Final Order 12

Order Details: COPY OF JUDGMENT
Pdf Text: Jyoti Dubey Vs. Kanchan Gupta
IN THE COURT OF SH. ALOK SHUKLA, ADDITIONAL
SESSION JUDGE-02, SPECIAL JUDGE (NDPS), EAST
DISTRICT, KARKARDOOMA COURT, DELHI
CNR NO. DLET01-004767-2023
Criminal Appeal No. 47/2023
In the matter of:
Jyoti Dubey
W/o Sh. Sushil Dubey
R/o 31-A, Gali No. 3, East Azad Nagar,
Delhi-110051.
......Appellant
VERSUS
Kanchan Gupta
W/o Sh. Lokesh Gupta
R/o 62-A, Gali No. 3, East Azad Nagar,
Delhi-110051.
......Respondent
Date of Institution : 23.03.2023
Date of reserve for Judgment : 04.03.2024
Date of decision : 19.04.2024
JUDGMENT
1. The present criminal appeal has been filed against
the order and judgment of conviction dated 20.02.2023 and order
on sentence dated 22.02.2023 passed by the Ld. Trial Court in
CC No. 50621/2016, whereby the appellant was convicted u/s
138 of Negotiable Instruments Act, 1881 (for short ‘NI Act) and
was directed to pay the double of cheque amount i.e., Rs.
3,00,000/- (rupees three lakh only) and in default, to undergo the
imprisonment for a period of six months.
2. Brief facts of the case are that the respondent filed a
complaint u/s 138 of NI Act against the appellant. As per the
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case of complainant, the appellant was friend and tenant under
the complainant in respect of a shop in property bearing no. E-
62A, Gali no. 3, East Azad Nagar, Delhi. The appellant
approached the complainant and requested for grant of Rs.
1,50,000/- (rupees one lakh fifty thousand only) as friendly loan,
as she was in need of money for raising construction of one
room. On the request of the accused, the complainant gave a
sum of Rs. 20,000/- (rupees twenty thousand only) each on
15.09.2011, 25.09.2011, 05.10.2011, 25.10.2011, 31.10.2011,
05.11.2011 and 20.12.2011 and Rs. 10,000/- (rupees ten thousand
only) to the accused on 25.12.2011. Thus, the complainant
advanced a sum of Rs. 1,50,000/- (rupees one lakh fifty thousand
only) in total to the accused as friendly loan. On repeated
requests of the complainant, the accused issued a post dated
cheque no. 157447 dated 02.01.2014 for a sum of Rs. 1,50,000/-
(rupees one lakh fifty thousand only) drawn on State Bank of
Bikaner and Jaipur, Krishna Nagar Branch, Delhi. The
complainant presented the said cheque with her banker at Punjab
and National Bank, but the same was dishonoured with the
remarks “insufficient funds” on 06.01.2014. The complainant
got issued a legal notice of demand dated 10.01.2014 within
fifteen days of the receipt of the notice, however despite
receiving of the notice, the appellant failed to make the payment
and therefore, the complaint was filed u/s 138 of NI Act.
3. Vide order dated 14.02.2014 Ld. MM after taking
cognizance of the offence u/s 138 of NI Act, issued summons to
the accused. The accused entered appearance and notice was
framed against the accused on 20.10.2014 to which, the accused
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Jyoti Dubey Vs. Kanchan Gupta
pleaded not guilty and claimed trial. In her statement of defence,
the accused stated that she had signed the cheque in question, but
the same was given for the purpose of security. She further
stated that she received the legal notice Ex. CW-1/C and duly
replied to the same. The complainant examined herself as CW-1
in support of the complaint and relied upon the original cheque
Ex. CW-1/A, the returning memo Ex. CW-1/B, legal notice Ex.
CW-1/C, postal receipts Ex. CW-1/D and Ex. CW-1/E and
tracking report Ex. CW-1/F. The court vide order dated
20.10.2014 allowed the application of the accused u/s 145(2) of
the NI Act and accused was permitted to cross examine the
complainant.
4. The complainant evidence was closed vide order
dated 25.11.2019. Statement of accused was recorded u/s 313 r/w
section 281 of Cr.P.C. on 16.03.2020. The accused stated that the
complainant had given a shop to her on rent and the cheque was
taken by the complainant from the accused on the pretext of
arranging a loan to purchase artificial jewellery for the said shop.
