Kumar Share Brokers Ltd vs Sanjiv Diwan
2012 Latest Caselaw 1914 Del

*           HIGH COURT OF DELHI AT NEW DELHI

+                 CRL. L.P. No.187/2007

                             Date of Decision : 20.03.2012

KUMAR SHARE BROKERS LTD.     ...... Petitioner
                   Through: Mr.P.C. Shukla, Adv.


                            Versus

SANJIV DIWAN                           ......      Respondent
                            Through: Mr. Rajat Joseph, Adv.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (Oral)

1. This is a leave to appeal filed by M/s.Kumar Share

Brokers Ltd., against the judgment of acquittal dated

14.07.2007, by virtue of which the respondent was

acquitted in respect of complaint filed by it under

section 138 of Negotiable Instruments Act.

2. The petitioner feeling aggrieved has filed the present

petition, seeking leave to appeal. Notice of this leave to

appeal was issued on 12.09.2007 but till date no leave

to appeal has been granted.

3. I have heard the learned counsel for the petitioner on

the question of leave to appeal and also gone through

the record.

4. Briefly, stated the facts of the present case are that the

petitioner is a private limited company incorporated

under Indian Companies Act and doing the business of

sale and purchase of shares. Sh.Pankaj Chauhan is an

employee of the petitioner-company, who had filed a

complaint against the respondent, alleging that he had

issued a cheque bearing No.860908, dated 02.03.2001

for a sum of Rs.75,000/- drawn on Corporation Bank,

Laxmi Nagar Branch, which on presentation was

dishonored with the remarks "payment stopped by the

drawer" .

5. The petitioner is alleged to have received the cheque

from its banker on 30.08.2001. A legal notice dated

12.09.2001 is purported to have been issued under a

registered AD and UPC, which is stated to have been

received by the respondent. Since the respondent is

alleged to have not made the payment, a complaint

against the respondent was filed under Section 138 of

the N.I. Act. Notice under Section 251 Cr.P.C. was

served on the respondent to which he claimed trial.

Thereafter, the petitioner examined five witnesses CW-1

to CW-5. Sh.Pankaj Chauhan/CW-1 was the witness,

who proved Resolution of Board of Directors as Ex.CW-

1/1. The documents, i.e., the cheque, bank memo, legal

notice, postal receipt and UPC receipt, returned

registered envelop and AD card were exhibited as CW-

1/2 to CW-1/6. Sh.Ramesh Arora/CW-2 is the Managing

Director of the petitioner-company. Sh.Chander Pal/CW-

3 is the Assistant Postal Officer. Sh.Mandeep Singh/CW-

4 is the Officer of the Corporation Bank, who proved the

statement of account of complainant bank as Ex.CW-4/A

and computerized cheque returned memo as Ex.CW-

4/2. Sh.Abhijeet Mehrotra is the Assistant Manager of

HDFC Bank, who proved memo dated 29.08.2001 as

Ex.CW-5/1, purported to have been issued by their

Bank to the petitioner.

6. After recording of the statement of the accused in

defence evidence, the accused/respondent examined

himself as DW-1 and proved that the petitioner had

earlier taken a loan of Rs.7,20,000/- from the

respondent and balance sheet Ex.DW-1/3 in which the

said amount has been reflected as a loan amount by the

respondent to the petitioner-company was also proved.

7. The learned trial Court after hearing the arguments

acquitted the respondent mainly on two grounds. The

first ground was that the petitioner is alleged to have

made interpolation on the cheque in question. It was

noted that the word "stop payment" was erased and

cheque was presented for the second time. This gave

rise to a doubt with regard to the genuineness of the

presentation of the cheque and the plea of the

respondent was believed that the cheque was issued as

a security for the purchase of shares in which the

petitioner-company was dealing.

8. The second ground on which the respondent was

acquitted was that the defence of the respondent was

found to be plausible. The defence, which was taken by

the respondent, was that although the cheque, in

question, was issued to the petitioner but this was by

way of loan to the petitioner and after issuance of the

cheque, the respondent had a second thought of

advancing the money to the petitioner by way of loan as

the earlier loan amounting to Rs.7,20,000/- was still

due and outstanding from the petitioner. No evidence

on record was brought by the petitioner to rebut this.

9. The petitioner feeling aggrieved by this reasoning of

acquittal of the respondent for an offence under Section

138 of N.I. Act has chosen to file the present leave to

appeal.

10. I have heard the learned counsel for the parties and

gone through the record.

11. I feel that there is absolutely no ground on the basis of

which the leave to appeal can be granted to the

petitioner. The reasons, given by the learned trial Court

for acquittal, are very cogent and genuine. The first

reasoning is that the cheque, on presentation by the

petitioner, was received back initially with the word

"stop payment". The cheque itself has been exhibited

and a physical and visual inspection of cheque would

clearly show that the petitioner either itself or through

its employees has erased the word "stop payment" and

tried to present the cheque again. In case, the

petitioner has gone to the extent of interpolating the

cheque, the conduct of the petitioner-company becomes

doubtful and so does its credibility. Once the cheque is

presented to the bank and is received back with an

endorsement 'stop payment', there is absolutely no

occasion for the drawer for whose benefit the cheque

was issued to present the cheque again.

12. In the instant case, there is no doubt that the cheque

was presented twice and the demand notice for

payment of the outstanding amount of cheque has been

issued on the basis of the second presentation.

Therefore, this raises a doubt in the genuineness of the

transaction itself and cheque cannot be said to be

issued by the respondent for consideration of the

purchase of shares. Moreover, the petitioner has not

adduced any evidence to show as to what number of

shares and of which company, were purchased by the

respondent for which the consideration was paid.

13. The second ground is that the cheque is purported to

have been issued by the respondent by way of

advancing a loan but it has been stated by him by

entering into the witness box that although in the first

instance he had issued the cheque to the petitioner by

way of loan but he had a second thought with regard to

permitting the petitioner to encash the cheque. This was

on account of the fact that there was already an

outstanding amount of Rs.7,20,000/- due and payable

by the petitioner to the respondent. In this regard, the

balance sheet as well as statement of the bank has

been proved by the respondent. There is absolutely no

reason to doubt the testimony of the respondent nor

has the petitioner been able to demolish the testimony

of the respondent. On the contrary, the conduct of the

petitioner-company in scratching and manipulating or

interpolating the cheque creates doubt in its story. In

criminal matters, the accused cannot be convicted until

and unless the guilt of the accused is proved beyond

reasonable doubt. Same is the case here. The petitioner

has not been able to establish the guilt of the

respondent beyond any reasonable doubt and that has

been the basis for acquittal of the respondent.

14. I find no good ground for grant of leave to appeal to the

petitioner, in the light of the reasoning and the facts of

the case. Accordingly, leave to appeal is dismissed.

V.K. SHALI, J.

March 20, 2012 SS