Delhi District Court
Mohinder Singh Nehra vs State (N.C.T. Of Delhi) on 19 February, 2022
IN THE COURT OF SH. SUSHIL ANUJ TYAGI, ASJ
(FTSC) (RC) SOUTH WEST DISTRICT, DWARKA
COURTS, NEW DELHI.
CNR No.DLSW01-000233-2020
Criminal Appeal No. 14/2020
1. Mohinder Singh Nehra,
S/o late Sh. M.R. Nehra,
R/o Flat No. 412, Plot No.15,
Rastriya Apartment, CGHS,
Sector-18A, Dwarka,
New Delhi-110077.
2. M/s Nehra Enterprises,
(Through its Owner/Proprietor)
Mohinder Singh Nehra
At Flat No. 412, Plot No.15,
Rastriya Apartment, CGHS,
Sector-18A, Dwarka,
New Delhi-110077. .....Appellants
VS.
1. State (N.C.T. of Delhi)
2. Sh. Brahm Prakash,
S/o Sh. Ram Kishan,
R/o RZP-336, Flat No.1,
Gali No.5, Capital Home,
Raj Nagar, Part-II,
New Delhi-110077. .....Respondents
Date of institution of appeal : 13.01.2020
Date on which judgment reserved : 15.01.2022
Date on which judgment pronounced : 19.02.2022
Mohinder Singh Nehra & Anr. Vs. State & Anr.,
CA No. 14/2020 1 of 22
JUDGMENT
1. This is an appeal filed by the appellant No.1 Mohinder Singh Nehra and also on behalf of appellant No. 2 M/s Nehra Enterprises as its owner/proprietor U/s 374(3) Cr.P.C. against the judgment dated 28.11.2019 and the order on sentence dated 10.12.2019 passed by the court of Sh. Avneesh Kumar, Ld. MM (NI) Act, Dwarka Courts, New Delhi, in CC No. 5002356/2016, titled as Brahm Prakash Vs. Mohinder Singh Nehra & Anr., U/s 138 of Negotiable Instruments Act.
2. The brief facts of the case, as per the complaint, are that the respondent/complainant was said to have friendly relations with the appellant/accused No.1 and the appellant/accused No.1 is the owner and proprietor of appellant/accused No.2 - M/s Nehra Enterprises. In the month of April 2014, the appellant/accused No.1 approached the respondent/complainant for a loan of Rs. 10 lacs and on 02.05.2014, the respondent/complainant gave him Rs. 10 lacs in cash for a period of 6 months. It is submitted that again, in November 2014, the appellant/ accused No.1 approached the respondent/complainant for a further loan of Rs. 10 lacs and assured the respondent/ complainant that the whole amount of Rs. 20 lacs would be paid by May 2015. The respondent/complainant further gave a sum of Rs. 10 lacs to the appellant/accused No.1 on 23.11.2014 and the appellant/accused No.1 issued two post Mohinder Singh Nehra & Anr. Vs. State & Anr., CA No. 14/2020 2 of 22 dated cheques bearing No.002821 & 002822, both dated 06.02.2015 of Rs. 5 lacs each. The appellant/accused No.1 further assured the respondent/complainant that the balance amount of Rs. 10 lacs would be paid in cash by the end of May 2015 but when the cheques were presented by the respondent/complainant, they got for the reason of 'Insufficent Funds'.
3. It is alleged that when the respondent/complainant told the appellant/accused No.1 about the dishonour of the cheques, then appellant/accused No.1 assured him that he would pay the whole amount of Rs. 20 lacs by the end of May, 2015 but even after this date, appellant/accused No.1 did not pay back the amount of Rs. 20 lacs. It is further alleged that after repeated visits, the appellant/accused No.1 further issued two cheques bearing No. 000029 dated 19.04.2016 & No. 000030 dated 21.04.2016 of Rs. 5 lacs each in favour of the respondent/complainant (these are the cheques in question). It is further alleged that again when the said cheques were presented by the respondent/ complainant, the same got dishonoured due to the reasons of 'Insufficient Funds'. It is further alleged that the respondent/complainant sent a legal notice dated 20.05.2016 to the appellant/accused through registered letter and speed post but despite service of notice, the appellant/accused No.1 failed to make the payment in the prescribed period and therefore, the present complaint has been filed by the respondent/complainant. The Mohinder Singh Nehra & Anr. Vs. State & Anr., CA No. 14/2020 3 of 22 respondent/complainant had relied upon the following documents in support of his complaint : Two original cheques No. Ex. 000029 dated 19.04.2016 & No. 000030 dated 21.04.2016 of Rs. 5 lacs each; Original return memos; Copy of legal notice dated 20.05.2016 and its postal receipt.
