Delhi District Court
(Judgment) Varinder Kalra vs . Amit Kumar on 3 June, 2019
(Judgment) Varinder Kalra Vs. Amit Kumar
U/s 374 (3) CrPC
CA No.14/19
IN THE COURT OF SHRI PANKAJ GUPTA: ADDL. SESSIONS JUDGE (FTC)
(NORTH-WEST): ROHINI COURTS: DELHI
Crl. Appeal No. 14/19
Unique Case ID: DLNW01-000784-2019.
Varinder Kalra
S/o Sh. B.H. Kalra
R/o 4/51, First Floor,
Moti Nagar, Delhi-110015 ...........Appellant
Vs
Amit Kumar
S/o Sh. P.G. Gupta
r/o B-5/43, Majlish Park,
Azadpur, Delhi. ...........Respondent
Date of filing of appeal : 24.01.2019
Date on which judgment reserved : 03.06.2019
Date on which judgment pronounced : 03.06.2019
JUDGMENT
1. The appellant preferred the present appeal, being aggrieved by the judgment dated 21.12.2018 and order on sentence dated 24.12.2018 passed by Ld. Metropolitan Magistrate, North West, Rohini Courts, Delhi (the trial court) whereby the appellant was held guilty and convicted for the offence under section 138 Negotiable Instruments Act 1881 (NI Act). The appellant was sentenced to undergo 03 months simple imprisonment and to pay compensa- tion of Rs. 7,05,000/- to the respondent and in default of payment, to undergo simple impris- onment of further period of three months. For the sake of convenience, the appellant and the respondent shall be referred herein as per their position before the trial court as the accused and the complainant respectively.
2. The complainant filed the complaint u/s 138 NI Act stating that he knew the accused and in the month of August 2007, the accused approached him for a loan of Rs. 4,25,000/-
Page no. 1 of 12 (Judgment) Varinder Kalra Vs. Amit Kumar U/s 374 (3) CrPC CA No.14/19 as he was in financial crises. In August 2007, the complainant after arranging the funds from his relative and from his savings, paid Rs. 4,25,000/- in cash to the accused as loan. To dis - charge his liability, the accused handed over the cheque no. 151198 dated 28.09.2007 for Rs. 4,25,000/- drawn on Punjab National Bank, New Rajender Nagar, New Delhi (the said cheque) to him and assured that the said cheque would be encashed on presentation. He presented the said cheque to its banker but the same was dishonored for the reason "Fund Insufficient" and was returned vide returning memo dated 05.10.2007. On 02.11.2007, he got issued the legal notice to the accused calling upon him to pay the cheque amount within 15 days from the date of receipt of the notice. However, the accused neither paid the amount nor replied the said notice.
3. Before the trial court, the accused denied that he had taken any loan from the com- plainant. He raised the defence that the blank cheque book duly signed by him was stolen and the said cheque was the part of that cheque book. As such, the complainant had mis- used the said cheque. Hence, he prayed that the complaint may be dismissed.
4. After trial, the trial court held the accused guilty for the offence u/s 138 NI Act and sentenced him to undergo imprisonment and pay compensation as mentioned above. Being aggrieved by the same, the appellant preferred the present appeal.
5. Notice of the appeal was issued to the complainant. In response thereto, the com- plainant appeared and prayed for dismissal of the appeal.
6. I have heard counsel for the accused and counsel for the complainant and have pe- rused the material available on record including the trial court record.
7. Counsel for the accused pleaded that the complainant appointed Gunjan Patil as his attorney to prove the contents of the complaint and the documents and examined him at the pre-summoning stage. However, the said attorney neither had the personal knowledge of the Page no. 2 of 12 (Judgment) Varinder Kalra Vs. Amit Kumar U/s 374 (3) CrPC CA No.14/19 case nor was the witness to the transaction. Hence, the said attorney was not the competent person to depose in the present case. Further, the complainant in his examination deposed that he had not read over the contents of his affidavit and was not aware what was written there. As such, the complainant has failed to prove the complaint before the trial court.
8. Perusal of the trial court record reveals that the complainant filed the present com- plaint under his signature. He also filed his affidavit in evidence dated 19.12.2007 in support of the said complaint. Thereafter, the complainant filed one power of attorney dated 05.03.2008 in favour of Gunjan Patil and his affidavit in evidence dated 05.03.2008 before the trial court. Vide order dated 12.06.2008, the trial court after considering the material available on record including the affidavit in evidence filed on record, issued the summons against the accused. As per record, on 15.01.2015, the complainant tendered his affidavit in evidence as Ex.CW-1/A and was cross examined by counsel for the accused.
