Full Text
HIGH COURT OF DELHI
Date of Decision: 02.08.2016
SHEELA SHARMA..... Petitioner
Through: Dr. L.S. Chaudhary, Mr. Anil Dwedi, Ms. Reema Bhola & Mr. Sandeep Bhutani, Advocates.
Through: Mr. K.K. Kundra, Advocate.
JUDGMENT
1. I have heard learned counsel for the petitioner as well as learned counsel for the respondent on the aspect of grant of leave.
2. Leave granted. Crl. Appeal No. /2016 (to be registered and numbered)
3. Let the appeal be registered and numbered.
4. I have heard learned counsel for the appellant and proceed to dispose of the appeal at this stage itself. 2016:DHC:5472
5. The appellant assails the judgment dated 18.05.2015 passed by the learned Metropolitan Magistrate – 03 (East), Karkardooma Courts, in complaint case No. 375/01/2011 whereby the appellant’s aforesaid complaint under Section 138 of the Negotiable Instruments Act was dismissed and the respondents/accused acquitted. The appellant had filed the said complaint on the premise that her late husband and the accused had friendly relations. The accused had approached her husband for a friendly loan of Rs. 10 lakhs in order to purchase a property. The complainant collected the amount of Rs. 10 lakhs from her resources and gave the same to the accused in the first week of October, 2008, for 24 months only. The amount was to be repaid in monthly instalments of Rs. 35000/- on fifth of every English calendar month. The remaining amount of Rs. 1,60,000/- was to be paid by the accused to the complainant on 03.10.2010. The accused, with a view to secure his liability, issued a post-dated cheque bearing NO. 159064 dated 21.07.2011 for Rs. 10 lakhs drawn on Axis Bank, Shakti Nagar branch, in favour of the complainant and assured that the said cheque would be honoured on presentation. The accused, however, did not comply with the said agreement. Consequently, the accused was informed that the complainant shall proceed to deposit the cheque for encashment. The same was not objected to by the accused. When the cheque was deposited, the same was returned unpaid for insufficient funds vide cheque returning memo dated 09.08.2011. Consequently, a legal notice dated 23.08.2011 was sent to the accused which was despatched on 01.09.2011, making a demand for payment of the cheque amount within 15 days. The same was sent by registered A.D., UPC and Speed Post. The complainant stated that the accused did not reply to the notice, nor made payment of the cheque amount and, consequently, the complaint was preferred.
6. The Learned Magistrate took cognizance of the offence on 24.09.2011 and issued summons to the accused. Notice under Section 251 Cr.P.C. was framed on 02.11.2011, to which the accused pleaded not guilty and claimed trial. The accused admitted that he had entered into an agreement with the husband of the complainant to seek a loan of Rs. 10 lakhs in October, 2008. However, his defence was that the said transaction did not materialize between the parties. The loan amount, according to the accused, was not disbursed by the husband of the complainant to him. The accused admitted issuance of the cheque in question and that the same was dishonoured upon presentation. He also admitted the receipt of legal notice. He claimed that he had taken a loan from Axis Bank in February, 2009 and he had no pecuniary liability towards the complainant.
7. The complainant examined three witnesses. She examined herself as CW[1]. She tendered her evidence and exhibited the cheque in question (Ex.CW1/1), cheque returning memo (Ex.CW1/2), legal notice dated 23.08. 2011 (Ex.CW1/3) and the postal receipt dated 01.09.2011 (Ex.CW1/4A to Ex.CW1/4D). CW[2] is one Shri Raghubir Singh Chaudhary, an eye witness to the transaction of giving of loan to the accused, and CW[3] is the daughter of the complainant, Smt. Sadhna Tiwari. The said witnesses were crossexamined by the accused.
8. The statement of the accused under Section 281 read with Section 313 Cr.P.C. was recorded on 05.02.2014. He reiterated the same stand as taken by him at the time of framing of notice. He also stated that before he could take back the cheque from the husband of the complainant, he expired. The accused, in support of his defence, examined himself as DW[1].