She further stated that she was sharing the said shop with the
complainant. Thereafter, accused stopped appearing and
proceedings u/s 82 Cr.P.C. was initiated against her. Vide order
dated 28.06.2022, the accused was declared as Proclaimed
Offender. The accused appeared before the court and was granted
bail on 07.10.2022. Despite, repeated opportunities, the accused
failed to lead defence evidence and accordingly, defence
evidence was closed vide order dated 05.01.2023. Ld. Trial
Court vide order dated 20.02.2023 convicted the accused u/s 138
of NI Act and vide order dated 22.02.2022, sentenced her to fine
of double amount of the cheque Ex. CW-1/1 i.e., Rs. 3,00,000/-
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(rupees three lakh only) and in default, to undergo imprisonment
for a period of six months.
5. Being aggrieved by the judgment and order dated
20.02.2023 and order on sentence dated 22.02.2023, the present
appeal has been preferred by the appellant. It has been argued on
behalf of the appellant that Ld. Trial Court in a mechanical way,
without application of mind, convicted the appellant and
sentenced her to pay double the amount of cheque. It is argued
that the cheque in question was not handed over to the
respondent against any debt or liability. It is submitted that the
respondent cannot prove by leading any reliable evidence that a
legally enforceable debt existed between the parties against
which, the cheque Ex. CW-1/1 was issued by the appellant. There
is no written agreement/note to show that any loan was advanced
by the respondent to the appellant. The complainant in her
statement dated 20.05.2019 admitted that the appellant/accused
was her tenant in the year 2011-2012 and that she does not have
any document regarding advancement of a sum of R. 1,50,000/-
(rupees one lakh fifty thousand only) to the appellant. It is also
admitted that the cheque in question was given to the respondent
by the appellant on 12.06.2012 i.e., after almost six months of the
alleged last transaction of advancing money and almost three
months after the due date of alleged promise of returning money
by the appellant/accused i.e. 31.03.2012. The cheque Ex. CW-
1/1 bears the date 02.01.2014 i.e., after approximately eighteen
months from the date when it was allegedly given to the
complainant/respondent. It is submitted that the complainant
could not give proper reply to the question of having such huge
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Jyoti Dubey Vs. Kanchan Gupta
money of Rs. 1,50,000/- (rupees one lakh fifty thousand only) in
her statements and her bank account shows that she had an
average balance of Rs. 20,000/- to Rs. 25,000/- only during the
period 2009 to 2012. It has been argued that the case of the
complainant/respondent is inconsistent, self-contrary, implausible
and unrealistic. It is submitted that on one hand, the complainant
has claimed that she advanced the loan of Rs. 10,000/- and Rs.
20,000/- in installments in the duration of three months i.e., from
15.09.2011 to 25.12.2011 and on the other side, complainant used
to get regular rent of the shop rented by the accused in cash in the
said same duration. The complainant has never disputed that she
has not received the rent from the appellant whereas, the
complainant has accepted that appellant was a tenant of the
complainant during the period 2011-2012. The complainant
claimed that the cheque in issue was given to the complainant by
the accused with intervention of some persons, but in her
evidence, complainant failed to disclose the name of those
persons and they were never examined as witnesses. The
complainant has been changing her statements before the Trial
Court. On 02.08.2016 she stated in her cross examination that
she was a housewife in the year 2011-2012 whereas, on
25.11.2019 she stated that she was running a boutique in the year
2011-2012. Further, on 19.03.2018 the complainant stated that
she could produce the rent agreement whereas, on 20.05.2019
she stated that she was not having any rent agreement pertaining
to the tenancy of her premises at the relevant time when the loan
was advanced to the accused. The respondent failed to prove her
financial capacity and was having very average balance in her
bank account. The complainant further claimed that the accused,
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her husband, her mother-in-law, her sister-in-law and her father-
in-law threatened the complainant and her family with dire
consequences, but on the intervention of some persons, she
issued the cheque however, no complaint was ever lodged by the
complainant in the police and the bear perusal of allegations
shows that each and every adult member of the accused in a
complaint, has been arrayed with a view to implicate them and
exaggerate the facts of the present case. It has been argued that
the appellant has never taken any loan from the complainant and
the cheque in issue was given to the complainant to arrange a
loan from the bank and the same has been misused by the
complainant. It has been further argued that no presumption
arises in the facts of the present case in favour of the
complainant. It has been further argued that the
onus could be shifted from the accused to the complainant either
by giving direct evidence or contradicting case of the
complainant while pointing out inconsistency of the prosecution
story. Reliance is placed on
Dhanvantry Balwantri Desai vs.
State of Maharashtra, AIR 1964 SCC 575.
