Delhi District Court
And Also At : vs Shri Rajiv Kumar on 6 February, 2016
IN THE COURT OF Ms. REKHA RANI
DISTRICT & SESSIONS JUDGE (WEST) : DELHI
Criminal Appeal No. 92/2015
Unique ID No. 02401R0580512015
Shri Ajay Saha
S/o. Shri Kirtiya Nand Saha
R/o. 91, JJ Colony, Khayala
New Delhi110018.
And Also At :
Village Sonakandar
Post Bihari, Baya Jokihar
PS Palasi, Tehsil & District Aariya
Bihar. . . . . Appellant
versus
Shri Rajiv Kumar
S/o. Shri Malik Ram
R/o. WZ109, First Floor
Street No. 16, Krishnapuri
New Delhi110018. . . . . Respondent
Date of institution : 28.10.2015
Judgment Reserved on : 28.01.2016
Date of pronouncement : 06.02.2016
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JUDGMENT
1. This judgment shall dispose of criminal appeal bearing No. 92/2015 filed by the appellant Ajay Saha whereby the appellant has assailed the impugned judgment dated 15.09.2015 and impugned order on sentence dated 29.09.2015 passed by Ms.Preeti Agarwala, Ld. MM01 (N.I. Act), Tis Hazari Courts, Delhi in Complaint Case No.573/1/11 under Section 138 of the Negotiable Instruments Act (in short 'N.I. Act'), vide which the appellant was held guilty and convicted for the offence punishable under Section 138 of the N.I. Act and was sentenced to undergo Simple Imprisonment of four months. The appellant was also directed to pay double the amount of cheque in question i.e. a sum of Rs. 2,00,000/ as compensation to the respondent as per Section 143(1) (Proviso) NI Act read with Section 357(1)(3) Cr.P.C. within one month from the date of order on sentence i.e. 29.09.2015 and in default of payment of same, he was further directed to undergo Simple Imprisonment for a period of three months.
2. The appellant assailed the impugned judgment and order on sentence interalia pleading therein : CA No.92/15 Ajay Saha vs. Rajiv Kumar Page2of11 • that he took friendly loan of only Rs. 50,000/ in the year 2009 and issued three blank cheques as security to ensure return thereof;
• that the loan amount of Rs. 50,000/ was paid back to the complainant at his shop on 20.02.2010 and when appellant demanded his three cheques which were given as security to the complainant, the complainant stated that the same was lying at his home and he would destroy the same;
• that the appellant had given three cheques, which were blank and the particulars were filled in by the complainant and complainant has misused the said cheques by filing the instant complaint case under Section 138 of the NI Act with a malicious intention to extort money from the appellant; • that the appellant did not receive the notice dated 31.05.2011 and thus, there was no occasion to respond to the same; and • that the appellant does not owe any legally enforceable liability in favour of the complainant. He examined two witnesses in his defence i.e. Jagdish Prasad as DW1 and Mukesh Sharma as DW2, who corroborated his case.
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3. Notice of the appeal was issued to the complainant/ respondent herein, who put in appearance and contested the appeal.
4. Trial Court Record was requisitioned, received and perused.
5. I have heard Shri Pradeep Kumar, Ld. counsel for the appellant and Shri Anil Khosla, Ld. counsel for the respondent.
6. The case of the complainant /respondent herein culminating in filing the Complaint Case bearing CC No.573/1/11, in nutshell, is that appellant was his employee, who started his own business after sometime and requested the complainant for a loan of Rs.1,00,000/ to enable him to expand his business. Complainant accordingly advanced a sum of Rs. 1,00,000/ to the appellant. In discharge of his aforementioned liability the appellant issued the following three cheques as follows : S. No. Cheque Amount of Date of Drawn On Exhibit No. Bearing No. Cheque Cheque 1 877774 Rs. 50,000/ 20.05.2011 State Bank of India, Ex.CW1/1 Chaukhandi, New Delhi 2 877770 Rs. 20,000/ 13.05.2011 do Ex.CW1/2 3 877768 Rs. 30,000/ 13.05.2011 do Ex.CW1/3 CA No.92/15 Ajay Saha vs. Rajiv Kumar Page4of11 which cheques on presentation for encashment were returned dishonoured by the banker of the appellant with the remarks "Funds insufficient" vide returning memos dated 24.05.2011, 18.05.2011 and 18.05.2011 Ex. CW1/4 to CW1/6 respectively.
7. Ld. counsel for the complainant has submitted that since the appellant did not deny his signatures on the abovesaid cheques, presumption under Sections 118 and 139 of N.I. Act would be attracted as held by Hon'ble Apex Court in Rangappa vs. Sri Mohan, AIR 2010 SC 1989.
8. Per contra, Ld. counsel for the appellant submitted that the above mentioned cheques were blank and were only signed by the appellant. The remaining particulars were not filled in by the appellant and that they have been mischievously filled in by the complainant with a view to extort money from the appellant despite the fact that the loan amount of Rs. 50,000/ was paid back.