9. The trial court observed, and rightly so, that the only issue that required adjudication was whether the cheque was issued by the accused to the complainant in discharge of legally enforceable debt or liability. The trial court also observed that in the facts of this case, the legal presumption under Section 139 N.I. Act stood rebutted. The Trial Court, while holding that the accused had rebutted the said presumption, took into account the following aspects: (a) That the complainant admitted that she is not an income tax payee. She deposed that her husband had given the amount to the accused by way of cash. This was in contravention of section 269SS of the Income Tax Act. (b) The complainant had deposed in her cross-examination that the amount of Rs. 10 lakhs was arranged by her husband by selling his house and by their own savings. She had claimed that the amount had been advanced in the presence of CW2-Raghubir Singh Chaudhary. CW[2] had deposed that the complainant handed over Rs. 10 lakhs to the accused in cash and at that time, the accused handed over the fully filled cheque of Rs. 10 lakhs in the name of the complainant, to the complainant. The trial court was, however, not impressed with this version, on the ground that no written agreement had been entered into between the parties. It was also hard to believe that a person would sell his property and give his savings to another person by way of a friendly loan to the tune of Rs. 10 lakhs.
(c) A perusal of the cheque revealed that the cheque was signed and the amount in figures was written in one handwriting, and the name of the payee and the date and the amount in words was written in another handwriting.
(d) Though, CW[2] Raghubir Singh Chaudhary had stated that the cheque in question was handed over to the complainant on the same day when the loan was advanced to the accused, no written instruction was placed on record by the complainant to show that the accused had authorized the complainant to present the cheque in question before the bank. (e) The cheque in question was a security cheque, in view of the deposition of the complainant that the cheque was handed over by the accused when the loan was handed over to him. It was a cheque in respect of a debt which was not payable in praesenti when the cheque was issued, but it was in respect of a debt which had to come into existence subsequently-since the loan was repayable in monthly instalments, as aforesaid. (f) The friendly loan of Rs. 10 lakhs was not shown in her income tax returns by the complainant, which raises a suspicion on the version of the complainant.
10. The submission of learned counsel for the appellant is that the reasoning of the learned Magistrate is completely perverse and unsustainable. Learned counsel submits that in her cross-examination, CW[1] had stated that at the time of handing over of the cheque in question by the accused to her husband, the same was already filled up in all respects. She had denied that the cheque, when handed over to her husband, was blank. CW[1] also stated that the money had been arranged by her husband by selling her house and the remaining was arranged from their savings. She also stated that the same was given in the presence of CW2-Raghubir Singh Chaudhary, who was a friend of her husband. Learned counsel submits that CW-1 withstood her cross examination, and no contradiction, inconsistency or improvements could be brought out, so as to discredit her testimonies.
11. Learned counsel for the appellant has also laid emphasis on the crossexamination of CW[2] Raghubir Singh Chaudhary. He deposed that the husband of the complainant Mr. Y.S.Sharma passed away on 10.10.2010. He further deposed that he learnt that the accused was habitual in taking loans from friends and thereafter he never returned the friendly loan amounts. The accused had taken loans from Dinesh Gupta, Sohan Lal, Veena Rani and Parmod, who were officials of Branch No. 123, LIC. Till date, they had not been returned the friendly loans by the accused. Learned counsel for the appellant has particularly highlighted the suggestion given to CW[2] Raghubir Singh Chaudhary, in his cross-examination. In his crossexamination, CW[2] stated that, “it is wrong to suggest that the loan has been given on interest basis. Volunteered that the said loan was given as a friendly loan.” Learned counsel for the appellant, therefore, points out that even according to the respondent/accused, the loan had been given to him by the complainant, though, according to the accused, the same was given on interest and not as a friendly loan.
12. Learned counsel submits that whether loan in cash had been advanced, or not, is a matter of fact. Merely because the same was not advanced by way of an account payee cheque and there may have been contravention of Section 269SS of the Income Tax Act, the transaction does not become illegal. If the advancement of the loan, in cash, as a matter of fact is established, violation of Section 269SS of the Income Tax Act would not render the loan as not recoverable through a legal process. He also submits that it was not necessary that the parties should have entered into a written agreement at the time of advancement of the loan.
