IN THE COURT OF Ms. REKHA RANI DISTRICT & SESSIONS JUDGE (WEST) : DELHI Criminal Appeal No. 43/2016 Unique ID No. 02401R-028515-2016 AND Criminal Appeal No. 44/2016 Unique ID No. 02401R-028516-2016 [ENTITY] S/o Sh. Badri Prasad R/o 5A/115, Block 5A, Gali No.8, WEA, Sat Nagar, Karol Bagh, Delhi. . . . . Appellant versus [ENTITY] S/o Sh. J.R. Verma R/o 52/34, Gali No.25, Nai Basti Anand Parbat, Delhi. . . . . Respondent Date of institution : 21.04.2016 Judgment Reserved on : 02.06.2016 Date of pronouncement : 07.06.2016 JUDGMENT
1. Vide this common judgment, I shall dispose off the aforesaid two appeals bearing [CASE NUMBER] and [CASE NUMBER] both instituted on 21.04.2016 by the appellant assailing judgments dated 29.02.2016 [PRECEDENT] [ENTITY] vs. [ENTITY] Page1of14 and impugned orders on sentence dated 22.03.2016 passed by Ms. [ENTITY], Ld. MM ([ACT]-02), Central, Delhi in Complaint Cases bearing CC No.1155/A/11 (qua Cheque bearing No.040298 for Rs. 1,60,000/- dated 27.06.2011) and CC No.363/A/12 (qua Cheque bearing No.081848 for Rs. 80,000/- dated 19.01.2012) respectively under [SECTION] of the [ACT] (in short 'the Act').
2. The appellant assailed the impugned judgments and orders on sentence interalia pleading in the aforesaid appeals that :-
impugned judgments and orders on sentence are based on evidence which do not prove guilt of the appellant; neither in his complaints nor in his affidavits, the complainant disclosed the exact date, month or year of advancement of loan amounts to the appellant;
Ld. Trial Court failed to appreciate that if as per the version of the complainant, the appellant failed to repay the loan amount advanced previously in the year 2005, how could the complainant be believed to have advanced further loan to the appellant/ defaulter in the year 2011; Ld. Trial Court failed to appreciate that the cheques in question were undated, blank and were handed over to the complainant only as security to ensure re-payment of the loan; the complainant has mischievously filled-in date and amount on the cheques and filed the instant two complaint cases [PRECEDENT] [ENTITY] vs. [ENTITY] Page2of14 against the appellant to extort money from him illegally which was not due from the appellant;
Ld. Trial Court failed to appreciate that complainant himself has admitted that he has received Rs.20,000/- towards re- payment of the loans and that he did not issue any receipt of acknowledgment which fact lends support to the case of the appellant that he had infact repaid the entire loan amounts to the complainant and he did not issue any receipt of acknowledgment thereof and the loan was repaid in the presence of wife of the appellant and one - [ENTITY]; Ld. Trial Court wrongly trusted the statement of the complainant that he had sent legal notices of demand to the appellant. Appellant never received any legal notice allegedly sent by the complainant to him. In his cross-examination, the appellant had clearly stated that his wife had intimated him that a notice had been received from the Court. There is no admission on the part of the appellant qua receipt of any notice from the complainant;
Ld. Trial Court erred by ignoring material discrepancies in the testimony of the complainant;
Ld. Trial Court further failed to appreciate that the case of the complainant is inherently improbable as no prudent person who advanced loan in the year 2004 would wait for years and not file any suit for recovery or initiate any criminal action with the police against the appellant for recovery of his money.
[PRECEDENT] [ENTITY] vs. [ENTITY] Page3of14 The instant complaint cases were filed in the year 2011 and 2012 respectively with a view to falsely implicate the appellant.
3. Notices of the appeals were issued to the complainant/ respondent herein who has put in appearance and contested the instant appeals.
4. TCRs of both the aforesaid Complaint Cases were requisitioned which have been received and perused. I have heard Sh. [ENTITY], Ld. counsel for the appellant and Sh. [ENTITY], Ld. counsel for the respondent and have carefully perused the entire record.
5. The appellant through his arguments has prayed for setting aside of the impugned judgments and orders on sentence.
6. Per contra, Ld. counsel for the complainant/ respondent submitted that Ld. Trial Court has passed a well reasoned judgments and orders on sentence and the same need no interference.
7. On appreciation of pre-summoning evidence recorded under [SECTION] [ACT], the appellant was summoned and he was served with notice under [SECTION] [ACT] on 03.10.2012 in both the complaint cases to which he pleaded not guilty and claimed trial.
[PRECEDENT] [ENTITY] vs. [ENTITY] Page4of14 The response of the appellant to the notice u/[SECTION] [ACT] and the statement of the appellant recorded u/[SECTION] [ACT] are identical in both the complaint cases as the defence taken by him is same in both the complaint cases.
