the writing acknowledging the liability of Rs 7 Lacs alleged to have been forcibly obtained on 23/6/2004 predated CA No.26/14 Jai Prakash Vs. State Page No. 4 of 13 5 1/12/2003. In view of these contradictions and abnormal conduct of the accused in not personally lodging a criminal complaint with the concerned PS on 23/6/2004 or soon thereafter, I find no substance in the stand of the accused that his writing was forcibly obtained from him on 23/6/2004. I therefore, hold that the accused had acknowledged his liability to pay a sum of Rs 7 Lacs in favour or Late Shri Raj Kumar Sharma on 1/12/2003 on a stamp paper purchased by the accused himself on 10/9/2003.
8. The next question which calls for consideration is whether cheque Ex.CW1/C was issued by the accused himself as post dated cheque dated 26/5/2004. As already mentioned, the drawee bank The Vaish Co-operative Adrash Bank Ltd. did not return this cheque as dishonoured due to signatures not being that of the drawer Jai Prakash Gupta. There are a number of signatures of accused on the record of the trial court which on being compared with the one on the disputed cheque appear to be his. It is not the case of the accused that he had kept blank cheques duly signed by him with stamp of his firm. There is no allegation or averment or evidence that the writing on the cheque does not belong to him. Accused is a businessman doing business since long. In ordinary course of business, no businessman puts stamp of his firm on blank cheques and appends his signatures also, lest it be misused by a staff or any stranger.
9. The accused had claimed in his affidavit that he had issued cheque number 450487 dated 20.01.2001 in favour of Late Shri Raj Kumar Sharma for a sum of Rs 50,000/- which was duly encashed on 6/2/2001. In para 7, 8 and 9 the accused claimed that on 23/1/2001 while maintaining his account, he had noticed that one cheque leaf bearing number 450588 Ex.CW1/C was missing from the cheque book. He immediately approached the bank by writing letter dated 23/1/2001, ExDW1/1 informing the bank to not to encash the said cheque. He also sent a letter to the SHO, PS I.P. Estate on 24/1/2001 ExDW1/2. Subsequently, he closed his CA No.26/14 Jai Prakash Vs. State Page No. 5 of 13 6 account on 5/9/2002 vide letter ExDW1/C. Perusal of the document submitted by the accused would show that the accused has concocted this story and has played fraud in collusion with the bank. In his ill-design to defeat the claim of the complainant, as already mentioned, no sane businessman in ordinary course of business would keep duly signed blank cheques with stamp of his firm unlocked. As already mentioned, the accused has not disputed that the EwCW1/C does not bear his signatures or rubber stamp of his firm was not that of his firm. The most important circumstance which the accused himself has brought on record is his claim in para 11 of plaint, Ex.DW1/9 of civil suit number 218/04 filed by him. In this para, it was categorically asserted that after cheque number 450487 dated 20/1/2001 issued on 20/1/2001 in favour of Shri Raj Kumar Sharma was encashed on 6/2/2001. All other cheques excepting cheque number 450488 of this series had been encashed. This claim is totally false as is seen from the statement of account of the bank, Ex DW1/C. According to the accused, cheque bearing number 450487 was issued on 20/1/2001 while it was encashed on 6/2/01. In this statement of account this cheque has been shown to had been cleared on 6/2/01. Prior to 20/1/01 i.e when cheque no. 450487 was allegedly given to Sh. Raj Kumar Sharma, the subsequent cheque namely cheques nos. 450493,450495,450496,450498 and 450500 were already clear/encashed on 11/1/01,16/1/01,16/1/01,17/1/01and 17/1/01 respectively. This shows that cheque no.450487 given to late Sh . Raj Kumar Sharma was not given to him on 20/1/01 but given prior to 11/1/01 as a post dated cheque .Otherwise,subsequent cheque of this series could not have been encashed prior to 20/1/03. This statement of account very clearly shows no entry of presentation or encashment of remaining cheques i.e cheque No. 450489,450490,450491,450492,450494,450497 and 450499 including the cheque in question ie 450488.This totally falsifies the case of the accused that all cheques of this series subsequent to 450488 were encashed and points to the fraudulent conduct of the accused in keeping blank cheques CA No.26/14 Jai Prakash Vs. State Page No. 6 of 13 7 with him for use/misuse at his will.