13. The Trial Court also erred in assuming that the appellant’s husband has sold his property only to give a friendly loan to the respondent. The husband of the appellant has sold his property, and at that stage, the respondent had sought a loan. Since the said amount was available, it was advanced as a friendly loan to the respondent on his promise to return the same, as aforesaid.
14. Learned counsel further submits that the difference in the handwritings in the cheque was of no relevance, considering the fact that the respondent admitted to delivery of the cheque. The Court found that the cheque was signed and the amounts in figures was written in one handwriting, and the name of the payee, the date, and the amount in words written in another handwriting. However, the stand of the respondent was that he had given a blank cheque. It was not his stand that he had filled in any other details. In any event, even if a blank cheque is given by the drawer, there is an implied authority that the drawee may fill in the other details and the cheque does not become invalid on account of the details being filled up subsequently by the drawee.
15. Learned counsel further submits that the learned Magistrate laid much emphasis on the aspect that “No written instruction is placed on record by the complainant to show that the accused has authorised her later on to present the cheque in question before the bank”. He submits that there is no legal requirement that the drawer of the cheque should give specific written instructions to the drawee, authorising him to present the cheque for encashment. The learned Magistrate completely misdirected himself by laying emphasis on the said aspect.
16. Learned counsel further submits that the learned Magistrate has proceeded on the basis that the cheque was a security cheque and that the dishonour of such a cheque would not invite penal action under Section 138 of the NI Act. He submits that the Trial Court has failed to take note of the decision of this Court in Suresh Chandra Goyal Vs. Amit Singhal decided on 14.05.2015 in an appeal arising out of Crl.L.P. No.706/2014.
17. On the other hand, learned counsel for the respondent has supported the impugned judgment. Learned counsel submits that the appellant has neither produced any receipt in respect of the alleged advancement of loan, nor reflected the availability of funds in her account, or in her income-tax returns for the relevant period. She also did not reflect the alleged loan in the income tax returns for the relevant period. Thus, the presumption under Section 139 of the NI Act stood rebutted on preponderance of probabilities.
18. Having heard learned counsel, perused the record and considered the rival submissions, I am inclined to allow the present appeal and convict the respondent.
19. Firstly, the Trial Court has completely ignored and glossed over the testimony of CW-2 Raghubir Singh Chaudhary. CW-2 was an independent witness. The respondent could not establish any reason to doubt the testimony of CW-2. CW-2 stated that he, the husband of the complainant, and the accused worked for LIC. He had known both the husband of the complainant and the accused for two decades and more. He stated that they all had friendly and family relations. Thus, there is no reason to doubt the testimony of CW-2. CW-2 in his examination-in-chief, inter alia, deposed: “… … … Accused requested Late Sh. Y.S. Sharma for giving friendly loan of Rs.10 lakhs as he is an urgent requirement of the same. That considering the friendly relationship, Late Mr. Y.S. Sharma got read to grant a loan of Rs.10 lakhs to the accused. In the first week of of October, 2008, accused and I went to the house of complainant. Sh. Y.S. Sharma asked the complainant to give Rs.10 lakhs to the accused. The complainant handed over Rs.10 lakhs to the accused in cash. Then, the accused handed over a fully filled cheque of Rs.10 lakhs which was in the name of Smt. Sheela Sharma to the complainant. Accused assured Sh.Y.S. Sharma that this cheque will be honoured when it will be presented to the bank.”
20. Pertinently, the above testimony of CW-2 went unchallenged. No suggestion was given to CW-2 that his above testimony was false. The only suggestions on this aspect given to him was that: the accused had never visited the present house of the complainant, and; that the accused had given blank signed cheque to the complainant as a security.
21. Pertinently, CW-2 stated that the accused had similarly taken friendly loans from others working in LIC, and he had even named those persons. He stated that the accused had not returned even those loans. The cross examination of CW-2 on this aspect is minimal. The only question put to CW-2 by the accused in this regard was answered by CW-2 by stating: “I am not sure whether the persons mentioned in my chief, who have given the loan to the accused will come to this Hon’ble Court as a witness”.