4. The respondent/complainant thus, filed complaint U/s 138 of Negotiable Instruments Act and led pre-summoning evidence, upon which summons were issued to the appellant/accused No.1 and notice U/s 251 Cr.P.C. was served upon the appellant/accused No.1 on 16.05.2017, to which he pleaded not guilty and claimed trial. The appellant/accused replied that he has not received the legal demand notice. He admitted his signatures on the impugned cheques but stated that he has not filled the particulars. The appellant/accused took a defence, which is reproduced below :-
"I have taken a loan of Rs.10,00,000/- from the complainant in the year 2014. I have also returned the amount of Rs.10,00,000/- to the complainant. I have not taken any loan again of Rs.10,00,000/- in the year 2014. The cheque in question were given to Virender Yadav who happens to be the relative of the complainant as a security towards the construction material, I used to purchase from Virender Yadav. The cheques in question have been misused by the complainant as the same were never issued to him. Virender Yadav has passed away, therefore, the same stands misused by the complainant. I do not owe the liability towards the complainant."
5. The respondent/complainant led post summoning evidence by adopting his affidavit Ex. CW-1/A, which was tendered Mohinder Singh Nehra & Anr. Vs. State & Anr., CA No. 14/2020 4 of 22 in pre-summoning evidence, and also relied upon the documents Ex. CW-1/1 to Ex. CW1/10 and the respondent/ complainant was duly cross-examined on behalf of the appellants/accused persons.
6. The appellant/accused No.1 was examined U/s 313 Cr.P.C.
and all the incriminating evidence was put to him, to which he replied that he had some business with Virender Singh Yadav, who is a nephew of the complainant. He gave the cheques to Virender as security cheques as he used to supply building materials to him. Virender Singh Yadav expired unexpectedly before filing of this case. He further stated that he knew the complainant through Virender Singh Yadav only and he filled all the particulars except name and date. He further stated that he has not received any legal demand notice from the respondent/complainant. The appellant/accused opted to lead defence evidence and examined himself as DW-1 and duly cross-examined by the ld. Counsel for the respondent/complainant.
7. Ld. Trial Court after hearing arguments from both the sides, vide its impugned judgment dated 28.11.2019 convicted the appellant/accused U/s 138 of Negotiable Instruments Act, 1881 and vide impugned order on sentence dated 10.12.2019 passed the sentence till rising of the court and also directed the appellant/accused to pay compensation of Rs. 14 lacs to the respondent/complainant U/s 357(3) Cr.P.C. within 30 days and in default of payment of compensation to the respondent/ complainant, Mohinder Singh Nehra & Anr. Vs. State & Anr., CA No. 14/2020 5 of 22 to suffer further simple imprisonment for a period of two months.
8. Feeling aggrieved, appellants/accused No.1 challenged the aforesaid impugned judgment and order on sentence of the Ld. Trial Court by filing the present appeal on several grounds.
9. Ld. Counsel for the appellants/accused has contended that the impugned order is based on surmises and conjectures and is totally against the matrix of facts and law. It is argued that the Ld. MM has not taken into consideration the facts that there was no admitted position of the loan amount between the respondent No.2/complainant and appellants/accused; no receipt of the cash loan, as alleged by the respondent No.2/complainant; no handing over of the cheques in question to the respondent No.2/ complainant has been established. It is further argued that no financial capacity of the respondent No.2/complainant existed to ever pay to the appellants/accused for such a large amount of Rs. 10 lacs. Ld. Counsel has further argued that no legal notice has ever been served upon the appellants/accused in the instant case. It is argued that no power of attorney existed with the respondent No.2/ complainant to file case on behalf of late Virender Yadav to whom the cheques in question were handed over for the security.
Mohinder Singh Nehra & Anr. Vs. State & Anr., CA No. 14/2020 6 of 22
10. Ld. Counsel for the appellants/accused has further argued that the Ld. Trial Court has not appreciated that the respondent No.2/complainant has not examined any witness to prove his case regarding the loan taken by the appellant/accused. The respondent No.2/complainant was known to the appellant/accused through late Virender Singh Yadav only and there exist no transaction with the respondent No.2/complainant via any cheque or otherwise.
