Delhi District Court
Promila Gulia vs State Of Delhi on 25 February, 2016
-: 1 :-
IN THE COURT OF Ms. REKHA RANI
DISTRICT & SESSIONS JUDGE (WEST) : DELHI
CA No. 73/2015
Unique ID No. 02401R0478462015
Promila Gulia
W/o Sh. Jitender Gulia
R/o H.No. 9B, Channamal Park,
East Punjabi Bagh,
New Delhi-26 . . . . Appellant
Versus
1. State of Delhi
Through Ld. APP
2. Mahavir Lamba
S/o Mauji Ram
R/o H.No. 234, Jain Mohalla,
Shahabad, Mohammadpur,
Delhi-61 ..... Respondent
Date of filing Appeal : 31.03.2015
Date of Reserving Order : 15.01.2016
Date of judgment : 25.02.2016
AND
CA No. 77/2015
Unique case ID No. 02401R0478492015
Mahavir Lamba
S/o Shri Mauji Ram
R/o H.No. 234, Jain Mohalla,
CA Nos. 73/15 & 77/15 Page 1 of 13
-: 2 :-
Shahbad Mohammadpur
New Delhi-110061 . . . . .Appellant
versus
1. Mrs. Promila Gulia
W/o. Shri Jitender Gulia
R/o H.No. 9B, Channamal Park,
East Punjabi Bagh
New Delhi-110026
2. The State of GNCT of Delhi . . . . .Respondents
Date of filing Appeal : 19.03.2015
Date of Reserving Order : 15.01.2016
Date of judgment : 25.02.2016
JUDGMENT
1. Vide this common judgment, I shall dispose off the aforesaid two appeals i.e. CA No.73/15 & CA No.77/15 both preferred against the Judgment dated 24.12.2014 and order on sentence dated 19.02.2015, passed in complaint case bearing CC No. 5773/14 filed by Mrs. Promila Gulia (in short the complainant) and Mahavir Lamba (in short the respondent) respectively vide which respondent was convicted under Section 138 of Negotiable Instruments Act (in short the Act) and sentenced to undergo simple imprisonment for a period of one year and was sentenced to pay compensation of Rs.5,55,000/- to the complainant and in default of payment of compensation he was sentenced to undergo simple imprisonment for a period of three months.
CA Nos. 73/15 & 77/15 Page 2 of 13 -: 3 :- APPEAL BEARING CA NO. 73/152. Appeal bearing CA No.73/15 is preferred by the complainant assailing the order on sentence dated 19.02.2015 on the ground that lesser punishment has been awarded to the respondent, which is sought to be enhanced to simple imprisonment of two years instead of one year and grant of compensation to the tune of Rs.11,10,000/- instead of Rs.5,55,000/-.
APPEAL BEARING NO. 77/153. Appeal bearing CA No. 77/15 is preferred by the respondent for setting aside of impugned Judgment dated 24.12.2014 and impugned order on sentence dated 19.02.2015 interalia on the following grounds:
• that he had taken loan of Rs.5,55,000/- payable with interest at the rate of 2% per month in the month of October-2010 from Sanjeev Kumar. Sanjeev Kumar told him that he being a govt. employee could not execute necessary loan documents and instructed respondent to make payment to the complainant;
• that respondent paid Rs. 6,30,000/- to the complainant against loan amount and interest leaving a balance of only Rs.80,000/-;
• that during course of payment, the complainant requested the respondent that security cheques given by him are CA Nos. 73/15 & 77/15 Page 3 of 13 -: 4 :- misplaced and requested him to issue fresh cheque as security, on which respondent issued fresh cheque of Rs.5,55,000/- to brother of the complainant as security cheque;
• that the respondent had never taken any loan from the complainant nor he gave any cheque to her nor he owed any legally enforceable debt to her;
• that the complainant in her cross-examination stated that she is an income tax payee. However, she did not file any income tax return for the period of loan transaction, which if filed would have proved that she had filed instant criminal complaint case against the respondent falsely and maliciously.
• that complainant has not placed any document on record as to how she arranged huge loan amount to be able to advance the same to respondent;
• that Ld. trial Court has failed to appreciate that no document was executed in writing by the respondent regarding alleged loan transaction;
• that the complainant has not mentioned any date, month or year when the loan in question was advanced by her to the respondent;
• that the respondent in his reply to legal notice, in response to notice under Section 251 Cr.P.C. and also in his examination under Section 313 Cr.P.C. has been able to rebut and shake CA Nos. 73/15 & 77/15 Page 4 of 13 -: 5 :- the case of the complainant successfully; • that Ld. trial Court failed to appreciate that Sanjeev Kumar brother of the complainant as DW-5 admitted refund of an amount of Rs.1,70,000/-;
• that DW-1 (respondent) and DW-2 Jitender Singh Lamba consistently deposed that on 17.11.2011 and 18.11.2011 the complainant received an amount of Rs.50,000/-each from the respondent and executed receipt for the same; • that Ld. trial Court failed to appreciate that any prudent person while receiving cheque would check at least the name of payee. Since admittedly cheque marked CW-1/1 to CW-1/3 were returned back by the Bank with the remarks "title differ" it is sufficient proof that said cheques were not given by the respondent to the complainant but they were given to her brother;
4. Trial Court record of CC No. 5773/14 titled Mrs. Promila Gulia Vs. Mahavir Lamba was requisitioned, received and perused.