22. There was no suggestion given to CW-2 so as to deny the categorical statement of CW-2 that the accused had similarly taken friendly loans from other LIC employees named by CW-2, and that the accused had failed to repay the same. The respondent accused in his cross-examination as DW-1 also admitted that he is appearing in another cheque bouncing case filed against him. He also admitted that he knew Raghubir Singh Chaudhary CW-2.
23. Pertinently, the suggestion given to CW-2 by the respondent accused, as noticed hereinabove, was that the loan had been given on interest basis. No doubt, this suggestion by itself does not constitute admission of the respondent to the effect that the loan had been advanced by the complainant to him. However, this suggestion contains the defence of the accused. The purpose of this suggestion was to extract an admission of the witness CW-2, that the loan was advanced on interest basis, and not as a friendly loan. Thus, the advancement of the loan by the complainant to the respondent/ accused stands established.
24. The mere advancement of the loan in cash, may entail consequences for the party acting in breach of Section 269 SS of the Income Tax Act. That is not the concern of this Court. Whether, or not, the appellant reflected the availability of the said amount in her income-tax returns, is also not a matter of concern for this Court. That would again be an aspect to be considered by the income-tax authorities. The advancement of loan, in cash, to the tune of Rs.10 Lakhs is not prohibited in law. The transaction of advancement of loan of Rs.10 Lakhs, in cash, does is not illegal. Such a transaction is enforceable at law.
25. Breach of Section 269 SS of the Income Tax Act provides the penalty to which the person would be subjected to under Section 271D of the Income Tax Act. Section 271D does not provide that such a transaction would be null & void. The payer of the money in cash - in violation of Section 269 SS of the Income Tax Act would, therefore, be entitled to enforce an agreement of advancement of money in cash beyond Rs.20,000/-.
26. In this regard, I may refer to, firstly, the decision of the Bombay High Court in Jayantilal M Jain v. M/s. J.M. Sons & Ors., 1991 SCC Online Bom. 112. This was a summary suit based on a bill of exchange. The defendant in his affidavit, inter alia, raised the plea that the transaction was barred under Section 269SS of the Income Tax Act, 1961. It was contended on behalf of the defendant that in view of bar under Section 269SS of the Income Tax Act, Section 23 of the Contract Act would also come in the way of the plaintiff. This plea was rejected by the court. In para 7 of the judgment, the court observed: “...... In reply to the plea of bar of section 269(SS) of the Income-Tax Act, this Court has rightly observed that the prohibition under the Act was against taking or accepting and not against giving the amount. In view of this, in my opinion, the plea of bar of section 23 of the Contract Act would not survive for my consideration.”. The earlier decision referred to in the above extract was the decision of the same court in Civil Revision Application No.573/1990 decided by Suresh, J.
27. I may also refer to the decision of the Madras High Court in K.T.S. Sarma, Seshasayee Brothers (P) Ltd. v. Subramanian, Prop. Kumar Videos, 2001 SCC Online Mad. 520. This was a suit for recovery of money, which was decreed by the Trial Court. In appeal, the defendant raised the issue whether the amount advanced by the plaintiff by way of cash is legal and recoverable in view of Section 269SS of the Income Tax Act. The submission of the defendant/ appellant was that the contract between the parties was unlawful and the same was also hit by Section 23 of the Contract Act. It was contended that the agreement was void and could not be enforced. While rejecting the said plea of the defendant/ appellant, the Madras High Court, inter alia, observed: “24. From the decisions relied upon by either side and the discussions made above, it is made clear that maxim “in pari delicto “cannot be made applicable in the following circumstances:
(i) Section 269 SS of the Income Tax, which falls under
Chapter XX-B, opens with the caption “Requirement as to Mode of acceptance, payment or repayment in certain cases to counteract evasion of Tax.” As such, this chapter and the Section are introduced with main object to prevent the evasion of tax. In the absence of any evasion of tax, the borrower (the defendant) in the case cannot take shelter under the Section and he is liable to repay the amount.
