RAKESH KUMAR TIWARI vs STATE OF NCT OF DELHI & ANR.

$~82
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 15th May, 2024
+ CRL.M.C. 3912/2024
RAKESH KUMAR TIWARI ….. Petitioner
Through: Mr. Yogesh Kumar and Ms. Kirti Aggarwal, Advocates.

versus

STATE OF NCT OF DELHI & ANR. ….. Respondents
Through: Mr. Digam Singh Dagar, APP for State.

CORAM:
HON’BLE MS. JUSTICE JYOTI SINGH
JUDGEMENT

JYOTI SINGH, J. (ORAL)

CRL.M.A. 14943/2024 (Exemption)
1. Allowed, subject to all just exceptions.
2. Application stands disposed of.
CRL.M.C. 3912/2024 and CRL.M.A. 14942/2024
3. This petition has been filed on behalf of the Petitioner under Section 482 Cr.P.C. assailing order dated 10.04.2024 in CA No.297/2023 titled “Rakesh Kumar Tiwari v. Aparna Sharma & Anr.”, passed by learned ASJ/Special Judge/NDPS, New Delhi, whereby the application filed by the Petitioner under Sections 91/391 Cr.P.C. has been dismissed.
4. Issue notice.
5. Learned APP accepts notice on behalf of the State.
6. Present case relates to a monetary transaction between the Petitioner and Respondent No. 2/complainant pursuant to which a cheque was allegedly issued by the Petitioner, which on presentation by the complainant was dishonoured. Respondent No. 2 filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) before the learned MM (NI Act), Patiala House Courts being Complaint Case No. 265/2022 on 05.01.2022. By judgment dated 28.08.2023, Petitioner was convicted for offence under Section 138 of the NI Act and by order on sentence dated 30.09.2023, he was sentenced to pay fine equivalent to Rs.9 lacs, as compensation to the complainant under Section 357(1)(b) Cr.P.C. within 30 days of the order, failing which he was liable to undergo SI for 3 months.
7. Aggrieved by the judgment of conviction and order on sentence, Petitioner filed an appeal bearing no. CA/297/2023 before the learned Sessions Judge and vide order dated 14.10.2023, operation of the judgment and the sentence was stayed. Notice was issued to Respondent No. 2. On 21.10.2023, Respondent No. 2 filed criminal revision No. 696/2023 for enhancing the compensation amount to double the cheque amount, which is pending.
8. Perusal of the judgment dated 28.08.2023 shows that one of the grounds for convicting the Petitioner was that he had himself filed a declaration-cum-receipt-cum-agreement dated 02.04.2021 in which he had acknowledged a debt of Rs.8 lacs towards the complainant. This finding was premised on admission of the Petitioner of his signatures and thumb impression on the receipt Ex.CW-1/D1 and of the written contents of the document, which are in his handwriting. Trial Court disbelieved the only defence taken by the Petitioner that the contents of the document were dictated to him by Mukul Gupta, Advocate on the ground that it is inconceivable that an educated person working as Assistant Section Officer in a Government Department would execute any document and sign on it as well as affix his thumb impressions at the instance of a third person whom he had known barely for a few days. As per the Trial Court, all documents pertaining to the civil suit including this receipt were admitted by the Petitioner in his statement under Section 294 Cr.P.C. In his statement before the Civil Court, Petitioner had undertaken to pay the settlement amount of Rs.8 lacs to the complainant, within 30 days of withdrawal of the suit.
9. After the Petitioner was convicted and sentenced and during the appeal proceedings, Petitioner filed an application under Sections 91/391 Cr.P.C. to bring on record documents indicating the details of his travel out of Delhi to set up a plea that on the date of execution of the alleged acknowledgement receipt dated 02.04.2021, Petitioner was not in Delhi. By the impugned order, learned Additional Sessions Judge dismissed the application on the ground that no such defence was taken by the Petitioner in his evidence as DW-1 and not even a question or suggestion was put to the complainant that the document was executed in his absence.