5. I have heard Shri R.K. Lamba, Ld. counsel for the respondent and Shri Rohit Yadav, Ld. Counsel for complainant.
6. Case of the complainant in brief is that she advanced a friendly loan of Rs.5,50,000/- to the respondent on 01.10.2010 and the respondent did not keep his promise for returning the said loan and after repeated reminders, the respondent issued three CA Nos. 73/15 & 77/15 Page 5 of 13 -: 6 :- post dated cheques bearing Nos. 412443, 412447 and 806363 dated 30.11.2011, 12.12.2011 and 12.12.2011l respectively amounting to Rs.30,000/-, Rs. 2,25,000/- and Rs.3,00,000/- respectively Mark CW-1/1 to CW-1/3, which were dishonored for the reason "title differ" and therefore respondent issued another cheque No. 291914 dated 25.12.2011 for Rs.5,50,000/- Ex.CW-1/4 in discharge of his liability, which on presentation for encashment was returned with the remarks "funds insufficient".
7. The respondent has not denied that cheque in question Ex.CW-1/4 was issued issued by him. In response to notice under Section 251 Cr.P.C. on 22.01.2013 he stated that cheque in question was given as security cheque to the brother of the complainant from whom he had taken a loan with interest.
8. As the respondent himself admitted his signatures on the cheque in question, 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 Instruments Act has to be raised by the Court in favour of the respondent."CA Nos. 73/15 & 77/15 Page 6 of 13 -: 7 :-
9. The defence of the respondent is that he has repaid entire loan with interest at the rate of 2% per month to the complainant on instructions of her brother Sanjeev Kumar and balance of only Rs.80,000/- is left. In his examination under Section 313 Cr.P.C. he stated as follows:
"...I used to pay the amount to the complainant and she used to issue receipts qua the same. Interest was completely paid by me. Later on complainant raised the rate of interest to 4% p.a. due to which dispute arose between us. I have paid a sum of Rs.6,30,000/- till date to the complainant on various dates. I do not owe liability of Rs.5,55,000/- towards the complainant. I was and I am ready and willing to pay the balance amount of Rs.80,000/- but the complainant is asking for Rs.5,55,000/- which is not due against me. The cheque in question was a security cheque".
10. Ld. counsel for the respondent has relied upon Ex.DW-5/A to contend that Rs.1,70,000/- towards part payment of loan amount was given to Sanjeev Kumar, brother of the complainant. Ex.DW-5/A indicates that Sanjeev Kumar received Rs.1,70,000/- on behalf of Ranbir. Said receipt does not even indicate that Rs.1,70,000/- was paid to Sanjeev Kumar, brother of the complainant qua loan in question. Further it is case of the respondent that Sanjeev Kumar, brother of the complainant, directed him to make entire payment to his sister, the complainant. It is not explained by the respondent that why he made payment CA Nos. 73/15 & 77/15 Page 7 of 13 -: 8 :- of Rs.1,70,000/- to Sanjeev Kumar directly contrary to his instructions. Sanjeev Kumar was examined as DW-5, who though admitted his signatures on Ex.DW-5/A but stated that he collected the said payment on behalf of Ranbir Balhara. The respondent has not explained as to why name of Ranbir Balhara is mentioned in the said receipt, if payment of Rs.1,70,000/- was made as part payment towards transaction in question.
11. It is pertinent to mention here that the complainant CW-1 in her cross-examination denied having received Rs.6,30,000/- from the respondent. She stated that receipts Ex.CW-1/Y (colly) were neither written nor signed by her. There are receipts which are on small pieces of papers in the nature of slips. The respondent has relied upon these receipts to prove that he made payment towards loan transaction to the complainant and it is stated that said receipts bear signatures of the complainant. Said receipts are not credible piece of evidence in view of the fact that they talk about payment of interest, without therein being any reference as to qua which loan said interest was paid. It is also not evident as to by whom said interest amount was paid. (Reference in this regard may be made to receipts dated 03.08.2011, 07.09.2011 10.10.2011, 18.11.2011 and 13.07.2011) It is further evident on perusal of the said receipts that there are lots of overwriting and cuttings.
12. The testimony of Finger Print Expert (DW-4) was rightly disbelieved by the Ld. trial Court in para 19 of the impugned CA Nos. 73/15 & 77/15 Page 8 of 13 -: 9 :- Judgment by observing that there is overwriting in the dates with signatures in some questioned documents and it is not clarified in the report or in his testimony as to with which admitted writing / words the questioned documents have been compared and further in view of the fact that his testimony is not supported with any corroborative evidence.