(ii) As Section 269 SS is visited with penalty under Section
271 D of the Income Tax Act, the object of imposing penalty is merely to the protection to the Revenue, and then the contract will not be regarded as prohibited by implication.
(iii) If it was not the object of the parties at the time when the transaction was entered into to circumvent or to defeat the provisions of the Income Tax, the contract is not void”.
28. In the present case, the object of the parties when the transaction was entered into cannot be said to be to circumvent or defeat the purpose of the Income Tax Act. The defendant would not have issued the cheque in question had the object of the loan transaction been to defeat the provisions of the Income Tax Act.
29. Lastly, I may refer to the judgment of the Karnataka High Court in Mohammed Iqbal v. Mohammed Zahoor, 2007 SCC Online Kar 282. The issue that arose before the court in this case was whether the provision of Section 269SS of the Income Tax Act disentitle the plaintiff from filing the recovery suit. The said issue was answered by the court by holding that breach of Section 269SS did not tantamount to the transaction being null and void and unenforceable. The relevant extract from this decision reads as follows: “6. The Apex Court in the case of the Asst. Director of Inspection Investigation v.Kum. A.B. Shanth [(2002) 6 SCC 259: AIR 2002 SC 2188.] while upholding the constitutional validity of Sec. 269 SS observed thus:— “The object of introducing S. 269 is to ensure that a tax payer is not allowed to give false explanation for his unaccounted money, or if he has given some false entries in his accounts, he shall not escape by giving false explanation for the same. During search and seizure unaccounted money is unearthed and the tax payer would usually give the explanation that he had borrowed or received deposits from his relatives or friends sand it is easy for the so-called lender also to manipulate his records later to suit the plea of the tax-payer. The main object of S. 269-SS was to curb this menance.
7. In the light of the observations of the Apex Court, it cannot but be said that Sec. 269-SS only provided for the mode of acceptance payment or repayment in certain cases so as to counteract evasion of tax. Sec. 269-SS does not declare all transactions of loan, by cash in excess of Rs. 20,000/- as invalid, illegal or null and void, while as observed by the Apex Court, the main object of introducing the provision was to curb and unearth black money. To construe Sec. 269-SS as a competent enactment declaring as illegal and unenforceable all transactions of loan, by cash, beyond Rs. 20,000/-, in my opinion, cannot be countenanced.
8. Yet another reason for this opinion is Sec. 271 -D which reads thus:— “271-D. Penalty for failure to comply with the provisions of Section 269-SS. (1) If a person takes or accepts any loan or deposit in contravention of the provisions of Section 269-SS, he shall be liable to pay, by way of penalty, a sum equal to the amount of the loan or deposit so taken or accepted.
2) Any penalty imposable under sub-section (1) shall be imposed by the Joint Commissioner.” In that if a person takes or accepts any loan or deposit in contravention of Sec. 269-SS is liable to pay, by way of penalty, a sum equal to the amount of the loan or deposit so taken or accepted, as may be imposed by the Joint Commissioner.
11. The contravention of Section 269 SS though visited with a stiff penalty on the person taking the loan or deposit, nevertheless, the rigor of Section 271D is whittled down by Section 273B, on proof of bonafides. It cannot therefore be said that the transaction of the nature brought before this court could be declared illegal, void, and unenforceable”.
30. In cases where the complainant claims to have advanced a friendly loan in cash, and where the transaction of loan is not evidenced by any other documentary or other reliable evidence, no doubt, the aspect whether the availability of funds in cash with the complainant/ lender, and its advancement as loan to the accused have been reflected in the income tax returns of the complainant/ lender, or not, become relevant. If, the availability of funds, and the loan transaction itself is not so reflected, that factor is taken note of by the Court as relevant to hold that the presumption under Section 118 and 139 of the NI Act stands rebutted. However, these considerations would not be relevant, where loan transaction itself is otherwise established, either through documentary evidence – such as, a receipt or a loan agreement, or acknowledgement executed by the accused, or by oral evidence of an independent witness who is found to be credible. In the present case, the loan transaction, though not recorded in an agreement, or a receipt or acknowledgement executed by the accused, and though not reflected in the income-tax returns of the complainant, is evidenced by the oral testimony of CW-2, who is an independent witness and highly credible.