9. In view of the foregoing discussions, it can be held that though the complainant filed the affidavit of Gunjan Patil along with the General Power of Attorney, however, at no point of time, Gunjan Patil had come in the witness box. In fact, the complainant examined him- self before the trial court. Hence, it can be held that at no point of time, the affidavit of Gunjan Patil had not been considered by the trial court. Therefore, the pleas raised by coun- sel for the accused to this effect are contrary to the judicial record.
10. As held above, the complainant filed his affidavit in evidence dated 19.12.2007 and his testimony was recorded on 15.01.2015. Hence, once the complainant deposed on 15.01.2015 that he had not read over the contents of the affidavit and was not aware what was written therein, he intended to say that before he came in the witness box on 15.01.2015, he had not gone through the contents of his affidavit. Further, in cross examina- tion of the complainant, no suggestion was given to him that the verification clause of his said affidavit was incorrect. Hence, it can be held that once, the complainant filed the affi- davit dated 19.12.2007, he had gone through the contents of the same and deposed the facts as per his knowledge. As such, there is no substance in the pleas raised by the counsel for the accused to this effect.
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11. Counsel for the accused pleaded that the accused was not served with the legal notice dated 02.11.2007 Ex.PW-1/3.
12. In the complaint, the complainant mentioned the address of the accused as 4/51-A, Moti Nagar, near Fun Republic Cinema, New Delhi. The same address is also mentioned in the legal notice dated 02.11.2007 Ex.PW-1/3 addressed to the accused and the postal receipt Ex.PW-1/4 filed in support thereof. As per record, AD had not been received back. The accused was served with summon of the complaint at the same address. Accused in his cross examination admitted that the said address was his residential address where he used to stay in the year 2007 i.e. the year in which the said legal notice was sent to the accused. Same address is mentioned in the memo of parties filed by the accused along with his appeal. Therefore, it can be held that the legal notice Ex. PW1/3 was sent at the correct address of the accused through registered cover /AD card and AD card had not been received back. Hence, in view of section 27 of General Clauses Act, it is presumed that the notice dated 02.11.2007 Ex.PW-1/3 was duly served upon the accused. As such, there is no substance in the plea raised by the counsel for the accused to this effect.
13. Counsel for the appellant pleaded that the complainant has not disclosed the date when he had given the loan to the accused. The complainant has failed to produce any document to substantiate the loan. The complainant has also not disclosed the source of money and has given the contradictory statement to this effect. As such, the complainant has failed to prove that the cheque was given by the accused towards discharge of his debt and liability. Hence, no presumption u/s 118 and 139 of NI Act arises against the accused.
14. Now the question arises whether the said cheque was issued by the accused towards discharge of his debt and liability.
15. As evident from the record, the complainant proved the following documents before the trial court:
(i) Original cheque no. 151198 dated 18.09.2007 for Rs. 4,25,000/- Ex.PW1/1.
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(ii) Original Returning Memo dated 05.10.2007 Ex.PW1/2.
(iii) Legal notice dated 02.11.2007 Ex.PW1/3.
(iv) Original postal receipt Ex.PW1/4.
16. Before the trial court, the accused examined himself as DW-1 and proved the follow- ing documents:
(i) Police complaint dated 13.07.2007 Ex.DW1/1.
(ii) Copy of publication Ex.DW1/2.
17. The accused in his statement u/s 313 CrPC admitted that the said cheque borne his signature. He also admitted that on presentation, the said cheque was dishonoured with the remark "Fund Insufficient" vide the cheque returning memo dated 03.10.2007 Ex.PW1/2. The trial court specifically stated that the accused had admitted his signature on the subject cheque and relied upon the judgment of the Supreme Court passed in "Rangoppa Vs. Mohan" reported in AIR 2010 SC 1898, to hold that initial presumption contemplated u/s 139 NI Act has to be raised in favour of the complainant.
18. The complainant in his cross examination specifically deposed that in August 2007, he gave the loan to the accused for one month and no rate of interest was settled between them. In his cross examination, no suggestion to the contrary was given by counsel for the accused. In view thereof, it can be held that mere non mentioning of the specific date of that month when the loan was granted by him is not fatal to the case of the complainant.