10. Another material circumstance which belies the case of the accused is that the letter dt 23/1/01 purported to have addressed by him to his bank regarding loss/missing of cheque No. 450488 and for stopping payment of said cheque. Perusal of photocopy of letter dt 23/1/01 addressed to the bank Ex.DW2/A shows that he had made complaint regarding loss of cheque no.450488. However in this written complaint the accused has wrongly mentioned cheque no.450457 having been given to Sh. Raj Kumar Sharma on 20/1/01 as number of this cheque admittedly is 450487. In this complaint , he has claimed that after the cheque was given to Sh.Raj Kumar Sharma i.e the cheque no.450487 (wrongly mentioned as cheque No.450457) he had not issued any cheque to any one.
11. However as already noticed in the preceding para of this judgment, the cheque nos.450493,450495,450496,450498 and 450500 were already cleared by that date. In this letter there is an overwriting regarding the disputed cheque in the 4th line from the bottom which writing has been corrected between line 4 and 5 from the bottom with signatures of the accused. Significantly the photocopy of this very letter had been filed by the accused in the civil suit no 218/04 Ex DW1/1. In the photocopy there is overwriting in the 4th line from the bottom but there is no correction with signatures which appeared in Ex.DW2/A. This very clearly shows the fraudulent conduct of the accused in connivance of the bank officials.
12. Learned counsel for the accused/appellant has also vehemently urged that even if it is presumed that the alleged cheque in dispute was issued by the accused/appellant, the cheque having been issued after the closure of account maintained by the accused, initial requirement of Section 138 of the Negotiable Instruments Act if any cheque drawn on an accused mentioned is not complied with and hence, no offence u/s 138 of CA No.26/14 Jai Prakash Vs. State Page No. 7 of 13 8 Negotiable Instruments Act has been committed by the accused.
13. To support the said contention , the learned counsel for the accused has relied upon a judgment titled as Urban Cooperative Credit Society Vs State of Gujarat and Another rendered by the Gujrat High Court and reported as 2004 (1) DCR 166 wherein it was observed:-
On a bare reading of the said provisions, it becomes clear that for the commission of an offence under this Section, it is necessary that a cheque has been drawn by a person on an account maintained in a bank for payment of any amount of money................ In my opinion, the initial words " any cheque drawn on an account maintained " are important words and for committing of an offence punishable under Sec. 138 of the said Act, it is necessary that the cheque must have been drawn by a person or an account maintained by him on the date of issue of cheque. Now in the present case, we find that the contesting respondent in revision application No. 304/2001 cannot be said to have drawn a cheque on an account maintained by him on the date on which the cheque was issued, since the account was closed and the cheque was prepared and signed thereafter. In my opinion, when the above requirement has not been complied with, there is no question of commission of an offence under Sec. 138 of the Act". ................
14. It is worthwhile to mention here that the learned counsel for the accused did not bring to the notice of this Court the fact that the judgment of Urban Cooperative Credit Society Vs State of Gujarat and Another was held to be judgment per incuriam.
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15. In a case titled as Hashmikant M. Sheth Vs State of Gujarat and Another reported as 2004 Cri. L.J. 3628 while discussing the aforesaid judgment as well as the Apex Court Decision in NEPC Micon Limited, it was held that :
20.It is not in dispute that the Supreme Court in NEPC Micon Ltd. (supra) has authoritatively ruled that where cheque is returned by the bank unpaid on the ground that the account is closed it would mean cheque is returned as unpaid on the ground that the amount of money standing to the credit of that account is insufficient to honour 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. The Supreme Court has explained that 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. What is laid down as a proposition of law by the Supreme Court is that 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 spice. The Supreme Court has held for the guidelines of the Courts in the country that even though Section 138 of the Act is a penal statute, it is the duty of the Court to interpret it consistent with the legislative intent and purpose so as to suppress mischief and advance remedy.