The said plea was discarded by the Ld. Trial Court by placing reliance on the judgment of Hon'ble High Court of Delhi 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 CA No.92/15 Ajay Saha vs. Rajiv Kumar Page5of11 entire cheque should be filled in by the drawer himself, further relying upon the judgment in Ravi Chopra vs. State & Anr., 2008 (2) LRC (Del) wherein Hon'ble Delhi High Court observed that blank signed cheque indicates implied consent of the drawer to fill up of the cheque by the drawee at a later date and by further relying on the judgment of Hon'ble High Court of Delhi in Vijender Singh vs. Eicher Motors Limited & Anrs. Decided on 05.05.2011 wherein it was observed that any person who issues blank signed cheque should understand the consequences of doing so.
9. Ld. Trial Court further disbelieved the submission of the appellant that he has no legally enforceable liability towards the complainant as he had paid back the loan of Rs. 50,000/ to the complainant and appellant has misused the cheques, which were dishonestly retained by him. Ld. Trial Court also observed that appellant has not explained why he never instructed his bank to "stop payment" of the three cheques in question or why he did not register any police complaint regarding the misuse of the said cheques by the complainant.
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10. Ld. Trial Court further noted material discrepancies in the version of the appellant. In his application under Section 145(2) of the NI Act as well as in response to notice served on him under Section 251 Cr.P.C., the appellant submitted that he had taken friendly loan of Rs. 50,000/ from the complainant, which he had repaid. However, in his statement recorded under Section 313 Cr.P.C., he admitted that he had taken a loan of Rs.1,00,000/ and alleged that he had paid back an amount of Rs. 50,000/ leaving a balance of only Rs. 50,000/. His statement in this regard is quite important and was extracted by ld. Trial Court, which needs to be reproduced verbatim : "Out of alleged Rs. 1 lakh I had already paid Rs.50,000/ to the complainant. I am ready and willing to pay the remaining amount of Rs. 50,000/ to the complainant".
Ld. Trial Court further noted material contradictions in the testimony of Jagdish Prasad, who was examined by appellant as DW1 and Mukesh Sharma as DW2 and the ld. Trial Court observed that both the above witnesses in their crossexamination admitted that though they were eye witnesses to the loan transaction yet they could not tell the date and time when the above amount was repaid by the appellant to the complainant. While in his application under Section CA No.92/15 Ajay Saha vs. Rajiv Kumar Page7of11 145(2) of NI Act, the appellant had specifically mentioned that it was on 10.02.2010 that the amount was paid back to the complainant, DW1 Jagdish Prasad in his crossexamination dated 20.08.2015 stated that it was in June 2011 when the appellant had made said payment to the complainant, DW2 Mukesh Sharma in his examination in chief stated that the above transaction had taken place in the year 2011.
Another contradiction noted by ld. Trial Court is that in his application u/s 145(2) of N.I. Act appellant submitted that the complainant did not return him the cheques as he had assured that he would destroy the same while on the other hand, DW1 in his examinationinchief stated that the complainant had assured that the cheques in question would be returned later on.
Ld. Trial Court also observed that at the stage of final arguments, the appellant raised a plea that he had made the entire payment of Rs. 1,00,000/ to the complainant in two installments at two different times which plea was never raised by the appellant during the course of trial.
11. Qua objections of appellant that he never received legal notice dated 31.05.2011 Ex. CW1/7, ld. Trial Court quoted the observations made in the judgment of Hon'ble Apex Court in C.C.Alavi Haji vs. CA No.92/15 Ajay Saha vs. Rajiv Kumar Page8of11 Palapetty Muhammad & Anr., (2007) 6 SCC 555 to the effect that drawer who claims that he did not receive the notice sent by post can within 15 days of receipt of summons from the Court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons and if he does not do so, he cannot contend that he did not receive notice under Section 138 of NI Act.
12. 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 transactions by making dishonour of such instruments an offence ...".
13. 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." CA No.92/15 Ajay Saha vs. Rajiv Kumar Page9of11
14. Appellant has been unable to cast even a shadow of doubt or create a dent in the case of the respondent. The defence put forth by him lacks credibility and, therefore, I find no reason to interfere with the impugned judgment. I endorse the conviction recorded by the Ld. Trial Court vide impugned judgment dated 15.09.2015 rejecting the story of the appellant of misuse of the cheques in question by the complainant. The 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 were issued for consideration and for discharge of debt or other liability owed by the drawer in favour of the holder / payee. The defence evidence led by the appellant does not inspire confidence not even when tested on the standard of preponderance of probabilities.
15. The cheques in question were issued in May 2011 to secure the repayment of the loan, taken by the appellant from the complainant. The instant appeal was filed on 28.10.2015. During this period, the appellant has not shown that he made any efforts towards liquidation of the loan amount what to talk of interest thereon. He has not shown any bonafide intention to repay the loan rather he contested CA No.92/15 Ajay Saha vs. Rajiv Kumar Page10of11 vehemently the complaint case filed by the complainant by raising false and frivolous defence, as such, I do not find any reason to interfere with the impugned order on sentence. Hence, the same is upheld. The appeal is dismissed accordingly. Ld. Trial Court is directed to secure the presence of the appellant/ convict for undergoing the sentence imposed vide impugned order on sentence dated 29.09.2015.
TCR be sent back along with copy of the judgment forthwith.
Appeal file be consigned to Record Room.
Announced in Open Court ( Rekha Rani ) today this the 6th day of District & Sessions Judge / (West) February, 2015 Tis Hazari Courts, Delhi CA No.92/15 Ajay Saha vs. Rajiv Kumar Page11of11