Anjali Kukar v. M.M Lal Chhabra
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1.
That you had engaged my client as a counsel to apply for anticipatory bail for you, your younger son, your wife and your elder son Mr. Manish Chhabra and she filed and appeared on your behalf in the court of Sh. B.S. Baswana, Addl. Sessions Judge, Chandigarh.
2.
That in the bail application filed on your, your wife and younger son's behalf orders were passed for giving a week's notice before arresting any one of you and the application filed on behalf of your son Manish Chhabra was dismissed. 3.
That 'thereafter', you had given power of attorney to my client to file bail applications in the Punjab and Haryana High Court for the purpose of anticipatory bail as well as quashing of the FIR.
4.
That for that purpose, you had issued a cheque for Rs.44,000// bearing No.350164, dated 17.09.2003 drawn on account No. 0601000044784 SB A/c drawn on HDFC Bank Ltd. Ground Floor, Maneck Ji Wadia Building (Kala Patru Haritage), Nanik Motwani Marg, Fort, Mumbai/400023, Maharashtra.
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There is a reference to some anticipatory bail applications filed by my family members and me whereas no such authenticated copy of anticipatory bail applications has been made available to us. Please send me a copy thereof urgently, duly authenticate. 7.
There is reference to some orders passed by Sh. B.S. Baswana, Addl. Sessions Judge, Chandigarh regarding anticipatory bail applications allegedly made by me or my other family members, but no copy of such orders has been made available to us. Please supply me a certified copy of all the orders passed by the Addl. Sessions Judge, Chandigarh, urgently. 8.
There is also a reference to some orders passed by the Addl. Sessions Judge, Chandigarh regarding dismissal of petition of my son Manish Chhabra but no such orders was made available to us. A copy thereof dully certified may please be made available to me.
9.
A xerox copy of the power of attorney allegedly signed me or by and of my family members for filing of petitions in Punjab & Haryana High Court, Chandigarh may please be supplied to me. 11.
The break up of the amount of Rs.44,000// as to what it represents has not been given in the legal notice nor any schedule of charges of the advocates enclosed with the legal notice. How this fantastic sum has been arrived at needs to be elaborated in detail and what is the relevance of that amount to the case filed in the District Court, Chandigarh, may please be indicated and schedule of charges also sent to me.
12.
I had given Rs.13000/+Rs. 4,500/ +Rs.700/+Rs.450//(Total
Rs.18,650//) to her in cash on or about 16.09.2003 while I was at Chandigarh. There is no mention of the amount already paid to her in the legal notice served on me. Please confirm the same. 13.
Please confirm if your client has also possession of two case files inclusive of original correspondence/documentary evidences, in respect of the divorce case filed by my son Mr. Manish Chhabra. If so, please return the same to me immediately as my son has to defend his case in the Court of law and in the absence of these documents, his defense is being vitiated.
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. / Until the contrary is proved, the following presumptions shall be made: (a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.
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. / Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either
because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount 10 arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless/ (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.
(b)the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation. / For the purposes of this section, `debt or other liability' means a legally enforceable debt or other liability. #6
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./ It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt, or other liability.
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"70. In light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when: i) The trial court's conclusion with regard to the facts is palpably wrong;
ii) The trial court's decision was based on an erroneous view of law;
iii) The trial court's judgment is likely to result in "grave miscarriage of justice";
iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
v) The trial court's judgment was manifestly unjust and unreasonable;
vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc.
vii) This list is intended to be illustrative, not exhaustive."
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"Now the only question which needs to be contemplated is whether the cheque in question was issued in discharge of legal liability as envisaged under Section 138 of Negotiable Instrument Act or not. Here also it becomes pertinent to mention that there are two version of the complainant on record. As per first version, the cheque in question was issued for filing anticipatory bail applications and quashing petition in the Hon'ble High Court. But during the course of
leading evidence, the complainant improved her version and have stated that the cheque in question was issued as lump sum payment for filing anticipatory bail applications as well as quashing petition before the Sessions Court, Chandigarh as well as before the Hon'ble High Court, Chandigarh. But the second version of the complaint stands defeated in the light of legal notice Ex.C4 issued by the complainant through her Advocate which clearly stated that the said cheque was issued for filing anticipatory bail applications as well as for quashing petition before the Hon'ble High Court therefore in the light of inconsistency in the evidence of the complainant seems to be an after thought and is not acceptable being contrary to her own documents."
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< @after looking at the fate of the bail applications he had decided not to engage the complainant for the High CourtA
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25 (I). She did not oppose the sudden appearance of the advocate Shri Pardeep Bedi from the girl's (complainant therein) side, for contesting the anticipatory bail case. He had no locus standi in the matter as it was case of "State Vs. Manish Chhabra and Others", and nobody from the girl's (complainant therein) side could appear and oppose the application for anticipatory bail; it was only the Public Prosecutor who could be heard in the matter by the Hon'ble Court. The complainant rather emphatically countered the deponent by saying that she cannot oppose him because in similar cases, she herself had been appearing in courts on behalf of girls.
25 (ii).
She had very clearly exhibited a very sharp internal conflict in her mind and diffident attitude to fight his case in the District & Sessions Court, Chandigarh. 25 (iii).
Being sympathetic to the girl's side and she herself being a divorcee, she did not have the courage and conviction to fight the case of the deponent's son in the Punjab & Haryana High Court, Chandgiarh.
KKKKKKKKKKKKKKKKKKKKKKKK 37.
That deponent had met the complainant for the first time on 14.09.2003 with regard to the anticipatory bail case and thereafter, he never met the complainant after
17.09.2003 at Chandigarh except the chance meeting on 20.12.2003 in the Punjab & Haryana High Court, Chandigarh when the complainant had a tiff with him. The deponent never exchanged any correspondence also with her by post or otherwise after 17.09.2003, that is, the day he finally parted company with her at Chandigarh. 38.
That here it may be mentioned that when the deponent again fell short of money on 17.09.2003, because of heavy payments extracted by the complainant from him, he decided to withdraw some cash through the "Demand Draft Purchase" facility from the local office of the Reserve Bank of India. Therefore, he took out cheque No.350164, dated and signed it in the forenoon of 17.09.2003 and in the meanwhile contemplating as to how much amount should be drawn and who should go to the RBI i.e. the deponent or his son. At that particular time, the anticipatory bail case of the son of the deponent was also being heard in the District & Sessions Court, Chandigarh.
Seeing the situation, deponent's son Manish Chhabra interjected and told him that he had some cash with him which would serve the purpose of backward journeys from Chandigarh when the deponent and his son already had preserved return tickets and that at that crucial time they should not run to banks for withdrawing money. (Demand Draft Purchase facility is allowed to Officers of the Reserve Bank of India for withdrawing cash by surrender of self drawn cheque at any station where the office of RBI is located).
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