19. Perusal of the record reveals that during the trial, the matter was referred to the Delhi Mediation Center, Tis Hazari Courts, Delhi where both the sides arrived at a settlement dated 03.08.2015. The said settlement is the part of the trial court record and both sides have not disputed its existence. Perusal of the said settlement reveals that against the total sum of Rs.4,25,000/-, the accused agreed to pay Rs.2,50,000/- to the complainant via two cheques i.e. one cheque dated 25.08.2015 for Rs.1,50,000/- and another cheque dated 10.09.2015 for Rs.1,00,000/- and the complainant accepted the same. However, the cheque of Rs.1,50,000/- issued by the accused was dishonored. The accused in his cross Page no. 5 of 12 (Judgment) Varinder Kalra Vs. Amit Kumar U/s 374 (3) CrPC CA No.14/19 examination deposed that he entered the said settlement under pressure as he was threatened by the complainant that he would ask his employer to throw him out of the job and he scared. As revealed from the record, the accused was the government employee and was employed in the defence services. Being so, it cannot be believed that he entered into the mediation settlement under the pressure of the complainant. Further, as per the trial court record, both the parties appeared before the trial court after the said mediation settlement and the accused had not complained to the trial court that he was forced by the complainant to enter into the settlement. Rather, it shows that on several occasions, the accused had sought time from the trial court to comply with the terms of the mediation settlement. Hence, it can be held that the plea raised by the accused that he entered into the said settlement under pressure of the complainant is misconceived and is an afterthought.
20. Counsel for the accused also pleaded that the complainant has not shown the loan amount in his Income Tax Return (ITR) and the payment of more than Rs. 20,000/- in cash was barred u/s 269 SS of Income Tax Act.
21. With respect to contention of the counsel for the accused that the complainant has not shown the loan advanced in his ITR, the Delhi High Court in the judgment titled as "Lekh Raj Sharma v. Yashpal Sharma, passed in Crl. L.P. 567/2014, held as under:
"21. The finding that, as the amount of loan disbursed to the respon- dent was not shown in the balance sheet and ITR, the appellant could not be said to have proved its case beyond reasonable doubt, is also erroneous. In this regard, reference may be placed on the decisions of the Bombay High Court in:
i) Deelip Apte vs. Nilesh P. Salgaonkar & Anr., 2006 (6) BomCR 653, wherein the Court observed: "The learned J.M.F.C. has also held against the complainant the fact that the complainant had not shown the amount Page no. 6 of 12 (Judgment) Varinder Kalra Vs. Amit Kumar U/s 374 (3) CrPC CA No.14/19 advanced by him in his income tax returns. I do not think that every person who gives friendly loans does in all cases show such loans in their income tax returns more so if they are payable on demand after short time. The learned acquitting J.M.F.C. entirely lost sight of the several presumptions which the law has enacted in favour of the complainant." (Emphasis Sup- plied)
ii) Mr. Krishna P. Morajkar vs. Mr. Joe Ferrao, 2013 CRIJ (NOC) 572 Bombay (Decided on 19.07.2013), wherein the Court observed: "The un-
derlined observations do not disclose as to where can one find a prohibi- tion on recovering amounts not disclosed in income tax returns. With ut- most humility, I have to state that I have not come across any provision of Income Tax Act, which makes an amount not shown in the income tax re- turns unrecoverable. The entire scheme of the Income Tax Act is for ensur- ing that all amounts are accounted for. If some amounts are not accounted for, the person would be visited with the penalty or at times even prosecu- tion under the Income Tax Act, but it does not mean that the borrower can refuse to pay the amount which he has borrowed simply, because there is some infraction of the provisions of the Income Tax Act. Infraction of provi- sions of Income Tax Act would be a matter between the revenue and the de- faulter and advantage thereof cannot be taken by the borrower. In my hum- ble view, to say that an amount not disclosed in the income tax returns be- comes irrecoverable would itself defeat the provisions of Section 138 of the Negotiable Instruments Act..........".
"22. Similarly, in the present case, the loan given by the petitioner was a friendly loan for the business of the accused-respondent, in the back- ground that they had known each other for about 40 years. It was payable in a short period of time. Thus, I do not find any merit in the submission of the respondent that since the name of the accused-respondent has not been shown in the balance sheet, or the amount had not been disclosed in the ITR, it stands established that the loan was not disbursed by the appellant."