11. Ld. Counsel for the appellants/accused has further argued that the Ld. Trial Court did not appreciate that the respondent No.2/complainant had admitted in his cross- examination that "I do not file the income tax return". He further admitted that "I have filled the particulars of the name in the cheque in question dated 19.04.2016 and 21.04.2016" and that "I have not taken receipt of the loan amount from the accused" and that "I have given the loan amount of Rs.10 lakh to the accused in one installment in cash only".
12. Ld. Counsel for the appellants/accused has further argued that the Ld. Trial Court also did not appreciate the fact that the respondent No.2/complainant had also admitted in his cross-examination when confronted with the postal receipt that "I have not sent legal notice U/s 138 of N.I. Act on any other address than these". It is argued that the legal demand notice is sent on wrong and incorrect address, hence, the requirement of Section 138 N.I. Act are not made out. It is further argued that the Ld. Trial Court has Mohinder Singh Nehra & Anr. Vs. State & Anr., CA No. 14/2020 7 of 22 placed reliance upon the case titled as Alavi Haji Vs. Palapetty Muhammed & Anr. but the facts of that case are distinguishable from the facts of the present case.
13. It is also argued that the Ld. Trial Court had not appreciated the fact that the presumptions U/s 139 is rebuttable and the appellant/accused has rebutted the presumption of Section 139 by effectively cross-examining the respondent No.2/complainant wherein the respondent No.2/complainant has admitted that he does not file the ITR and also transaction of loan is not supported by the mode prescribed by the I.T. Act. Moreover, the respondent No.2/ complainant admitted that he does not has the cash receipt against the loan amount given to the appellant/ accused. Ld. Counsel for the appellants/accused has relied upon the decision of Hon'ble Supreme Court of India in the case titled as Baslingappa Vs. Mudibasappa, MANU/SC/0502/2019, wherein it is held that when the financial capacity of the complainant is challenged and the complainant has not proved the financial capacity, then the offence of Section 138 N.I. Act is not made out being perverse and presumption of Section 118 & 139 is adequately rebutted and argued that the respondent No. 2/ complainant has to adduce the evidence to show the financial capacity, which is not done in the present case.
14. Ld. Counsel for the appellants/accused has further argued that the Ld. Trial Court also did not appreciate the fact that the appellants/accused has entered in the witness box and Mohinder Singh Nehra & Anr. Vs. State & Anr., CA No. 14/2020 8 of 22 is being cross-examined and hence, the defence statement is a piece of evidence being vital, cannot be thrown away just for the purpose of Section 139 presumption and hence, the presumption of Section 139 is adequately rebutted.
15. Ld. Counsel for the appellants/accused has also relied upon the following judgments in support of his arguments:
i) Krishan Janardhan Bhat Vs. Dattatray G. Hegde, MANU/SC/0503/2008;
ii) M.D. Thomas Vs. P.S. Jaleel & Ors.,
MANU/SC/1047/2009;
iii) M/s Ajaya Industries Vs. Gulshan Rai Malhotra,
MANU/PH/3523/2013;
iv) Suresh Kumar Vs. Sasi, MANU/KE/0682/2002; and
v) Baslingappa Vs. Mudibasappa, MANU/SC/0502/ 2019.
16. Ld. Counsel for respondent No.2/complainant has refuted the arguments made by ld. Counsel for the appellanst/accused and argued that the Ld. Trial Court has rightly passed the judgment in favour of the respondent/complainant. It is argued that the legal demand notice has been sent to the correct address of the appellants/accused and it is the same address which is mentioned in the complaint and it is the same address on which the summons of this case has been served. It is further argued that the word 'Raj Nagar' is mentioned on the receipt of the post office of registered AD as Raj Nagar is the post office. It is further argued that no police complaint has been made by the appellants/accused regarding the misuse of the cheques and no suit has been filed to declare them as null and void. It is further argued Mohinder Singh Nehra & Anr. Vs. State & Anr., CA No. 14/2020 9 of 22 that no questions has been asked by the ld. Counsel for the appellants/accused regarding the source of income and the arguments in this regard are hollow. It is further argued that merely because the ITR has not been filed does not mean that the respondent No.2/complainant has not given the loan to the appellants/accused or that he has no source of income. Ld. Counsel for the respondent No.2/ complainant relied upon the following judgments in support of his arguments:-
(i) C.C. Alavi Haji Vs. Palapatty Muhammad & Ors. 2007, Cr.L.J. 3214;
(ii) Smt. Ragini Gupta Vs. Piyush Dutt Sharma 2019 Law Suit (MP) 191;
(iii) Guddo Devi @ Guddi Vs. Bhupender Kumar decided on 11.02.2020 by the Hon'ble High Court of Delhi in Cri. Revision petition 1246/2019.
