Delhi High Court
Om Prakash Taneja vs Raj Kumar on 5 October, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 7th SEPTEMBER, 2016
DECIDED ON : 5th OCTOBER, 2016
+ CRL.A.814/2014
OM PRAKASH TANEJA ..... Appellant
Through : Mr.Narender Bhandari, Advocate.
VERSUS
RAJ KUMAR ..... Respondent
Through : Respondent is present in person.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Challenge in this appeal is a judgment dated 07.05.2011 of
learned Addl. Sessions Judge in Crl.A.No.04/2011 by which orders on
conviction and sentence dated 29.01.2011 and 04.02.2011 respectively of
learned Metropolitan Magistrate in the proceedings instituted under Section
138 Negotiable Instruments Act were set aside. The appeal is contested by
the respondent.
2. I have examined the file. The appellant in the proceedings
under Section 138 Negotiable Instruments Act examined himself as CW-1;
whereas the respondent appeared as DW-1 besides examining DW-2
(Ramesh Chandra) and DW-3 (Ashok Kumar). The Trial Court by a
judgment dated 29.01.2011 held the respondent guilty for committing
offence under Section 138 Negotiable Instruments Act. Aggrieved by the
said orders, the respondent went in appeal and it resulted in setting aside of
the orders on conviction and sentence. Being dissatisfied, the appellant has
come in appeal.
3. In the complaint under Section 138 Negotiable Instruments Act,
the appellant claimed that in September, 2003 the respondent and his
associate Ramesh Chandra (since acquitted) had approached him for
acquiring certain gold ornaments worth around `4 lacs. The respondent had
issued two post-dated cheques No.408915 and 408916 dated 08.10.2003 as
'consideration' for the ornaments given by him (the complainant). A receipt
(Ex.CW-1/3) was executed. On presentation, the cheques were dishonoured.
The respondent failed to make the payment despite service of legal notice.
4. In the complaint, the complainant, however, did not disclose
any specific date as to when the respondent had approached him for
acquiring gold ornaments worth `4 lacs; what were its specifications. It was
not disclosed as to what was the total weight of the gold ornaments and what
was its valuation. It was also not clarified as to on what particular date the
gold ornaments were handed over by the appellant to the respondent. In the
complaint, the complainant also did not reveal if any time the respondent
had pledged ornaments with him and if so, what was its weight and
valuation and whether these were ever returned, and if so, when and for what
consideration.
5. During trial, the complainant (CW-1) while reiterating his
version in the examination-in-chief, admitted in the cross-examination that
the respondent had pledged some gold ornaments worth `5 lacs at that time,
the value of which was around `12 lacs at present. The complainant,
however, did not claim as to when the gold ornaments so pledged were
returned to the respondent. In the further cross-examination, the
complainant admitted that, in lieu of the ornaments, he had paid `4 lacs to
the respondent. He further stated that no writing was made regarding the
payment made by him to the respondent. Apparently, the appellant has not
presented true facts. It was not claimed that cheques in question were issued
by the respondent in the discharge of 'debt' or 'other liability'.
6. Admittedly, receipt (Ex.CW-1/3) was executed between the
parties. However, there is controversy as to the 'date' when it was so
executed; the word "Liya or Diya" mentioned in it are also disputed. The
complainant did not examine any attesting witness to corroborate his
version. Admittedly, the revenue stamp was affixed on the receipt
subsequently; there are certain alterations in receipt (Ex.CW-1/3). It further
records that the cheques in question were given to the complainant as
security ("Bator Amanat Diye"). The complainant alleged that these words
were incorporated subsequently by DW-2 (Ramesh Chandra) in connivance
of the respondent. This receipt records that ornaments worth `2.30 lacs and
`1.70 lac were given. It is, however, unclear whether the gold ornaments
were given by the complainant to the respondent or vice versa. In the
complaint, the complainant did not disclose if ornaments worth `2.30 lacs
and `1.70 lacs were given by him to the respondent.
7. The respondent examined DW-2 (Ramesh Chandra) and DW-3
(Ashok Kumar) attesting witnesses to the receipt (Ex.CW-1/3). They have
supported the respondent's version. It was specifically denied that the words
in Ex.CW-1/3 were manipulated or fraudulently inserted. At no stage, the
complainant lodged any complaint for fabrication of the receipt (Ex.CW-
1/3) though it continued to be in his possession. Contents of the receipt
can't be permitted to be denied under Sections 91 and 92 of the Indian
Evidence Act.
8. It is amply clear from the evidence referred above that at the
time of issuance of the cheques there was no outstanding liability on the
respondent's part. The complainant has not established if any jewellery
purportedly pledged by the respondent with him was ever returned to him.
The appellant cannot be permitted to enjoy the alleged pledged jewellery as
well as to ask for cheque amount given as security / entrustment.
9. In the light of above discussion, impugned judgment suffers
from no illegality.
10. The appeal lacks in merits and is dismissed.
11. Trial Court record be sent back forthwith with the copy of the
order.
(S.P.GARG)
JUDGE
OCTOBER 05, 2016 / tr
