Delhi District Court
Sh Adesh Tyagi vs Smt Pooja Kaur on 2 September, 2024
IN THE COURT OF SHRI PRANJAL ANEJA,
SPECIAL JUDGE (NDPS)-02, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
Criminal Appeal No. 29/2023
CNR No. DLCT01-001941-2023
Sh. Adesh Tyagi
S/o Late Sh. Chartar Singh
R/o G-6, Police Staff Quarter
Double Storey, Karol Bagh,
New Delhi. ....Appellant
Versus
Smt. Pooja Kaur,
W/o Late Sh. Inder Singh
R/o G-4, PS Karol Bagh,
Police Staff Quarters,
New Delhi-110005.
....Respondent
Preferred on : 06.02.2023
Reserved on : 13.08.2024
Pronounced on : 02.09.2024
JUDGMENT
1. The present appeal has been preferred by the appellant- accused under section 374 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') against the impugned judgment dated 22.12.2022 and order on sentence dated 07.01.2023, passed by the Court of Ms. Neha Goel, Ld. Metropolitan Magistrate (NI Act-02), Central District, Tis Hazari Courts, Delhi, in Complaint Case No. 7646/2017 titled as "Smt. Pooja Kaur Vs. Shri Adesh Tyagi". Vide judgment of conviction dated 22.12.2022, the appellant was CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 1 of 39 convicted for the offence under Section 138 of the Negotiable Instruments Act, 1881 (herein after referred to in short 'NI Act') and vide order on sentence dated 07.01.2023, he was sentenced to undergo simple imprisonment for three months and directed to pay a sum Rs. 26,00,000/- (amount of cheques in question) with simple interest @ 9% p.a. on the said amount from the date of filing of complaint case (i.e. 02.06.2017) till the date of judgment (i.e. 22.12.2022) within 30 days from date of sentencing (i.e. 07.01.2023) and in default of payment of the amount, he shall undergo simple imprisonment of 03 months. The entire amount of fine was directed to be paid by the complainant as compensation under Section 357(3) of Cr.P.C. It was also clarified that the compensation amount, if not paid in time, shall be recoverable under Section 431 read with Section 421 Cr.P.C.
Brief Facts :
2. The case of the complainant, in brief, is that the accused took a loan of Rs. 25 lacs in two parcels from the complainant's husband namely Shri Inderjeet Singh in May, 2014 and had paid Rs. 50,000/- per month towards interest as agreed. That after the death of complainant's husband, accused started paying interest to the complainant being the widow of Shri Inderjeet Singh.
Accused further assured to repay the principal amount in favour of the complainant. That after the death of the complainant's husband, the complainant made a request to the accused to refund the amount as the same was not secured and except two undertakings on stamp paper, there was no written document about the said loan. That in assurance, the accused issued 8 blank cheques duly signed by him. That the accused on much persuasions by the complaint, CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 2 of 39 had refunded 5 lakhs in October 2015 and since thereafter the principal amount had been reduced to Rs. 20 lacs. The accused was paying Rs. 50,000 towards interest which had been reduced to Rs. 40,000 i.e. 2% per month of the total outstanding amount. The said interest stood paid up to November 2015 and since thereafter neither the principal amount was paid nor the interest which was accrued thereupon. The accused tried to drag the complainant into false litigation. That in a meeting arranged in mid April, 2017 it was agreed that accused would pay a sum of Rs. 26 lacs though at that time total outstanding was Rs. 26,40,000/- including principal & interest. As agreed, except 2 cheques complainant returned all the cheques to the accused and after couple of days, accused returned 2 cheques to the complainant which were duly filled up as cheque numbers 461409 (Ex. CW 1/1) & 461410 (Ex. CW 1/2) both dated 25.04.2017 drawn on Axis Bank for Rs. 20 lacs and Rs. 6 lacs respectively, the first cheque being towards refund of principal and second one towards interest till March, 2017 with assurance of the cheques being honoured. But upon presentation of both the cheques in complainant's bank account with PNB, the said cheques got dishonoured with remarks "Drawers signature differs" vide Return Memos dated 04.05.2017 (Ex. CW 1/3 and Ex. CW 1/4). Complainant then sent legal notice on 08.05.2017 (Ex. CW 1/5) through registered post AD which was served on 13.05.2017. The accused did not pay any amount within the statutory period of 15 days. Complainant thus filed the present complaint u/s 138 NI Act. The speed post receipts are Ex. CW 1/6 and its AD card is Ex. CW 1/7. The Loan acknowledgments are Ex. CW 1/8, 1/9, & 1/10. Copy of notice regarding departmental CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 3 of 39 enquiry of accused alongwith copy of complainant's statement is E x. CW 1/11(colly).
Summoning & Trial
3. Accused was summoned and he appeared before the Ld. Trial Court which framed notice u/s 251 Cr. P.C., 1973. Accused pleaded not guilty and claimed trial. His plea of defence was recorded as under :
"I admit my signature on cheques in question (this statement has been made after going through the cheques in question). I did not receive any legal notice. One Mr. Umesh Kumar, know to me, was in need of money. He told me that he might be referred to someone involved in lending the money on interest. Complainant alongwith her family used to reside in my neighbourhood and complainant had shifted from there around one year ago. Her father-in-law is still residing there. I got arranged a loan amounting to Rs. 25 Lacs to Mr. Umesh Kumar through her father (I am not sure about his name but same might be Rajeev Kohli) probably in May, 2015. Mr. Umesh Kumar had promised to me to repay the amount and assured me that he will issue necessary cheques to this effect but no such cheques were ever issued to me. Also, he was not traceable thereafter, despite many efforts. Subsequently, he was traced and was taken to the house of complainant where again he promised to return the entire amount but requested for some time.
Thereafter, he could not be traced at all. In the same month of transaction with Mr. Umesh Kumar (wherein he was lent an amount of Rs.