13. Receipt dated 14.12.2011 for Rs.50,000/- mentions "5/9/09 waley paisey wapis aa gaye". Receipt dated 14.12.2010 for Rs.50,000/- mentions "Savita waaley paise wapis aa gaye". Receipt dated 17.11.2011 mentions "Nangloi waaley 050000 10/1/10 key wapis aa gaye". Receipt dated 28.09.2011 mentions "9-1-2010 key wapis paisey aa gaye". The respondent has not explained as to how these receipts are connected with the loan transaction in question. Said receipts are quite vague.
14. Ld. Counsel for the respondent further submitted that although the complainant is admittedly assessed to income tax, she has not filed any income tax return showing the loan transaction in question. The contention of the appellant/accused that the complainant's failure to file any income tax returns reflecting the advancement of the loan in question to the accused is fatal flaw in the complainant's case can be discarded by placing reliance on the Judgment in 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 CA Nos. 73/15 & 77/15 Page 9 of 13 -: 10 :- defaulter and revenue authorities and it is not a ground in law to deny avenues open to the complainant for recovering the loan amount".
15. Ld. Counsel for the respondent further contended that complainant has not proved her financial status to be able to advance a loan of Rs.5,55,000/- to the respondent and further how she gave an amount exceeding Rs.20,000/- in cash to the respondent. Ld. counsel for the respondent has taken me through the cross-examination of complainant (CW-1) wherein she admitted that she pays income tax and further that she is not aware if she cannot make payment for an amount more than Rs.20,000/- in cash.
16. It is relevant to note here that respondent himself has admitted the loan transaction in question. He has admitted that payee's name, date and amount are filled-in by himself on the cheque in question. In view thereof, there is no need to examine financial status of the complainant.
17. Hon'ble Apex Court in case of M/s Laxmi Dyechem v. State of Gujraj & Ors., Criminal Appeal Nos. 1870-1909 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 ...".CA Nos. 73/15 & 77/15 Page 10 of 13 -: 11 :-
18. 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. In Goa Plast(P) Ltd. Vs. Chico Ursula D'Souza, Hon'ble Supreme Court, while dealing with the objects of the Act, observed as follows:-
"26... The object and the ingredients under the provisions, in particular, Sections 138 and 139 of the Act cannot be ignored. Proper and smooth functioning of all business transactions, particularly, of cheques as instruments, primarily depends upon the integrity and honesty of the parties. In our country, in a large number of commercial transactions, it was noted that the cheques were issued even merely as a device not only to stall but even to defraud the creditors. The sanctity and credibility of issuance of cheques in commercial transactions was eroded to a large extent. Undoubtedly, dishonour of a cheque by the bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious setback. Parliament, in order to restore the credibility of cheques as a trustworthy substitute for cash payment enacted the aforesaid provisions. The remedy available in a civil court is a long drawn matter and unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee."CA Nos. 73/15 & 77/15 Page 11 of 13 -: 12 :-
20. The impugned Judgment has been rendered on the basis of correct appreciation of facts and law and view taken by the Ld. MM cannot be faulted. The respondent has 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 payment towards the cheque. He has not shown any bonafide intention of paying the amount of cheque in question. The conduct of the respondent / accused 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); State of Tamil Nadu v. M.K. Kandaswami (supra); and Goa Plast (P) Ltd. Vs. Chico Ursula D'Souza (supra).
21. 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 that he has repaid the loan amount.
22. In view of the foregoing reasons, the appeal bearing CA No. 77/2015 preferred by the respondent is dismissed. The impugned Judgment dated 24.12.2014 is therefore upheld.
23. Now coming to appeal bearing CA No. 73/2015 vide which the complainant has assailed the order on sentence dated 19.02.2015 on the ground that lesser punishment has been awarded to the respondent.
CA Nos. 73/15 & 77/15 Page 12 of 13 -: 13 :-24. Having prosecuted the case for over more than two years, the complainant has remained deprived of her money. As per Section 138 of the Act, the accused can 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. Keeping in view the facts and circumstances of the case and the aim and objectives of the Act, the appeal bearing CA No.73/2015 filed by the complainant is allowed and order on sentence dated 19.02.2015 is modified and the respondent / accused is sentenced to undergo Simple Imprisonment for a period of one year and is further sentenced to pay compensation amount of Rs.11,10,000/- instead of Rs.5,55,000/- and in default of payment of compensation amount, he is sentenced to undergo simple imprisonment for a period of six months. Appellant is taken into custody to serve the sentence as imposed above.
A copy of this Judgment be given to the appellant. A copy of this Judgment be placed in each file. Trial Court record along-with copy of Judgment be sent back.
File of both the appeals be consigned to Record Room.
Announced in open Court on ( Rekha Rani ) dated 25th day of February, 2016. District & Sessions Judge (West) Tis Hazari Courts/Delhi CA Nos. 73/15 & 77/15 Page 13 of 13