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22. Further, the trial court while dealing with the said plea, held as under:
17. ...................... It was also argued that the complainant has not disclosed the loan given to the accused in his ITRs and thus, all these facts create doubt on his case. I do not find merits in the submission of Ld. Counsel for the accused. Failure to disclose the loan in the ITRs and non filing of documents are not fatal to the case of the complainant. For this, reliance be placed on one judgment Sanjay Arora vs. Monika Singh [2017 SCC Online Del 8897]. In that case, it was held that "para 24, mere ad-
mission of the complainant that he was earning only Rs.12,000/- per month from small business or his failure to file income tax returns, or his omission to produce the bank pass book or to examine Chhotu as a witness in cor- roboration, are inconsequential. In order to rebut the statutory presump- tion, it was the burden of the respondent to prove the facts she had pleaded in answer to the notice under Section 251 CrPC". Thus, there is no force in the submission of counsel for the accused."
23. In view of the foregoing judgment and discussions, it can be held that mere non dis- closure of the loan amount in the ITR is not fatal to the case of the complainant. As such, there is no substance in the pleas raised by counsel for the accused to this effect.
24. Counsel for the accused also pleaded that the blank cheque book duly signed by him was stolen and the said cheque was the part of that cheque book. However, the complainant had misused the said cheque.
25. While dealing with the abovementioned pleas raised by counsel for the accused, the trial court held:
"16. The accused has taken the defence that the complainant is a stranger to him and he has not borrowed any amount from him. He also al-
Page no. 8 of 12 (Judgment) Varinder Kalra Vs. Amit Kumar U/s 374 (3) CrPC CA No.14/19 leged that his cheque book comprising cheque in question was misplaced by him and he lodged a police complaint Ex.DW-1/1(OSR) in PS Rajendr Nagar regarding the same. In the absence of cogent evidence, the bare statement of the accused stared that the cheque in question was misplaced by him cannot be accepted as gospel truth. The accused has placed on record copy of his complaint Ex.DW-1/1 regarding his lost cheque books. A bare perusal Ex.DW-1/1 would show that the accused has not mentioned the number of lost cheques in the complaint. He has also not stated any- where number of cheque books issued by the bank at that time. The ac- cused has not mentioned number of cheque leaves which were there in the cheque books when they were lost. It is pertinent to note that the reason for dishonour is funds insufficient and thus, it shows that there is no intimation to the bank to stop the payment of cheque in question. The accused has not given any explanation as to why he has not issued stop payment instruc- tions to the bank. He has also not explained as to why he remained silent when the complainant has misused his lost cheque. The accused is govern- ment officer and he is not expected to remain silent that to when a com- plaint has been filed against him on the basis of alleged stolen cheque. The accused has not examined any of his family members to prove his visit to Punjab National Bank, Rajender Nagar for availing loan for settlement of dispute. The accused has also not pursued his complaint lodged in PS Ra- jender Nagar after the filing of present case. The complaint Ex.DW-1/1 is a vague complaint and thus, the defence of the accused that his cheque in question was lost does not inspire confidence of the court. Accused has cross examined the complainant but nothing favorable has emerged in favour of the accused. The evidence led by the complainant is totally unre- butted. No effective defence has been put forth by the accused."
26. The complainant (CW-1) in his cross examination denied a suggestion that he had misused the subject cheque on the pretext of Gunjan Patil. According to the said suggestion, the said cheque was in the possession of the complainant (CW-1) and the accused knew that Page no. 9 of 12 (Judgment) Varinder Kalra Vs. Amit Kumar U/s 374 (3) CrPC CA No.14/19 fact but his grievance was that he misused the said cheque at the instance of Gunjan Patil. In his cross examination, no suggestion was given that in fact, his said cheque along with other cheques was stolen and the complainant illegally possessed the said cheque and there- after, misused the same.
27. The accused in his statement u/s 313 CrPC for the first time stated that there were some family disputes between him and his sisters and when he was returning from the bank, he noticed that his cheque book containing his blank signed cheques including the said cheque which was kept in the scooter was misplaced. Firstly, no such plea was raised by the accused in the notice u/s 251 CrPC. Secondly, no such suggestion was given to CW-1 in his cross examination also.