25 Lacs), complainant alongwith her father and other relatives came to my house in my absence. I was busy in VIP arrangements (I am in Delhi Police) and could not have returned from there. I was called by my family members after quarrel (kaha suni) between them. I was informed that complainant and his relatives were demanding my cheques for the amount handed over to Mr. Umesh Kumar. I talked to many relatives of the complainant and they all CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 4 of 39 assured me to return my cheques as soon as cheques were received from Mr. Umesh Kumar by me and are handed over to them. On this, I asked my family members to give the cheques (including cheques in question) to the complainant. I am not sure as to how many cheques were given to the complainant.
Cheques were blank at that time, however, I am not sure as to whether same were bearing my signature or not. On going through the cheques today, the signatures thereupon appears to be mine. When Mr. Umesh Kumar was not traceable and no amount was received back from him. I started paying an amount of Rs.
50,000/- per month to the complainant. I also paid an amount of Rs. 5 Lacs to the complainant and thereafter, started paying Rs. 40,000/- per month but still, complainant made complaints against me to the department. Also, present case was filed after getting dishonored the cheques in question."
4. Complainant then led her evidence as CW1, she was cross examined. CW2 Ahlmad from another Court brought the summoned record of case file titled as 'Pooja Kaur Vs. Adesh Tyagi' bearing CC No. 2030/17 decreed on 27.02.2018. He was examined as CW2. Statement of the accused was then recorded u/s 313 r/w Section 281 Cr.P.C. as follows:
"I am innocent. I did not issue the cheque in question, same was taken by the complainant from my house in my absence which is in blank condition. I had not taken or given any money from the husband of complainant. Through me, father-in-law of the complainant namely Shri Kuldeep Singh advanced a loan to one Shri Umesh Kumar and for that reason, complainant has filed a false case against me. I had repaid the entire loan amount which was borrowed by Shri Umesh Kumar after selling my property. I do not want to say anything else."
5. Accused opted to lead defence evidence in which he got examined his daughter as DW1.
CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 5 of 39The judgment rendered by the Ld. Trial Court led to the conviction dated 22.12.2022 and order on sentence dated 07.01.2023 under Section 138 NI Act.
Grounds of Appeal :
6. Against the judgment of conviction and order on sentence, the accused has filed the present appeal raising the following grounds of appeal, broadly :
(i). It has been averred that Ld. Trial Court has failed to take into consideration the fact that the respondent could not prove existence of any legally enforceable debt or liability against the convict/appellant.
(ii). That the impugned judgment and order on sentence passed by Ld. MM is contrary to Law and the facts established by the convict/appellant and the decision is wholly based on the presumptions and assumptions made by Ld. MM in favour of complainant/respondent and against the appellant/convict.
(iii). That the decision of the Ld. Trial Court is based on surmises, illegalities and lack of application of the recent judicial pronouncements.
(iv). That Ld. MM has failed to consider that the convict/appellant did not receive any legal notice.
(v). That Ld. MM has further failed to consider that one Mr. Umesh Kumar known to convict/appellant was in need of money, who told the convict/appellant that he might be referred to someone involved in lending the money on interest.CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 6 of 39
(vi). That Mr. Kuldeep Singh (father-in-law of the complainant) advanced a loan to Umesh Kumar and the said amount has already been paid.
(vii). That the complainant/respondent failed to prove documents Ex. CW-1/8 to CW-1/11. No amount was given by the complainant to the appellant.
(viii). That Ld. MM has committed serious error in presuming the existence of legal liability of appellant/convict towards the respondent/complainant without any valid documentary proof and respondent has completely failed to prove the liability against the appellant of Rs. 26 Lacs.
(ix). That Ld. Trial Court has not considered the facts and circumstances of the case and wrongly convicted the appellant and that impugned judgment & order on sentence suffer from many illegalities and infirmities.
(x). That the CW-1 has stated in her cross-examination that "It is correct that I never paid any amount to the accused."
(xi). That the appellant has never been involved in any criminal case and has clean antecedents.
Submissions of the parties:
7. Ld. Counsel for the appellant/accused argued that the case of the complainant is false and there is no liability of the appellant/accused. Ld. Counsel argued that the original cheque was filed under Order XXXVII CPC suit and Ahlmad from that Court was called to prove the cheque and other documents including the returning memos. Ld. Counsel strongly contended that while the cheque and other documents as filed in the present CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 7 of 39 complaint, are true/certified copies, the returning memos Ex. CW-
1/3 and Ex. CW-1/4 are 'copy to copy' implying that there is no original of those returning memos in the said file of Order XXXVII CPC which was brought by Ahlmad (CW-2). Ld. Counsel argued that there were only photocopies of these returning memos on the said file of Order XXXVII CPC and originals have never been filed or shown in the present case and thus have not been proved. Therefore, the ingredient of Section 138 NI Act is not fulfilled. For this reason, Ld. Counsel stated that the judgment of conviction has been wrongly passed.
8. Ld. Counsel for appellant/accused further argued that the AD Card (Ex. CW-1/7) does not have the signature of accused while it contains signature of some 'Lalita Tyagi'. Thus, the Ld. Counsel denied the receiving upon the AD Card and also the receiving of legal notice.
9. Ld. Counsel for appellant/accused also challenged the locus/authority of the complainant in filing the present complaint and also contended that she did not produce any succession certificate despite being asked during her cross-examination (as CW-1) and therefore, adverse inference be drawn against her. Ld. Counsel argued that as per the case of the complainant, appellant/accused owed liability only against the husband of complainant and the complainant, after the death of her husband, can not prosecute the appellant/accused without any authority or succession certificate as there are other class 1 legal heirs, such as, mother of the husband of complainant. It was also argued that complainant/respondent has disputes with her parents-in-law and she has even remarried.
CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 8 of 3910. On the other hand, Learned Counsel for complainant/respondent submitted that there are different versions of the accused in his plea of defence recorded upon framing of notice U/s 251 Cr.P.C and in his statement recorded U/s 313 read with Section 281 Cr.P.C. Ld. Counsel submitted that the accused/appellant has taken contradictory stands vis-a-vis his plea of defence and cross-examination of complainant/CW-1. Ld. Counsel argued that the appellant/accused has failed to discharge his onus of rebutting the presumptions U/s 118 (a) and Section 139 NI Act and the case of the complainant duly stands proved warranting conviction of the accused. It was also argued that there is a civil decree passed against the accused under Order XXXVII CPC as his leave to defend was dismissed. The said decree has not been challenged yet and therefore, the civil liability stands against the accused and his salary has been attached and part salary is released to the complainant. Ld. Counsel further argued that the presumption under the General Clauses Act regarding service of legal notice has not been rebutted. He also submitted that the receiving on the AD Card shows the surname 'Tyagi' which reflects the the recipient is the family member of accused. Regarding return memos, Ld. Counsel argued that there is no requirement for the same in original for the purpose of cognizance and further more, CW-2 has not been cross-examined to the effect that documents are not in original and therefore, in this manner, the accused has admitted the return memos. As to locus of complainant in filing the present complaint, the Ld. Counsel argued that it is not a case where cheques were in the name of complainant's husband and the complainant has deposited them in the bank. It is a case where accused admitted and acknowledged CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 9 of 39 the liability and issued cheques in the name of complainant. Lastly, the Ld. Counsel submitted that the accused/appellant did not appear in the witness box and withheld himself from deposing and therefore, adverse inference be drawn against him as per Section 114 (g) Indian Evidence Act.
Law governing the culpability of Section 138 Negotiable Instruments Act, 1881 Legislative provisions
11. Section 138 of the NI Act provides as under:-
"138. Dishonour of cheque for insufficiency, etc., of funds in the account. - 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 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 provisions of this Act, be punished with imprisonment for a term which may be extended 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 CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 10 of 39 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."
12. A bare perusal of Section 138 of the NI Act would show that there are three fundamental requirements for applicability of this provision which are: (1) that there should be legally recoverable enforceable debt and (2) that the drawer issued cheque to discharge part or whole of the debt and (3) that the cheque issued had been returned due to insufficiency of funds in the account of drawer.
Alongside, it would also be expedient to refer to the legal presumptions which go hand-in-hand with Section 138 that are laid down under Section 118 (a) and Section 139 of the NI Act reproduced as under:-
Section 118 (a) NI Act reads as under :
Presumptions as to Negotiable Instruments - Until the contrary is proved, the following presumption 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;
:::: :::: ::::CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 11 of 39
Section 139 NI Act reads as under :
Presumption in favour of holder It shall be presumed, unless contrary is proved, that the holder of a cheque received the cheque of the nature referred in section 138 for the discharge, in whole or in part, of any debt or other liability.
Relevant Judicial pronouncements
13. It has been held by the Hon'ble Supreme Court in Rangappa vs. Sri Mohan, (2010) 11 SCC 441 that :
".... the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability."
14. In Rajesh Jain vs. Ajay Singh, SLP (Crl.) No. 12802 of 2022 decided on 09.10.2023, the Hon'ble Apex Court has observed as under:-
34. The NI Act provides for two presumptions:
Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that 'unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability.' It will be seen that the 'presumed fact' directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138."
35. Section 139 of the NI Act, which takes the form of a 'shall presume' clause is illustrative of a presumption of law. Because Section 139 requires that the Court 'shall presume' the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 12 of 39 contrary as is clear from the use of the phrase 'unless the contrary is proved.'
36. The Court will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that cheque was issued/executed in his favour by the drawer.
The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel vs. Amin Chand] [(1999) 3 SCC 35].
37. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that 'a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar (2019) 4 SCC 197].
Therefore, mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption.
38. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.
39. John Henry Wigmore on Evidence states as follows:
"The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 13 of 39 presumption 'disappears as a rule of law and the case is in the Jury's hands free from any rule."
40. The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non-
existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of 'preponderance of probabilities', similar to a defendant in a civil proceeding. [Rangappa vs. Mohan (AIR 2010 SC 1898)].
41. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words 'until the contrary is proved' occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513].
42. In other words, the accused is left with two options. The first option-of proving that the debt/liability does not exist-is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non-existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused's case may be even fifty one to forty nine and arising out of the entire circumstances of the case, which includes: the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his 313 statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 14 of 39 justifying a finding that there was 'no debt/liability'. [Kumar Exports and Sharma Carpets, (2009) 2 SCC 513.
43. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact.
44. The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. In Kundanlal's case- (supra) when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non-existence of consideration.
Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Section 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well.
45.Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit- evidence, the burden shifts to the complainant and the presumption 'disappears' and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 15 of 39 evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa vs. Mudibasappa, AIR 2019 SC 1983; See also, Rangappa vs. Sri Mohan (2010) 11 SCC 441].
15. It has been held in Hiten P Dalal vs. Bratindranath Banerjee , (2001) 6 SCC 16 that a mere plausible explanation given by the accused is not enough to rebut the presumption and the accused has to necessarily disprove the prosecution case by leading cogent evidence that he had no debt or liability to issue the said cheque.
16. In Rangappa vs. Sri Mohan (supra), the Hon'ble Supreme Court has observed as under: -
Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective to improve the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 16 of 39 doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.
17. In view of the aforesaid proposition of law laid down by the Hon'ble Apex Court, it has to be seen as to whether the respondent/complainant has been able to prove that there was legally enforceable debt or liability for which the cheques in question were issued by the appellant/accused or that the appellant/accused has been able to rebut the presumption and prove that the cheques in question had not been issued in discharge of legally enforceable debt or liability. The complainant in a case of Section 138 NI Act, in order to succeed, has to satisfy the legal ingredients of this provision viz. (1) that a person has drawn a cheque, on his bank account for payment of any amount to another person from that account for the discharge, in whole or in part, of any legally enforceable debt or other liability (2) presentment of that cheque to the bank within time (3) cheque returned by drawee bank unpaid due to insufficient balance or exceeding arrangement (4) payee makes a demand notice in writing to the drawer within 30 days of receipt of information from the bank as to dishonour of the cheque (5) drawer fails to make said payment to payee within 15 days of receipt of that legal notice.