10. Learned counsel for the Petitioner submits that the documents sought to be placed on record are crucial and material to his defence. Heavy reliance is placed by learned ASJ on the acknowledgement-cum-receipt dated 02.04.2021 to come to a conclusion that Petitioner admitted his liability to pay Rs.8 lacs to the complainant. However, his travel itinerary would indicate that on the said date, Petitioner was in Mumbai and could not have executed and/or signed on the receipt dated 02.04.2021. Complainant has played a fraud not only on the Petitioner but also on the Court by producing forged and fabricated receipt. Section 391 Cr.P.C. confers wide discretion in the Appellate Court to obtain additional evidence to ensure that the truth comes out and justice is done. It is true that no direct question was put to the complainant during cross-examination on the presence of the Petitioner in Mumbai on 02.04.2021 but a holistic reading of the cross-examination would show that a suggestion was put with regard to falsifying and fabrication of documents.
11. Heard learned counsel for the Petitioner.
12. There can be no debate on the proposition of law that Section 391 Cr.P.C. gives wide and ample powers to the Appellate Court, if it thinks additional evidence to be necessary, to take such evidence itself or direct the Magistrate to take such evidence, for reasons to be stated in writing. In the present case, as rightly pointed out by learned counsel for the Petitioner, one of the reasons that has weighed with the Trial Court to convict the Petitioner is the acknowledgement of his liability to pay Rs.8 lacs to the complainant. This conclusion is based on a declaration-cum-receipt-cum-agreement dated 02.04.2021, Ex.CW-1/D1. Trial Court has observed that Petitioner admitted his signatures and thumb impression on the receipt as well as the contents of the document, which are in his handwriting. At no point during defence evidence or even during cross-examination of the complainant, Petitioner took a stand that when the receipt was executed on 02.04.2021, he was in Mumbai. In fact, the only defence taken by the Petitioner was that he had signed on the contents which were dictated to him by one Mukul Gupta, Advocate. Trial Court has additionally noted that even in the civil suit pending between the parties, Petitioner acknowledged his liability and undertook to pay the settlement amount of Rs.8 lacs to the complainant within 30 days from the date of withdrawal of the civil suit. This fact was admitted by the Petitioner in his statement under Section 294 Cr.P.C. The Trial Court laboured hard to examine several documents placed on record by the Defendant in the form of copies of loan documents, copy of the plaint in the civil suit, statement of the Petitioner given before the Civil Court, copy of the police complaint dated 15.05.2022 given by the Petitioner, after receiving notice of the execution petition etc. From a holistic examination of the documents, Trial Court concluded that the receipt was a genuine document and duly executed and signed by the Petitioner. The learned Court, in my opinion, rightly dismissed the application on the ground that Petitioner had never raised the defence that the receipt was executed in his absence as on the said date he was in Mumbai.
13. Even today, on a repeated questioning, learned counsel for the Petitioner is unable to place any document before this Court to show that he was in Mumbai on 02.04.2021 and the only answer forthcoming is that no travel documents are available. In my view, the impugned order does not deserve interference for the reason that Petitioner has never taken a defence throughout the trial that the receipt dated 02.04.2021 was not executed or signed by him and the only defence was that he had signed on the contents dictated by Mukul Gupta, Advocate. Once there was no denial on the execution and the signing of the receipt, Petitioner cannot be permitted to take a contradictory defence at this stage that he had never executed and signed the receipt as he was in Mumbai on the said date. Not a suggestion was put to the complainant during trial that the receipt was executed in his absence, as this defence was always available to the Petitioner and perhaps was the best alibi that could have been set.
14. In this view of the matter, the petition has no merit and is accordingly dismissed. Pending application also stands disposed of.

JYOTI SINGH, J
MAY 15, 2024
B.S. Rohella/shivam

CRL.M.C. 3912/2024 Page 6 of 6