6. Ld. Counsel for the Respondent has argued that
respondent/complainant advanced the loan of Rs. 1,50,000/-
(rupees one lakh fifty thousand only) as friendly loan to the
accused, who was in dire need of money for raising construction
of one room in her house property. The accused has admitted her
signatures on the cheque Ex. CW-1/1. On presentation, the said
cheque was dishonored and the appellant despite receipt of the
notice, failed to make payment of the cheque amount. The
accused has not replied to the legal notice which was received
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Jyoti Dubey Vs. Kanchan Gupta
and on 19.02.2014, much after the expiry of fifteen days raised
false and frivolous defence, whereas the complainant has already
filed a complaint on 12.02.2014. The complainant had examined
herself as CW-1 and has proved her case whereas, the accused
has failed to lead any defence evidence and was even declared
Proclaimed Offender during pendency of the proceedings.
Reliance is placed on the judgment of the Hon’ble Supreme
Court titled as
K. Bhaskaran vs. Sanskaran Balan, 1999 (7) SCC
510, wherein the Hon’ble Supreme Court has held that that once,
the signatures are admitted on the cheque, the presumption
envisaged u/s 118 of the Act, can be legally inferred that the
cheque was made or drawn for consideration on the date, which
the cheque bears. The accused has failed to rebut the submissions
u/s 138 of NI Act. The appellant never issued any instructions to
her banker for stopping payment of the cheque. The cheque was
dishonoured with the remarks “insufficient funds”. Reliance is
also placed on the judgment Jammu & Kashmir Bank vs.
Abhishek Mittal wherein, the Hon’ble High Court held that it is
not necessary that the cheque should be filled by the person
drawing the cheque in his own handwriting, once the blank
cheque is signed and handed over, it implied authority to the
holder of cheque to fill up the blanks and present the cheque.
Thus, it is argued that the present appeal is liable to be dismissed.
7. Arguments were heard and record was perused.
8. A perusal of the judicial record reveals that
complainant in her chief and cross examination has stated that
she was having rental income in the year 2011-12 and her bank
statement for the period 03.09.2008 to 11.09.2012 which was
exhibited as Ex. CW-1/D1, also shows that complainant has been
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depositing money in her bank account in cash from time to time
and even during the period 15.09.2011 to 25.12.2011 she has
withdrawn more than Rs. 30,000/- (rupees thirty thousand only)
from her bank account. The accused has taken the defence that
the cheque was handed over to the complainant for the purpose
of obtaining loan from some bank. The accused has not led any
evidence nor explained in her statement recorded u/s 313 Cr.P.C.
as to why she handed over the cheque to the complainant for
obtaining loan on her behalf whereas, there is nothing on record,
which suggests that complainant was working as an agent for any
bank. The accused has admitted that she handed over the cheque
in question to the complainant after putting her signatures on the
same. The cheque on presentation, was dishonored and service of
legal demand notice is not disputed. Once, the said facts are
established, presumption u/s 118-A and section 138 of NI Act
arises. The effect of presumption is that onus shifts to the
accused to rebut the same and to disprove the case of the
complainant. It is no more res integra that presumption may be
rebutted by leading direct evidence or by pointing out
inconsistencies/lacunas in the case of the complainant. A mere
denial of existence of legally recoverable debt is not sufficient to
rebut the presumption and something which is probable has tobe
brought on judicial record to shift the burden back to the
complainant. The accused in the present case, has failed to rebut
the presumption by raising any probable defence. She admitted
her tenancy under the complainant, which fact shows that the
complainant was having rental income during the period, the loan
was advanced to the accused. Thus, arguments advanced on
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Jyoti Dubey Vs. Kanchan Gupta
behalf of the appellant that the complainant did not have capacity
to advance the loan stands refuted by the arguments advanced on
behalf of the accused herself that she was a tenant under the
complainant and was paying the rent. As rightly pointed out by
Ld. Trial Court, the complainant has been able to stand the test of
cross examination in respect of the source of the funds advanced
to the accused, thus I do not find any infirmity in the judgment of
conviction dated 20.02.2023 and order on sentence dated
22.02.2023 passed by the Ld. Trial Court in CC No. 50621/2016.
Accordingly, the present appeal is dismissed.
9.
The appellant is directed to pay the amount of
fine imposed by the Ld. trial court vide order on sentence
dated 22.02.2023 within one month, as imposed by the Ld.
Trial Court from today, failing which, Ld. Trial Court may
take coercive action against the accused as per the order on
sentence.
10. Copy of this judgment alongwith TCR be sent to the
concerned Ld. Trial Court forthwith.
11. File be consigned to record room after due
compliance.
Announced in the open court
on this 19th Day of April, 2024
(ALOK SHUKLA)
ASJ-2/Special Judge (NDPS)
East District, Karkardooma Court,
Delhi/19.04.2024
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