18. As such, once the issuance of the cheque is admitted or proved, the court is duty bound to raise a presumption that the dishonoured cheque placed before it was indeed issued in discharge of a legally enforceable debt or liability of the amount CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 17 of 39 mentioned therein. Of course, the said presumption is rebuttable one and it is for the accused to prove that the cheque in question had not been issued in discharge of a legally enforceable debt or liability.
Analysis and Conclusion
19. It is a cardinal principle of criminal jurisprudence that it is the burden of the prosecution to prove the guilt of the accused beyond reasonable doubt, however the statutory presumptions wherever are available to the accused create an exception to this cardinal principle by shifting the burden of proof to the opposite party. Among the notable presumptions available under the scheme of the NI Act, two are available under Sections 118 (a) and 139 of the Act, the contours of which have been cited and discussed in the above mentioned judicial pronouncements.
20. In the instant case, the appellant did not dispute his signature on the cheques in question which is evident from his plea of defence, the relevant portion of which reads as:
"I admit my signature on cheques in question (this statement has been made after going through the cheques in question).
:::: :::: ::::
:::: :::: ::::
On this, I asked my family members to give the cheques (including cheques in question) to the complainant. I am not sure as to how many cheques were given to the complainant. Cheques were blank at that time, however, I am not sure as to whether same were bearing my signature or not. On going through the cheques today, the signatures thereupon appears to be mine.
:::: :::: : : : :"CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 18 of 39
The aforesaid plea of defence reveals that not only the signature on the cheques but also their handing over to the complainant have been admitted by the accused/appellant. Therefore, presumption u/s 139 NI Act comes into play. Once the signatures of the appellant on the said cheques are admitted/established, 'reverse onus' clauses under Section 118 and 139 NI Act become operative.
21. In Kalamani Tex and Another vs. P. Balasubramanian, (2021) 5 SCC 283, Hon'ble Supreme Court of India held as under:
"13.....The statute mandates that once the signature(s) of an accused on the cheque/ negotiable instrument are established, then these "reverse onus" clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him....."
22. It is further settled law that the appellant must raise a 'probable defence' and the standard of proof is 'preponderance of probabilities'. The appellant can lead direct evidence or rely upon evidence adduced by the complainant to show that consideration or debt did not exist or non-existence of consideration or debt is probable.
23. In Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513, Hon'ble Supreme Court of India held as under:
"20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non- existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 19 of 39 reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist....."
24. In nutshell, the case built-up by the appellant/accused in his plea of defence is that one Umesh Kumar, known to the appellant/accused, was in need of money and the appellant/accused got arranged a loan amount of Rs. 25 lacs to said Umesh Kumar through the father-in-law of the complainant/respondent but since Umesh Kumar was not traceable, the appellant/accused had to give some cheques (including the cheques in question) to the complainant/respondent. The appellant/accused goes on further in his defence plea to state that as Umesh Kumar was not traceable, he started paying Rs. 50,000/- per month to the complainant/respondent and also paid her an amount of Rs. 5 lacs and thereafter, started paying Rs. 40,000/- per month.
CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 20 of 3925. Here, it would be apt to refer to the cross-examination of complainant/respondent who appeared as CW1. It is noteworthy that the aforesaid defence has not been put to CW1 during her cross-examination. Relevant excerpt from the testimony of CW1 is reproduced as under:
"It is correct that I never paid any amount to the accused. I am not aware whether my name was written by accused on the cheques. My husband got expired on 10.12.2014. It is wrong to suggest that accused did not pay any amount to me. Vol. After the death of my husband accused used to pay interest towards the principle amount to me till November 2015. I have not filed any receipt / document qua the payment of interest. Vol. He used to pay in cash."
26. Whatever has been deposed by CW1 in this portion of cross-examination is her admitted case itself. It is not the case of CW1 that she paid any amount to the appellant/accused. As per her complaint u/s 138 NI Act and affidavit-in-evidence Ex. CW1/A, the appellant/accused had taken Rs. 25 lacs from her husband Sh. Inderjeet Singh, after whose death, appellant/accused started paying interest to her being the widow. The testimony of CW1 that "It is wrong to suggest that accused did not pay any amount to me. Vol. After the death of my husband accused used to pay interest towards the principal amount to me till November 2015" rather destroys the defence of the appellant/accused as in his plea of defence he had stated that he started paying Rs. 50,000/- per month to the complainant/respondent and also paid her an amount of Rs. 5 lacs and thereafter, started paying Rs. 40,000/- per month. In his statement u/s 313 r/w Section 281 Cr.P.C. the appellant/accused went to the extent of stating that he had repaid the entire loan amount which was borrowed by Umesh Kumar after selling his CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 21 of 39 property. In this regard, firstly, it is noted that while appellant/accused in his defence plea stated to have paid Rs. 5 lacs to the complainant, he has contradicted this version by stating in his Section 313 statement that he has repaid the entire loan. Secondly, no evidence with respect to the alleged sale of his property has been brought on record by the appellant/accused.
27. Furthermore, it is noted that immediately after denying this negative suggestion, CW1 makes a voluntary statement that after her husband's death, the appellant/accused used to pay her interest on principal till November 2015, thus fortifying her case. Here, no suggestion contrary to this voluntary statement has been put to CW1 on behalf of appellant/accused. The appellant/accused by putting this negative suggestion attempted to displace the complainant's case, however forgetting in this zeal that he is destroying his own defence plea version. In this manner, by putting this negative suggestion to which CW1 denied, the appellant/accused contradicted his own plea of defence and caused a huge dent over his case. Further, no questions have been put to CW1 as to how much was/is the principal amount, what was/is the rate of interest, what was the periodicity or date(s) in which the appellant/accused used to pay interest in cash to the complainant/respondent. In the absence of these questions, merely asking CW1 about receipt qua payment of interest, the appellant/accused gained nothing in the cross-examination.
28. Likewise, appellant/accused also put some negative suggestions to CW1 during her cross-examination which are contradictory to his own plea of defence. Those instances are as follows.
CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 22 of 3929. In cross-examination of CW-1, she was asked :
"It is wrong to suggest that accused handed over blank cheques to my father-in-law Sh. Kuldeep Singh as my father-in-law is in the business of arranging loans from banks."
This has never been the case of appellant/accused that cheques were handed over to complainant's father-in-law as he was in the business of arranging loans from banks. As per his plea of defence, the appellant/accused had given the cheques to the complainant for the loan given to Umesh Kumar since he was not traceable. The fact clothed in this suggestion has thus emerged for the first time and has not even been carried thereafter since in his examination u/s 313 r/w Section 281 Cr.P.C. 1973, the appellant/accused again reverted back to his defence plea by stating that the cheques in question were taken by the complainant from her house in his absence and that the loan was got advanced through him from the father-in-law of complainant to Umesh Kumar. Another plea of the appellant/accused is that the cheques handed were blank. As the signing of the cheques is admitted in the instant case, the authority of Bir Singh Vs. Mukesh Kumar [2019 (4) SCC 197] holds the ground on such pleas of blank signed cheques. It was held by the Hon'ble Supreme Court that if a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars and this in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. In the instant case, the defence plea discloses that the appellant/accused himself asked his family members to give the cheques in question to the CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 23 of 39 complainant. Therefore, the plea that the cheques were blank at that time would not yield anything to the appellant/accused in rebutting the legal presumptions u/s 118(a) and Section 139 NI Act.
30. In cross-examination of CW-1, she was asked :
"It is wrong to suggest that that I stole the cheques from the custody of my father-in-law."
Again, this suggestion given by appellant/accused also runs contrary to his plea of defence as per which the cheques were given to the complainant/respondent through his family members itself.
31. In cross-examination of CW-1, she was asked :
"It is wrong to suggest that my father-in-law wanted to return those cheques to accused as he could not arrange loan for accused."
Similarly, the above suggestion is also not the case of appellant/accused. There is nothing of this sort in either the defence plea or in the statement of appellant/accused recorded u/s 313 r/w Section 281 Cr.P.C.
32. Thus, the appellant/accused can be seen taking contrary stands like a moving pendulum with no evidence being filed to sustain either of his stand. Even if the story of the appellant/accused, that he gave the cheques in question to the complainant in lieu of the loan advanced by complainant's father- in-law to Umesh Kumar he being not traceable and that he has paid Rs. 5 lacs or the entire loan amount, as the case may be, is believed CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 24 of 39 for a moment, the same rather satisfies the legal ingredient of Section 138 NI Act in favour of the complainant to the effect that the cheques were issued in the discharge of any debt or other liability. The debt or other liability may be of the appellant/accused or someone else for which the appellant/accused comes forward to discharge. It is also to be noted that except for a bald statement u/s 313 r/w Section 281 Cr.P.C., nothing has been brought on record by the appellant/accused that he did repay the entire loan amount which was borrowed by Umesh Kumar after selling his property. The appellant/accused ought to have brought cogent & credible evidence to substantiate his stand, but to his utter failure nothing has been done in this regard. Appellant/accused did not opt to stand in the witness box to be his own witness u/s 315 Cr.P.C. in order to depose his stands taken in his plea of defence recorded upon framing of notice u/s 251 Cr.P.C. and statement recorded u/s 313 r/w Section 281 Cr.P.C. His best witness was the said Umesh Kumar but appellant/accused did not even call him as witness. No questions have been asked from CW1/Complainant in her cross- examination regarding the said Umesh Kumar. This story of the appellant/accused, that he gave the cheques in question in discharge of the loan of Umesh Kumar, is like an auto-immune disease killing the case of appellant/accused itself.
33. Now, coming to other plea of the appellant/accused challenging the locus of the complainant to file the present complaint, on which the Ld. Counsel for the appellant/accused laid much stress. The Ld. Counsel for the appellant/accused argued that since the loan was advanced by complainant's father-in-law, the complainant has no right to recover the amount. Ld. Counsel for the appellant/accused pointed out that complainant/CW1 in her CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 25 of 39 cross-examination admitted that her husband has expired while her father-in-law is alive and her husband has not executed any will and also that she has re-married. Ld. Counsel further contended that while complainant/CW1 admitted that she has applied for succession certificate which is pending before Ld. ADJ, Tis Hazari Courts, she did not produce any copy of succession petition or succession certificate in her favour, so adverse inference be drawn against her. Ld. Counsel also contended that complainant has disputes with her parents-in-law and she has no authority to file the case and to recover the amount advanced by her husband as the mother of her husband is also entitled being the legal-heir.
34. Per contra, Ld. Counsel for the respondent/complainant argued that it is not a case where cheques were in husband's name and his wife i.e. complainant has deposited them, while it is a case where appellant/accused admitted & acknowledged the liability and issued cheques in question to the complainant. Ld. Counsel submitted that the civil decree under Order 37 C.P.C., in which leave to defend of the appellant/accused was dismissed, has not been challenged yet and the civil liability stands and moreover the salary of the appellant/accused is attached and paid to the complainant/respondent. Ld. Counsel contended that for these reasons the questions of authority or succession do not arise.
35. I find force in the submissions of the Ld. Counsel for complainant/respondent for several reasons. Firstly, that the appellant/accused has since failed to rebut the presumptions of Sections 118(a) and Section 139 NI Act on the test of preponderance of probabilities, as already observed in the foregoing paras. Secondly and consequently, as evident, the CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 26 of 39 cheques in question stand in the name of complainant given to her by appellant/accused himself without any stipulation. Thirdly, as per the defence plea, the appellant/accused himself paid Rs. 5 lacs to the complainant and also started paying Rs. 50,000/- per month and later Rs. 40,000/- per month to the complainant and none else. Fourthly, the question of succession and authority cannot be decided in this criminal complaint as these are aspects of civil law and may be challenged in civil proceedings. It be here noted that the civil decree under Order 37 C.P.C. in favour of the complainant has not been challenged yet and the civil liability stands and also that the salary of the appellant/accused is attached and paid to the complainant/respondent. There was no argument in rebuttal on this point from the side of appellant/accused. Complainant's husband has already expired and cheques in question, given by the appellant/accused to the complainant, are admittedly in the name of complainant and therefore it cannot be expected from her to file any authority or any succession certificate in her favour in support of the present complaint u/s 138 NI Act. Moreover, the law governed by Section 138 NI Act does not also requires so. In the wake of the case made out in the complaint and the failure of the appellant/accused to rebut the legal presumptions u/s 118(a) and Section 139 NI Act, the appellant/accused is an extraneous person having no locus to make such a challenge as to authority or succession. This criminal complaint u/s 138 NI Act even otherwise does not decide upon the civil/succession rights qua any amount between the complainant and her parents-in-law and is strictly concerned with the negotiable instrument i.e. cheques in question and their dishonor with its consequent culpability as prescribed u/s 138 NI Act.
CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 27 of 3936. Even otherwise, the finding of the Ld. Trial Court under para 12.11 of its judgment dated 22.12.2022 is correct which is to the effect that the LRs of payee can maintain a prosecution against the drawer [relying upon Shankar Lal Vs. Sanyogita Devi, Crl. A. 485/2002 (SC)] and as a sequitur that any cheque issued by the drawer in favour of the LRs of the payee in discharge of the debt due to the deceased payee would certainly be a cheque issued in discharge of legally recoverable debt or other liability and not otherwise. Consequently, the ld. Trial Court has also correctly given the finding under para 12.12 of its judgment to the effect that Complainant being LR of her deceased husband would certainly have a locus to recover the outstanding debt on behalf of her deceased husband and therefore she has locus to file and prosecute the instant complaint.
37. Thus, for the foregoing reasons, the contentions raised by the appellant/accused as to locus/authority and succession seem to be merely to evade the liability of the penal provision of Section 138 NI Act and therefore have no force, and do not aid in rebutting the legal presumptions u/s 118(a) and Section 139 NI Act standing by the side of Complainant.
38. Now, coming to documents Ex. CW1/8, Ex. CW1/9 and Ex. CW1/10 which have been relied upon by the complainant. Ex. CW1/8 and Ex. CW1/9 are stated to be loan acknowledgments which are unsigned and Ex. CW1/10 is stated to be another acknowledgment which is signed. During cross-examination of complainant/CW1, she admitted that on these documents Ex. CW1/8, Ex. CW1/9 and Ex. CW1/10 there is no handwriting of the appellant/accused though there is signature of the CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 28 of 39 appellant/accused on Ex. CW1/10. Suggestion was put to CW1 that CW1/10 does not contain the signature of the appellant/accused to which CW1 denied. Complainant/CW1 volunteered to state that these 3 documents were written by appellant/accused's daughter Ms. Kanika Tyagi. Negative suggestion was put to CW1 on this voluntary statement, the same was denied. Said Ms. Kanika Tyagi appeared as witness DW1 from the side of her father i.e. appellant/accused and stated in her examination-in-chief that Ex. CW1/8 and Ex. CW1/9 are not in her handwriting. In her cross-examination, DW1 denied having knowledge about the transactions of the present case or of the civil suit for recovery filed by complainant against the appellant/accused and also that handwriting on Ex. CW1/8 and Ex. CW1/9 belong to her.
39. With respect to these documents Ex. CW1/8, Ex. CW1/9 and Ex. CW1/10 and the testimonies of CW1 and DW1 concerning them, it is observed that admittedly Ex. CW1/8 and Ex. CW1/9 are unsigned documents and DW1 has denied her handwriting on them. Thus, these two documents have not been proved by the complainant. As regards Ex. CW1/10, it is observed that the only narration stated about this document in the affidavit-in-evidence Ex. CW1/A of the complainant is that it is an acknowledgment dated 07.09.2015. This is a one page handwritten document with signatures of various persons including witnesses. The complaint u/s 138 NI Act in this case is absolutely silent about this document Ex. CW1/10 and nothing much has been averred in the affidavit-in- evidence Ex. CW1/A by the complainant with regard to this document except that its an 'acknowledgment' dated 07.09.2015. Merely filing a document does not prove the same unless CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 29 of 39 necessary details of the same is disclosed in the averments and testimony. By whom and under what circumstances this document Ex. CW1/10 was executed needs to be stated. There are also witnesses to this document but none has been examined. The appellant/accused has also denied his signature over this document. In these circumstances, this document Ex. CW1/10 cannot be said to be proved. However, this has no significance and causes no adverse effect over the case of complainant.
40. As regards document Ex. CW1/11, which is notice received from the office of MACT Cell as regards Departmental Inquiry of the appellant/accused alongwith his statement, the Ld. Trial Court has, under para 12.18 of its judgment dated 22.12.2022, observed that no cross-examination of complainant/CW1 has been done by the appellant/accused on this document and therefore it amounts to admission of the deposition of CW1 on this point in her affidavit-in-evidence. In light of the judicial pronouncements of Laxmi Bai Through LRs and Another Vs. Bhagwant Bua Through LRs and Others (2013 SCC OnLine SC 101) and Ravinder Singh Vs. State (NCT of Delhi) (2012 SCC OnLine Del 18690, as relied, the aforesaid finding of Ld. Trial Court under para 12.18 is correct.
41. Thus, the plea of defence coupled with statement recorded u/s 313 r/w Section 281 Cr.P.C. and material culled out in cross-examination of complainant/CW1, as discussed above, leave no doubt to conclude, as far as the above discussed aspect/stand regarding advancing loan is concerned, that the appellant/accused has failed to discharge his onus in rebutting the CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 30 of 39 presumptions of Sections 118(a) and Section 139 NI Act on the test of preponderance of probabilities.
42. The complainant in a case of Section 138 NI Act, in order to succeed, has to satisfy the legal ingredients of this provision viz. (1) that a person has drawn a cheque, on his bank account for payment of any amount to another person from that account for the discharge, in whole or in part, of any legally enforceable debt or other liability (2) presentment of that cheque to the bank within time (3) cheque returned by drawee bank unpaid due to insufficient balance or exceeding arrangement (4) payee makes a demand notice in writing to the drawer within 30 days of receipt of information from the bank as to dishonour of the cheque (5) drawer fails to make said payment to payee within 15 days of receipt of that legal notice.