31. The cheque in question cannot be said to be merely a security cheque for the reason that the same was issued in consideration of the loan of Rs.10 lacs taken by the respondent/ accused from the appellant/ complainant. Merely because the debt may have been repayable subsequently in instalments, it cannot be said that on the date of issuance of the cheque, the debt did not exist. The mode and manner of its repayment was all that was postponed. In any event, on the date of presentation of the cheque, the debt was crystallised and ascertained. In Suresh Chandra Goyal v. Amit Singh, criminal appeal arsing out Crl LP No.706/2014 decided on 14.05.2015, this court, after detailed analysis of large number of decisions including those of the Supreme Court observed: “61. Thus, in my view, it makes no difference whether, or not, there is an express understanding between the parties that the security may be enforced in the event of failure of the debtor to pay the debt or discharge other liability on the due date. Even if there is no such express agreement, the mere fact that the debtor has given a security in the form of a post dated cheque or a current cheque with the agreement that it is a security for fulfillment of an obligation to be discharged on a future date itself, is sufficient to read into the arrangement, an agreement that in case of failure of the debtor to make payment on the due date, the security cheque may be presented for payment, i.e. for recovery of the due debt. If that were not so, there would be no purpose of obtaining a security cheque from the debtor. A security cheque is issued by the debtor so that the same may be presented for payment. Otherwise, it would not be a security cheque........”.
62. Section 138 of NI Act does not distinguish between a cheque issued by the debtor in discharge of an existing debt or other liability, or a cheque issued as a security cheque on the premise that on the due future date the debt which shall have crystallized by then, shall be paid. So long as there is a debt existing, in respect whereof the cheque in question is issued, in my view, the same would attract Section 138 of NI Act in case of its dishonour”.
32. The other considerations that weighed with the learned Magistrate so as to hold that the presumption in favour of the appellant/ complainant stood rebutted, appear to be wholly irrelevant. Merely because there was no written agreement with regard to the loan transaction, does not raise a doubt about the existence of such a transaction, when the same has been established by the unimpeached testimony of CW-2, who is an independent and credible witness. The cheque in question was, admittedly, delivered by the accused himself. Even in his examination-in-chief, the accused DW-1 merely states that “the husband of the complainant visited my house and took the cheque in question in lieu of security with the assurance that he would provide the requisite friendly loan to the tune of Rs.10 Lakhs”. He does not state that he delivered a blank cheque, merely signed by him, to the husband of the appellant/ complainant. The Trial Court has also taken as relevant, the consideration that there was no written instruction given by the accused, authorising the presentation of the cheque in question for encashment by the complainant/ appellant. In my view, this reasoning of the learned Magistrate is absurd. It is unheard of, that in the normal course of transactions, the drawer of the cheque issues separate instructions to the holder/ payee authorising him to deposit the cheque for encashment. Absence of such authorisation certainly cannot be taken as a factor against the complainant, so as to rebut the presumption under Section 118 and 139 of the NI Act.
33. Thus, the finding returned by the Trial Court that the cheque in question was a security cheque, or that it was not issued in respect of an outstanding debt or liability, cannot be sustained and is set aside. The respondent/ accused has not been able to rebut the presumption that there was an outstanding debt owed by the respondent accused to the appellant of Rs.10 Lakhs, and the cheque was issued towards repayment thereof. Consequently, the dishonour of the said cheque, and non-payment of the amount despite service of statutory notice under Section 138, resulted in the commission of offence under Section 138 of the NI Act.
34. Resultantly, the respondent is held guilty of commission of offence under Section 138 of the Negotiable Instruments Act.
35. List on 24.08.2016 for hearing on the aspect of sentence. The respondent shall remain personally present in Court on the next date.
VIPIN SANGHI, J AUGUST 02, 2016 B.S. Rohella