The plea of defence taken by the appellant while responding to the notice u/[SECTION] [ACT] served in both the complaint cases is reproduced as under :-
"At the time of taking loan of Rs.50,000/-, I had given two blank signed cheque as security purpose and complainant after taking the said cheque gave assurance to the accused that after clearance of the said amount the cheques will be returned. I have returned the said loan amount four years back. But, the complainant misused the said blank cheques and filed the false complaint. Neither complainant has given any legal notice nor given any information for filing of the present complaint. Hence, the complainantis also liable to be prosecuted. The loan amount was returned to the complainant in presence of my wife and [ENTITY] as witness and at the time of taking of loan amount an affidavit of Rs.50,000/- was also executed by the complainant which is also lying in possession of the complainant."
8. Further, the defence taken by the appellant in his statement recorded u/[SECTION] [ACT] on 06.08.2014 in both the complaint cases is as under :-
"I have been falsely implicated in the present matter by the complainant as I have already returned the loan amount and cheques had been given for security purposes and having [PRECEDENT] [ENTITY] vs. [ENTITY] Page5of14 my signatures on blank cheques. These cheques were handed over at the time of taking the said loan amount in the year 2004 and the complainant also executed on stamp paper in his writing the payment of Rs.50,000/- in the year 2004 which had to be returned after three months. I had also taken loan of Rs.30,000/- in the year 2011 from the complainant and the same had also been returned with interest to the complainant, who usually took the interest @ 10% per month. The transaction of loan of Rs.30,000/- was reduced into writing at the time of taking of same from the complainant. The written document is also on record Mark 'A' to 'D'. I had given three blank signed cheques at the time of taking the loan of Rs.50,000/- in the year 2004. I have never received any notice from the complainant in the present complaint. I have received court notice in the present matter from the Court. The said loan amount was taken in the presence of my wife and another person namely, Mr. [ENTITY]. The said loan amount was returned from time to time in the presence of these said witnesses."
9. The aforesaid admission of the appellant indicated his clear, unequivocal acknowledgment that he had taken a loan of Rs.50,000/- from the complainant in the year 2004 which had to be returned within three months.
In his examination as DW1 conducted on 20.02.2015 he stated as under :-
"I have taken a sum of Rs.50,000/- in the year 2004. I have returned the same in two or three installments in two or three months."
[PRECEDENT] [ENTITY] vs. [ENTITY] Page6of14 However, in his response to notice u/[SECTION] [ACT] recorded on 03.10.2012, he stated that he returned the said loan amount about four years ago which means he had allegedly repaid the loan in the year 2008 which is contrary to his plea taken in his examination recorded on 20.02.2015 as per which he had allegedly returned the loan amount in the year 2004 within 2-3 months of taking the loan.
10. The plea of the appellant that it is improbable that a person would continue to advance loan amounts on different occasions despite having failed to recover earlier loan, was rightly discarded by the Ld. Trial Court by observing in para 13 in both the judgments as under :-
"There is nothing unusual between acquaintances to lend and borrow short term and long term loans and to give repeated time for repayment when the borrower gives assurances that he will repay in near future. Hence, the arguments of the Ld. Counsel of the accused that the complainant kept extending loan to the accused despite his being a defaulter in repayment has no force and cannot be accepted. Legally speaking, parties are at full liberty to decide on their terms of transactions, even with respect to a friendly loan, and there is nothing unusual about a person advancing loan to another without any substantial repayment forthcoming, as long as cheques are being issued by the borrower as a mark of assurances of repayment."
[PRECEDENT] [ENTITY] vs. [ENTITY] Page7of14
11. The case of the appellant is that he had paid back the loan amount within 2-3 months of taking the same. It is strange that having allegedly repaid the loan amount, he did not insist on return of security cheques. Strangely, the appellant kept silent for years and did not ask for return of his cheques which were allegedly given to the complainant as security. In this regard, Ld. Trial Court has rightly observed in para 14 of the judgments which is reproduced as under :-
"What rather does not seem believable is that a person who alleges to have returned a loan taken in the year 2004 will not ask for return of security cheques even after years have passed since repayment. Going by the version of the accused, he alleges to have taken a loan of only Rs.50,000/- from the complainant way back in year 2004, which he alleges to have returned within 2-3 months. A prudent, reasonable person who is conscious of protecting his interest, will insist on return of any security cheques and will take prompt steps and legal recourse against any misuse of such cheques. Evidently, nothing of this sort had been done by the accused. The accused himself says certain stamp-paper were got executed in the year 2004 at the time of taking loan. If so, then the accused should have, as a matter of precaution, taken steps a long while ago against any misuse of cheques and documents."
12. The case of the appellant that he had repaid the loan amount was rightly disbelieved by the Ld. Trial Court in view of the fact that none of the witnesses in whose presence the said loan amount was [PRECEDENT] [ENTITY] vs. [ENTITY] Page8of14 repaid was examined. The appellant did not produce either his wife or [ENTITY] in whose presence he had allegedly repaid the loan to the complainant.
13. The appellant in his response to notice u/[SECTION] [ACT] and in his examination u/[SECTION] [ACT] admitted his signatures on the cheques in question. Ld. Trial Court has rightly referred to the judgment of [PRECEDENT] wherein it was observed 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] of the [ACT] has to be raised by the Court in favour of the respondent."