43. Now, coming up on the ingredient of Section 138 NI Act with regard to presentment of cheque with the bank and its dishonour. It is observed that the complainant in the present case presented the cheques in question dated 25.04.2017 (Ex. CW1/1 & Ex. CW1/2) to her banker i.e. PNB within 3 months as the return memos Ex. CW1/3 & Ex. CW1/4 are dated 04.05.2017 with remarks "Drawers signature differs". The Ld. Counsel for the appellant/accused however challenged the return memos Ex. CW1/3 & Ex. CW1/4 during his arguments contending that these are 'copy to copy' and not certified copy unlike the cheques. Trial Court record reveals that Sh. Ajay Kerketta, JJA (Ahlmad from other Court) appeared as CW2 and brought summoned record of case file titled as 'Pooja Kaur Vs. Adesh Tyagi' bearing CC No. 2030/17 decreed on 27.02.2018 containing originals of the CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 31 of 39 documents i.e. cheques in question (Ex. CW 1/1 & Ex. CW1/2), return memos dated 04.05.2017 (CW1/3 & Ex. CW1/4), legal notice dated 08.05.2017 (Ex. CW1/5), postal receipts dated 08.05.2017 (Ex. CW1/6) and AD card (Ex. CW1/7). Ld. Counsel for the appellant/accused argued that the return memos dated 04.05.2017 (CW1/3 & Ex. CW1/4) have not been proved as they are 'copy to copy' as reflected from Trial Court record while the other documents are 'True Copy' implying they are certified copies. In this regard, it is observed that firstly, the factum of dishonour of the cheques in question is not denied. Secondly, no question has been asked from the Ahlmad CW2 who brought the record. At the time of recording of evidence or even during the trial, there is no challenge by the appellant/accused as to this aspect of the return memos. The appellant/accused ought to have raised objection with respect to the mode of proof of these return memos. Therefore, now at the final stage, this challenge is not sustainable. The finding of the Ld. Trial Court on this point under para 12.19 of it judgment dated 22.12.2022 is correct. Furthermore, as regards the reason "Drawers signature differs", the same is covered as a specie of dishonor of cheque. The ruling of Laxmi Dyechem Vs. State of Gujarat, (2012) 13 SCC 375 is an authority on this point in which it was held that that the two contingencies envisaged under Section 138 NI Act cannot be interpreted strictly or literally and the expression "amount of money standing to the credit of that account is insufficient" appearing in Section 138 NI Act is a genus and dishonour for reasons such as "account closed", "payment stopped", "referred to the drawer" are only species of that genus. Further held that just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 32 of 39 contingency referred to in Section 138 so also dishonour on the ground that the "signatures do not match" or that the "image is not found", which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 NI Act.
44. As to the ingredient w.r.t. serving legal demand notice, the Ld. Counsel for the appellant/accused argued that the legal notice Ex. CW1/5 is not served and that AD card Ex. CW1/6 does not have signature of the appellant/accused and it contains signature of some Lalita Tyagi.
45. The successive interpretation of Section 27 of General Clauses Act, 1887 read with Section 114 of the Indian Evidence Act has obviated the need of the complainant to adduce positive evidence regarding receipt of demand notice by the accused. It is now settled law that if the demand notice is properly and correctly addressed, there is presumption of service thereof. It is then for the accused to prove that he did not receive the demand notice and this cannot be accomplished by a mere denial. For this proposition, reliance is placed upon the pronouncements of the Hon'ble Supreme Court in C. C. Alavi Haji v. Mohammed & Anr., (2007) 6 SCC 555 (3 Judges bench) reiterated in Ajeet Seeds Ltd. Vs. K. Gopala Krishnaiah VI (2014) SLT 524. The reason for casting this evidentiary burden upon the complainant is to ensure that unscrupulous drawers are not given a wide berth to escape the rigor of law merely by manipulating the postal report at their end.
46. In his plea of defence, the appellant/accused denied receiving any legal notice. On facts, the Ld. Trial Court has correctly observed in the judgment dated 22.12.2022 that the CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 33 of 39 address mentioned on the legal demand notice is the same as furnished by the appellant/accused on the bail bonds. Even the memo of parties in the Trial Court record also mentions the same address upon which summons in the case was served upon the appellant/accused and this address also finds mentioned in the memo of parties of this appeal. No where in the cross-examination of complainant/CW-1, it is suggested that the address mentioned on the legal notice is incorrect or does not belong to the appellant/accused. Section 27 of General Clauses Act, emphasizes the requirement that notice must be "properly" addressed. The word "properly" obviously envisages notice being sent to correct present address of noticee. The address over the legal notice and postal receipts have not been challenged and therefore the same can well be said to be properly addressed. Regarding the signature of some Lalita Tyagi on the AD card Ex. CW1/7, it is observed that the same name of 'Lalita Tyagi' appears as nominee in the copy of the AXIS Bank FDR with A/c No. 924040058443911 for Rs. 5,20,000/- in the name of appellant/accused deposited in compliance of order dated 10.01.2024 passed in CRL. M.C. 233/2024 case titled as 'Adesh Tyagi Vs. Pooja Kaur' by Hon'ble High Court of Delhi. It thus clearly appears that the said 'Lalita Tyagi' is not an unknown person. The appellant/accused therefore cannot plead ignorance over the signature by this name appearing on the AD card Ex. CW1/7.
47. It is, therefore, evident that the legal demand notice has been sent by the complainant to the appellant/accused at correct address and in view of the legal position as stated above, the burden was heavily upon the appellant/accused to prove that he actually did not receive the legal demand notice. But he did not CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 34 of 39 discharge this burden. It is thus established that legal demand notice Ex. CW1/5 was duly served upon the accused persons. The legal demand notice Ex. CW1/5 is also sent within the statutory time period of 30 days from the information regarding dishonour of cheques in question as the date of dishonour of the cheques in question is 04.05.2017 and the date of sending leagal demand notice is 08.05.2017. This procedural requirement of Section 138 NI Act thus stands fulfilled.