28. In support of the above mentioned plea, the accused relied upon the police complaint Ex.DW-1/1 and publication dated 14.07.2008 Ex.DW-1/2. Perusal of the police complaint Ex.DW-1/1 reveals that on 13.04.2007, the accused lodged a complaint with the police regarding loss of three blank cheque books with his signatures and some stamp papers. However, no detail of the same has been mentioned therein. The subject complaint firstly came up for hearing on 19.12.2017. Perusal of the publication in the newspaper "Veer Arjun" dated 14.07.2008 Ex.DW-1/2 reveals that the accused got published one notice regarding theft of some signed blank cheque books. The question arises as to why the accused got published the said notice after a period of 470 days.
29. Now the question arises as to when the accused came to know about loss of the cheque books. In reply to the question no.6 of his statement u/s 313 CrPC, the accused stated that once he returned from the bank, he noticed that the blank signed cheque books which included the said cheque, which were kept in the scooter, was misplaced. According to the accused, he lodged the complaint Ex.DW-1/1 on 13.04.2007. It implies that on 13.04.2007, the accused was aware that his signed blank cheque books had been stolen. However, to this effect the accused deposed that after sometime, he noticed that his blank papers and the cheques books had been misplaced from his scooter. This is contrary to this statement u/s 313 CrPC. Further, in his cross examination, the accused deposed that he apprehended that his cheque books might have been taken by his brother or sister as there Page no. 10 of 12 (Judgment) Varinder Kalra Vs. Amit Kumar U/s 374 (3) CrPC CA No.14/19 was some disputes between them. Later on, he came to know the cheque books were not taken by either of them and thereafter, he lodged the complaint on 13.04.2007. It implies that the cheque books were not stolen on 13.04.2007. Further, if the accused had some disputes with his brother and sister, then it cannot be believed that he remained silent once he noticed that his cheque book had been stolen on the apprehension that the same were taken by his brother and sister. In that scenario, the accused instead to remain silent would have immediately initiated the legal action against his brother and sister immediately. The accused has also failed to explain why he waited till 14.07.2008 to get issued the publication.
30. The accused in his testimony deposed that in the year 2012, he came to know about misuse of the said cheque. As per record, he had not given any instruction to his bank to stop payment against the said cheque and the cheques which were the part of the alleged stolen cheque books. The accused has failed to justify the delay of almost five years to this effect. Further, as per record, the accused, a graduate, was the government employee. As revealed during the course of arguments, he was employed in defence services. Hence, it cannot be believed that being so, he would have left the signed blank cheque books i.e. three in number, in his scooter and also would have remained silent to this effect for a substantial period and had not even issued the instruction to his bank to stop payment against the subject cheques.
31. Counsel for the accused pleaded that there exists contradiction in the statement of the complainant i.e. (i) at one place, he stated that the accused was his childhood friend while at another place, he stated that since 2005-2006, he knew him; and (ii) at one place, he stated that he arranged the funds from his relatives and from his own savings while at another place, he stated that he arranged the loan amount from the sale proceeds of a property sold by him. Therefore, the testimony of the complainant is not reliable in nature.
32. While dealing with the said plea, the trial court held that those contractions were not the material contradictions to discard the testimony of the complainant who, otherwise, proved his case. I do not find any infirmity in the findings given by the trial court. Even the accused had failed to point out any infirmity in the said findings.
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33. In view of the foregoing discussions, it can be held that the complainant has proved the essential ingredients of section 138 NI Act. Hence, the presumption lies in favour of the complainant that the accused has issued the said cheque in favour of the complainant to dis- charge his debt and liability. On the other hand, the accused has failed to rebut the said pre- sumption. Hence, it can be held that the accused has issued the cheque Ex.PW1/1 in favour of the complainant in discharge of his debt and liability.
34. In view of the foregoing discussions, it can be held that the complainant/respondent proved the essential ingredients of section 138 NI Act beyond reasonable doubt against the accused. As such, I do not find any infirmity in the dated 21.12.2018 and order on sentence dated 24.12.2018 passed by the trial court. Therefore, the appeal stands dismissed. TCR be sent back to the trial court with copy of this judgment.
35. Appeal file be consigned to record room. Digitally signed by PANKAJ PANKAJ GUPTA Date:
GUPTA 2019.06.04
12:57:27
Announced in the open court +0530
on this 03th day of June, 2019. (Pankaj Gupta)
ASJ(FTC): N-W: Rohini:Delhi
03.06.2019
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