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* IN THE fflGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 575/2016
ASHOK KUMAR Petitioner
Through : Mr. Kuldeep Gola, Adv.
Through : Mr. Tarang Srivastava, AFP for State.
V + CRL.REV.P. 577/2016
ASHOK KUMAR Petitioner
Through : Mr. Kuldeep Gola, Adv.
Through : Mr. Mukesh Kumar, APP for State.
% 01.09.2016
Respondent no.2 filed two complaints under Section 138 of the
Negotiable Instruments Act, 1881 before the Metropolitan Magistrate, Delhi in respect oftwo cheques issued by the petitioner, towards repayment ofthe loan. One cheque dated 19^ January, 2012 was for ^80,000/- and other cheque dated 27^^ June, 2011 was for ^1,60,000/- both drawn at Andhra
Bank, Karol Bagh, New Delhi and favouring respondent no.2. Respondent no.2 alleged in the complaint that on presentation, both the cheques were returned dishonoured by the banker of petitioner vide return memos dated 1^^
2016:DHC:9233
, • V
October, 2011 and 25^ Januaiy, 2012 respectively, with the remarks "No such Account". Despite service of legal demand notice on the petitioner within the prescribed period, the amounts involved in the cheques were not paid by the petitioner to respondent no.2 within the period stipulated in
Section 138 of the Act. Hence, the complaints.
V Notices under Section 251 Cr.P.C. were served on the petitioner to which petitioner pleaded notguilty and took thefollowing defence;-
"At the time of taking loan of ^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 notice nor given any information for filing of the present. complaint.
^ Hence, the complainant is also liable to be f prosecuted. The loan amount was returned to the complainant in presence of my wife and Pradeep as witnesses and at the time of taking of loan amount, an affidavit of ^50,000/- was also executed bythe complainant which is also lying in possession of the complainant."
Respondent no.2 led evidence. Thereafter, statements of the petitioner were recorded under Section 313' Cr.P.C. on 6^ August, 2014 wherein he tookthe following stand:-
"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 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 ^50,000/- in the year 2004 which had to be returned after three months. I had also taken
V loan of ^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 ?30,000/-.was reduced into writing at the time of taking of same 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 anotherperson namely, Mr. Pradeep Kumar. The said loan amount was returned from time to time in the presence ofthe said witnesses."
Petitioner examined himself as DW-1 in his defence. It is noted that the trial court scrutinized the entire evidence on record including the statements of CW-1, DW-1 as also documents placed on record and has convicted the petitioner for the offence under Section 138 ofthe Negotiable
Instruments Act, 1881 (The Act' for short), in both the cases. In the complaint case pertaining to the cheque for ^1,60,000/-, petitioner has been sentenced to undergo SI for two months and to pay compensation of ^2
Lakhs and in default of payment of compensation of Lakhs to complainant (respondent no.2) within a month to undergo SI for three months. As regards, complaint case pertaining to the cheque for ^80,000/-, petitioner has been sentenced to undergo SI for one month and to pay compensation of Lakh to complamant (respondent no.2) within a month and in default to undergo SI for two months.
Petitioner preferred appeals against his conviction and sentences before the District and Sessions Judge (West), Delhi, which have been dismissed by the common
ORDER
That is how petitioner is before this Court.
Appellate court has concurred with the findings returned by the trial court, after scrutinizing the evidence of both the parties and material placed on the trial court record. There are two concurrent findings of facts of the courts below.
It was contended before the courts below that the cheques were undated and blank when the same were handed over by the petitioner to respondent no.2; as security to ensure repayment of loan of ?50,000/- taken in the year 2004. Respondent no.2 had filled the date and amounts in the cheques and presented the same illegally, in order to extort money from the petitioner. It was further contended that no prudent person would advance loan again when the first loan had remained unpaid. Respondent no.2 alleged that the previous loan extended in the year 2004 was not repaid, however, he alleged to have advanced another loan in the year 2011, which is improbable. Legal demand notice had remained unserved, therefore, ingredients of offence under Section 138 were not satisfied. It was also contended that documents were not proved but relied upon by the Trial
Court. Appellate court has dealt with the contentions raised by the petitioner.
By placing reliance on the judgment dated 5^ May, 2011 passed in
Crl.M.C.1454/2011 titled as Vijender Singh Vs. Eicher Motors Limited &
Anrs., judgment dated 13^ March, 2008 passed in Crl.M.C.5211/2006 titled as Ravi Chopra Vs. State & Anr. and judgment tilted as Jaipal Singh Rana
Vs. Swaraj Pal, 149 (2008) DLT 882, appellate court has held that plea of handing over the blank cheque was not sufficient to discard the case of complainant/respondent no.2. In Jaipal Singh Rana (Supra) it has been held that there is no law that requires that particulars of the entire cheque should be filled in by the drawer himself In Vijender Singh (Supra), it has been held that any person who issues a blank signed cheque should understand the consequences of doing so. In Ravi Chopra (Supra), it has been held as under:-
"Where the accused facing the trial for the offence u/s 138 is disputing the signature on the cheque itself, then this is a permissible defence within the scope of Section 138 of NI Act but where the
W 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 20 ofNI Act also say so."
Judgment titled as Rangappa Vs. Sri Mohan and reported in AIR
2010 SC 1989, wherein it has been held 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, has also been relied. Appellate court has also held that petitioner had taken a shifting stand. Reliance has been placed on the observations made by the Trial court, which reads thus: "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 r ^50,000/- from the complainant way back inyear 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 takeprompt steps and legal recourse against any misuse of such cheques. Evidently, nothing of thissorthad been done by the accused. The accused himself says certain stamp-papers were 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 the misuse of cheques and documents." It is trite to say that in exercise of its revisional jurisdiction. High Court is not to sift and weigh the evidence onrecord as if hearing an appeal and substitute a finding against what has been arrived by the two courts below after marshalling the evidence. Only gross perversity in the findings as well astheprocedural illegality, if any, has to be considered. High Court can interfere only if petitioner is able to demonstrate any flagrant violation or misuse ofprocedure in the order orthat the settled legal position had been ignored. Petitioner has failed to point out any perversity and illegality in the impugned orderresulting in miscarriage ofjustice. It cannotbe said that the findings returned by the courts below are without any evidence and/or % are perverse. I am of the view that concurrent findings relied by the courts below are in consonance with the documentary as well as ocular evidence adduced by the parties and in accordance with the settled legal principles and does not sufferfromany illegality or perversity. Both the revision petitions are dismissed. A.K.PATHAK, J. SEPTEMBER 01,2016/dk