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21.The above referred to principles have been laid down by the Supreme Court while examining the effect of closure of account after issuance of cheque. The principle laid down by the Supreme Court would apply with all force to a case where the account is first closed and thereafter cheque is issued. The interpretation sought to be placed by this court is not only consistent with the legislative intent and purpose but suppress mischief and advance the remedy.
22.What is important to notice is that dishonour of a cheque on the ground other than those enumerated in Section 138 of the Act can be culpable where dishonest intention can be presumed. The object for enacting Section 138 of the Act makes it clear that the intention of the Parliament was that honest drawer should not suffer at the mechination of dishonest drawee. Therefore, intention of a person issuing a cheque becomes pertinent where a person issues a cheque on an account closed, he treats the said account as operative and induces the person to whom the cheque is issued to believe that the same would be honoured on presentation. When the cheque drawn on an account is returned by the banker with the endorsement that the account is closed, it exhibits a complete dishonest intention of the person who issued the cheque and therefore would be an offence punishable under Section 138 of the Act.
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24.It is true that in Urban Co-operative Credit Society (supra) the learned single Judge has taken the issuance of cheque amount to the complainant , the requirement occurring in Section 138 of the Act in words " any cheque drawn on an account maintained" is not satisfied and no offence is committed. However, on the close scrutiny of the said decision, it becomes manifest that the learned single Judge had no occasion to consider the object and reason which prompted the legislature to introduce Section 138 in the statute and before distinguishing the law laid down by the Supreme Court in NEPC Micon Ltd. (supra) has not noticed and ignored pertinent observation made by the Supreme Court in paragraph 7 of the reported decision. The relevant portion of paragraph 7 which is ignored by the learned single Judge is as under:
"Further, the offence will be complete only when the conditions in the provisos (a) , (b) and ( c ) are complied with. Hence the question is, in a case where cheque is returned by the bank unpaid on the ground that the "amount of money standing to the credit of that account 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 CA No.26/14 Jai Prakash Vs. State Page No. 11 of 13 12 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 CriL3635 the expression " that account being closed" is specie."
25.If the relevant para of the reported decision of the Supreme Court which is quoted above had been brought to the notice of the learned single Judge, in all probabilities , the learned single Judge would not have taken the view which is expressed in his decision. It is well settled that judgment rendered in ignorance of binding law laid down by the Supreme Court would be judgment per incuriam and would lose all its efficacy as a binding precedent. The decision sought to be relied rendered by the learned Advocate of the petition is rendered by the learned single Judge of this Court in ignorance of binding principles laid down by the Supreme court in the case of NEPC Micon Ltd (supra) and therefore, decision of the learned single Judge will have to be regarded as a judgment per incuriam.
16. In view of the decision rendered in Hashmikant M. Sheth Vs State of Gujarat and Another, the argument of the learned counsel for the accused that no offence was committed by the accused is unsustainable. The conduct of the accused is writ large on his face. The intention of the accused from the very beginning itself was dishonest and his act fraudulent.
17. In view of the aforesaid discussion, it is proved beyond doubt that the CA No.26/14 Jai Prakash Vs. State Page No. 12 of 13 13 accused was indebted to late Sh. Raj Kumar Sharma to the tune of Rs 7 lacs and he had duly acknowledged his liability to pay a sum of Rs 7 lacs to Sh. Raj Kumar Sharma on 1/12/03. It is also proved beyond doubt that to liquidate this liability he had given cheque dt.26/5/04 Ex.CW1/C to late Sh. Raj Kumar Sharma from the account of his firm M/S Jai Travels appending his signatures as its proprietor and this cheque when presented from the joint account of late Sh.Raj Kumar Sharma and his widow Sita Sharma was dishonoured.
18. In the light of the said discussion, I am of the considered view that the appeal has no merit same is dismissed with a cost of Rs.20,000/- to be paid to the complainant / respondent.
Dictated and announced in the (Hemani Malhotra) open Court today on 25.04.2014 ASJ-05 (Central)/THC/Delhi CA No.26/14 Jai Prakash Vs. State Page No. 13 of 13