17. Heard. Record perused.
18. It is trite in law that in the prosecution under section 138 Negotiable Instruments Act, the statutory presumptions U/s 118 and 139 Negotiable Instruments Act stands in favour of the complainant. Once the complainant proves that the negotiable instrument/cheque is executed by the maker in favour of the holder of the cheque, the law presumes that the same is drawn for consideration and the holder of the same received it in discharge of any debt or liability. The burden shifts on the shoulder of the accused to prove to the contrary, which he can do so by demolishing the case of complainant through cross-examination or by leading any cogent evidence in defence. The burden on the accused is Mohinder Singh Nehra & Anr. Vs. State & Anr., CA No. 14/2020 10 of 22 not heavy as that of prosecution but only of preponderance of probabilities.
19. In the present case, the respondent No.2/complainant has discharged his burden of prima-facie case by leading evidence by satisfying the basic ingredients of Section 138 of Negotiable Instruments Act. The burden shifted upon the appellant/accused to rebut the presumptions U/s 118 & 139 Negotiable Instruments Act standing in favour of the respondent/complainant. The appellant/accused No.1 has examined himself as DW-1 and cross-examined on behalf of the respondent No.2/complainant.
20. Now, this court will analyze whether the appellants/ accused has been able to show the preponderance of probabilities in his favour or not.
21. First and foremost, the defence raised on behalf of the appellant/accused No.1 is that he has not received the legal demand notice and that the legal demand notice has not been sent to the correct address of the appellants/accused and, therefore, the judgment of the Hon'ble Supreme Court of India in C.C. Alavi Haji's case (supra) is not applicable to the facts of the present case. It is argued that the word 'Raj Nagar' is recorded on the registered postal receipt and that the appellant/accused No.1 is not a resident of 'Raj Nagar'. The appellant/accused No.1 has not disputed his address i.e. Flat No. 412, Plot No. 15 Rashtriya Apartment, CGHS, Sector-18A, Dwarka, New Delhi-110077. It is the Mohinder Singh Nehra & Anr. Vs. State & Anr., CA No. 14/2020 11 of 22 same address mentioned on the legal demand notice Ex. CW1/V as well as on the complaint under section 138 NI Act and also on the bail bonds furnished by the appellant/accused No.1 during the trial and appeal. The aforesaid legal demand notice was sent to the appellants/accused by the respondent No.2/complainant through registered AD and speed post, the receipts of which are Ex. CW1/VI to Ex. CW1/IX. The aforesaid receipts mentions that the legal demand notice has been sent to - Nehra Enterprises & Mohinder Singh Nehra, Sector-18A, Dwarka, and in the next line it is written 'Raj Nagar-II SO, PIN-110077'. Now taking this as a bone of contention, the Ld. Counsel for the appellants/accused has argued that the legal demand notice has not been sent to the correct address of the appellants/accused. It is of general knowledge that complete address is not recorded on the postal receipts given the constraint of space and only the brief address is mentioned on the postal receipts. A bare glance on the impugned postal receipts Ex. CW1/VI to Ex. CW1/IX would reveal that they have been sent to the appellant/accused at Sector-18A, Dwarka. In the next line the word 'Raj Nagar-II SO' is mentioned. The full form of 'SO' in post office is 'Sub Office'. Even the tracking report of the post receipts would reveal that they have been sent to Raj Nagar-II SO and from there they have been delivered to the intended address. Merely because the word Raj Nagar-II SO is mentioned in the post receipts, would not raise any doubt to the fact that the legal Mohinder Singh Nehra & Anr. Vs. State & Anr., CA No. 14/2020 12 of 22 demand notice is sent to the correct address of the appellants/accused, more-so, when the words 'Sector-18A, Dwarka' are clearly recorded after the name of the appellants/accused.