Further defence of the appellant that he did not fill-in the particulars of the cheques in question including the date and amount was rightly discarded by Ld. Trial Court by placing reliance on the judgment of Hon'ble High Court in case [PRECEDENT] and [CASE NUMBER], wherein it was held that:
"where the accused facing the trial for the offence u/[SECTION] is disputing the signature on the cheque itself, then this is a permissible defence within the scope of [SECTION] of [ACT] but where the signature are admitted, although the cheques are issued in blank there is an implied authority given to the payee to fill up the instrument. [SECTION] of [ACT] also say so."
[PRECEDENT] [ENTITY] vs. [ENTITY] Page9of14 Ld. Trial Court also relied upon the judgment of Hon'ble High Court of Delhi in [PRECEDENT]. Crl. [CASE NUMBER] decided on 05.05.2011 wherein it was observed that any person who issues blank signed cheque should understand the consequences of doing so.
Reliance in this regard may also be placed on the Judgment of Hon'ble High Court in [PRECEDENT] wherein it was observed that there is no law that requires that particulars of the entire cheque should be filled in by the drawer himself and The appellant himself admitted that he issued the cheques in question and by handing over cheques in question to the complainant, he gave him express and implied authority to fill in his name as payee and the amount payable.
14. Appellant has further contended that he did not receive the notice of demand from the complainant. In this regard, Ld. Trial Court rightly observed in para 18 of the impugned judgments as under :-
"The complainant has placed on record the copy of the legal notice Ex.CW1/3 alongwith courier receipt Ex.CW1/4. It is a settled position of law that a notice properly addressed, prepaid and posted by registered post shall be deemed to be served upon the respondent unless the contrary is proved. In such scenario, the decision of Hon'ble Supreme Court in [PRECEDENT] [ENTITY] vs. [ENTITY] Page10of14 SC 2007 (6) SCC 555 would become applicable wherein Hon'ble Apex Court has held that even if the accused did not receive the legal demand notice he can pay the cheque amount within fifteen days of the service of summons from the court but if he fails, he cannot contend that he has not received the legal demand notice. It is evident that the drawer has failed to make the payment of cheque amount in question within 15 days of the receipt of aforesaid notice, thus, the present complaint u/[SECTION] [ACT] has been initiated against the accused. Moreover, the presumption of deemed service of legal demand notice becomes operative as there is mere denial without any proof shown by the accused, and also because the address submitted by the accused in his bail-bonds is the same in which the legal demand notice had been sent and which had been provided by the complainant in the judicial record."
15. While arguing qua quantum of sentence, it was submitted on behalf of the appellant that he is a poor, young, unmarried person having clean past and the impugned orders on sentence are quite harsh and the same deserve to be set aside.
16. At the outset, I may refer to the judgment in [PRECEDENT] decided on 28.07.2010 wherein our own High Court observed that :-
"The procedure being followed presently by learned MMs under [SECTION] of [ACT] does not commensurate with the summary trial provisions of [ACT] and provisions of [ACT] [ENTITY] vs. [ENTITY] Page11of14 Act and that is the reason that decisions of cases under [SECTION] of [ACT] is taking unnecessary long time and the complaints remain pending for years."
It is mandate under [SECTION] of the Act that every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint.
17. The complaint cases were filed way back in the year 2011-2012. In [PRECEDENT], directions were issued to all the criminal Courts in the country dealing with cases under [SECTION] of the Act to follow summary procedure as per provisions of [SECTION] of [ACT] for expeditious disposal of such cases.
18. Hon'ble Apex Court in case of [PRECEDENT], decided on 27.11.2012 qua [SECTION] of [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 ".
The Hon'ble Apex Court in case titled [PRECEDENT] observed that "while interpreting a [PRECEDENT] [ENTITY] vs. [ENTITY] Page12of14 penal provision u/[SECTION] of [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. Admittedly, loan was taken way back in the year 2004 (as per his statement recorded as DW1 on 20.02.2015). Instead of making efforts to pay back the same, he 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 re-payment of the loan. He has not shown any bonafide intention to liquidate the loan even after filing of the complaint case. The conduct of the appellant is, therefore, not in consonance with the aim and objective of the Act as discussed above in M/s [PRECEDENT]. (supra) and [PRECEDENT] (supra).
20. 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 defence put up by the appellant.
21. In view of the foregoing reasons, both appeals are dismissed. The conviction vide the impugned judgments and orders on sentence are, therefore, upheld. Appellant be taken into custody and sent to jail to serve the sentence imposed by Ld. Trial Court vide impugned orders on sentence dated 22.03.2016 in both the Complaint Cases. A [PRECEDENT] [ENTITY] vs. [ENTITY] Page13of14 copy of this judgment be supplied to the appellant/ convict free of cost.
Copy of this judgment be placed in both the appeal files. TCRs be sent back forthwith along with copy of the judgment. Appeal files be consigned to Record Room.
Announced in Open Court ( [ENTITY] ) today this the 7th day of District & Sessions Judge / (West) June, 2016 Tis Hazari Courts, Delhi [PRECEDENT] [ENTITY] vs. [ENTITY] Page14of14