48. The last limb of the procedural requirement of Section 138 NI Act i.e non payment by the drawer within 15 days of receipt of the legal notice also stands satisfied as the complainant/respondent has deposed in her affidavit-in-evidence that inspite of service of notice on 13.05.2017 the appellant/accused has failed to pay the cheque amounts to her him within the prescribed period of 15 days. There is also no reply sent to the said notice. The complaint was filed by the complainant before the learned Trial Court of Metropolitan Magistrate on 02.06.2017 i.e. well within the statutory time period of one month as stipulated u/s 142(b) NI Act. Hence, it has also been proved on record that appellant/accused failed to make the payment of said amount of money i.e. Rs. 26 lacs to the complainant/respondent within 15 days of the receipt of the said legal notice.
49. In view of above discussion, in my considered opinion, there is no illegality or infirmity in the judgment dated 22.12.2022 passed by the Ld. Trial Court thereby convicting the appellant/accused for the offence punishable under Section 138 NI Act.
CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 35 of 39SENTENCE
50. In so far as sentence is concerned, vide impugned order of sentence dated 07.01.2023, the appellant has been sentenced to undergo simple imprisonment for three months and directed to pay a sum Rs. 26,00,000/- (amount of cheques in question) with simple interest @ 9% p.a. on the said amount from the date of filing of complaint case (i.e. 02.06.2017) till the date of judgment (i.e. 22.12.2022) within 30 days from date of sentencing (i.e. 07.01.2023) and in default of payment of the amount, he shall undergo simple imprisonment of 03 months. The entire amount of fine was directed to be paid by the complainant as compensation under Section 357(3) of Cr.P.C. It was also clarified that the compensation amount, if not paid in time, shall be recoverable under Section 431 read with Section 421 Cr.P.C. The imprisonment for the offence under section 138 of the NI Act is upto two years, or with fine which may extend to twice the amount of the cheque, or with both.
51. In respect of sentence, ld. counsel for appellant/convict sought lenient approach stating that appellant/convict is government servant employed as a constable in Delhi Police. Ld. Counsel also submitted that already portion of appellant's salary is attached which is adjusted in making payment to the complainant/respondent towards liability in the civil decree towards the cheques in question.
52. On the other hand, Learned Counsel for the complainant/respondent contended that appellant/convict has taken contradictory stands throughout his case and has thus evaded his culpability u/s 138 NI Act in respect of the cheques in question CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 36 of 39 even though the civil suit is decreed against him, which remains unchallenged, and therefore the sentence awarded by Ld. Trial Court be sustained atleast. Ld. Counsel also contended that the trial has run for long time and till date, complainant/respondent awaits justice.
53. In the present case, the loan was given in the month of May 2014 and the cheques in question were issued in April 2017 and after lapse of about 5½ years, the appellant/accused has been convicted by Ld. Trial Court vide judgment dated 22.12.2022 and sentence order dated 07.01.2023 against which the present appeal is heard in which also about 1 ½ years have lapsed, thus it has been about 7 years that complainant/respondent is deprived of justice. The appellant/convict did not make payment of the dishonored cheques in question despite demand made by the complainant through legal notice. Rather during the trial, appellant/convict took contradictory stands. The complainant/respondent has thus been dragged into the litigation which has lasted for about more than 7 years as of now from the date of dishonor of the cheques in question. It is also noted that the husband of the complainant has since expired and the complainant has been pursuing the litigation all alone.
54. Keeping in view all these circumstances, I find that the compensation of the cheque amount only with interest @ 9 % p.a. awarded to the complainant/respondent as well as the sentence of simple imprisonment for three months awarded to the appellant/convict does not appear to be on the higher side. This Court is therefore in agreement with the Ld. Trial Court on the quantum of sentence awarded vide impugned order dated CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 37 of 39 07.01.2023. The same thus requires no interference except that the simple interest @ 9 % p.a. is directed to be paid from the date of filing the present complaint (i.e. 02.06.2017) till the date of this judgment (i.e. 02.09.2024). The awarded amount of Rs. 26,00,000 (Rupees Twenty Six Lacs) with interest is directed to be paid within 30 days from today and in default of payment of the amount, the appellant/convict shall undergo simple imprisonment for three months. The compensation amount, if not paid in time, shall be recoverable under the provisions of Section 431 read with Section 421 Cr.P.C.
55. It is further directed that the maturity value of the Axis Bank FDR SR No. 112074675382 with A/c No. 924040069172538 with start date 30.04.2024 for principal amount of Rs. 5,20,000/- in the name of Ld. Principal District & Sessions Judge (HQ), Delhi, deposited on record as 20 % of the cheque amounts, be adjusted against the compensation amount awarded and therefore, this FDR be released to the complainant/respondent with endorsement order to the bank concerned to release the maturity amount in favour of the complainant/respondent namely Pooja Kaur.
56. The present appeal is devoid of any merits and the same is hereby dismissed.
57. The appellant/convict is taken into custody and warrant of commitment be sent to the concerned Jail Superintendent for executing the sentence.
58. Copy of this judgment is supplied to the appellant/convict free of cost against acknowledgment.
CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 38 of 3959. Appeal file be consigned to Record Room after due compliance.
60. Trial Court Record be sent back to the Ld. Trial Court alongwith copy of this judgment. Ld. Trial Court is requested to carry out the execution of this judgment with regard to the release of the aforesaid Axis Bank FDR SR No. 112074675382 as directed in para 55 of this judgment.
(Announced in Open Court
on 2nd September, 2024) Digitally signed
by PRANJAL
PRANJAL ANEJA
ANEJA Date:
2024.09.02
17:02:03 +0530
(PRANJAL ANEJA)
Special Judge, NDPS-02,
Central,THC, Delhi/02.09.2024(vp)
CA No. 29/2023 Adesh Tyagi Vs. Pooja Kaur Page 39 of 39