22. In addition, it is apt to refer the observations made by the Hon'ble Apex Court in C.C. Alavi Haji's case (supra) which are as follows:
"It is also to be borne in mind that the requirement of framing of notice is clear departure from the rule o f criminal law, where there is no stipulation of giving notice before filing a complaint. Any drawer who claims that he did not receive the notice send by post, can within 15 days of receipt of summons from the court in respect of the complaint U/s 138 NI Act, make payment of the cheque amount and submit to the court that he had made the payment within 15 days of receipt of summons (by receiving a copy of the complaint with the summons) and therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint U/s 138 NI Act, cannot obviously contend that there was no proper service of notice as required U/s 138 NI Act, by ignoring statutory presumption to the contrary U/s 27 of the General Clauses Act and section 114 of the Indian Evidence Act. In our view, any other interpretation of the proviso would defeat the very objective of the legislation."
23. In the present case, the respondent No.2/complainant has proved that he has sent the legal demand notice to the correct address of the appellants/accused and therefore, the presumptions U/s 27 of the General Clauses Act and U/s 114 of the Indian Evidence Act, stand in favour of the respondent No.2/complainant that the legal demand notice was delivered upon the appellants/accused in the due course.
Mohinder Singh Nehra & Anr. Vs. State & Anr., CA No. 14/2020 13 of 22
24. Nonetheless, if the appellant/accused No.1 contends that he did not receive the legal demand notice sent by post, he could within 15 days of the receipt of the summons from the court, make payment to the respondent No.2/ complainant, as per the law laid down in C.C. Alavi Haji's case (supra). It is to be noted that the purpose of legal demand notice is to give an opportunity to the maker of the cheque to make the payment of the cheque amount to the holder of the cheque so as to avoid unnecessary litigation and prevent wastage of time. If the appellant/accused No.1 had not received the legal demand notice, even then he had appropriate opportunity to make the payment of the cheque amount after receiving the summons from the court. The defence taken by the appellant/accused No.1 that he has not received the legal demand notice or that it was not sent to the correct address of the appellants/accused is found to be without any substance.
25. The next limb of the defence taken by the appellant/ accused No.1 is that there is no legally enforceable liability of the appellants/accused towards the respondent No.2/complainant as no document/receipt has been proved by the respondent No.2/complainant for giving the loan amount and that he has also not filed any ITR and therefore, the respondent No.2/complainant did not have the financial capacity to give loan of Rs. 10 lacs to the appellants/accused and such an act is also in violation of section 269 SS and 271 D of the Income Tax Act. Here it is Mohinder Singh Nehra & Anr. Vs. State & Anr., CA No. 14/2020 14 of 22 pertinent to refer to the cross-examination of the respondent No.2/complainant conducted on behalf of the appellants/accused. A bare glance at the cross-examination would reveal that not a single question has been asked by the appellants/accused regarding the source of income or the financial capability of the respondent No.2/ complainant. There is not even a suggestion to the effect that the respondent No.2/complainant has no source of income or that he is not financially capable to extend loan to the appellants/accused. Ld. Counsel for the appellants/accused has only raised this issue in the arguments that the respondent No. 2/complainant has not proved his source of income and that he is not financially capable to extend the loan. The question arises is upon whom the burden to prove lies. Section 102 of the Indian Evidence Act provides that the burden of proof lies upon the person who would fail, if no evidence is led from either side. The Negotiable Instruments Act being a special enactment which provides for presumptions under section 118 & 139 in favour of the complainant and as such the reverse burden lies upon the accused to rebut such presumptions. The prima facie burden is upon the accused to prove that the complainant has no source of income or that he has not financially capable to extend the impugned loan. Once the accused crosses such barrier, only then the onus shifts upon the complainant to prove the source of income or his financial capacity. In the present case no evidence has been led to prove that respondent No.2/ Mohinder Singh Nehra & Anr. Vs. State & Anr., CA No. 14/2020 15 of 22 complainant has no source of income and no cross examination of the respondent No.2/complainant has been conducted to raise any suspicion over his financial capability. As such, the appellants/accused has not been able to prima facie show that the respondent No.2/ complainant is not financially capable or that he has no source of income. Thus, onus never shifted upon the respondent No.2/complainant to show his source of income or his financial capability. Thus, there is no reason to doubt the source of income or the financial capability of the respondent No.2/complainant to extend the impugned loan to the appellants/accused. Reliance is also placed upon the judgment of the Hon'ble Supreme Court of India in Rohitbhai Jivanlal Patel Vs. State of Gujarat, Cri. Appeal No. 508/2019 wherein it was observed thus:
"The observations of the trial court that there was no documentary evidence to show the source of funds with the respondent to advance the loan, or that the respondent did not record the transaction in the form of receipt of even kachcha notes, or that there were inconsistencies in statement of the complainant and his witness, or that the witness of the complainant was more in know of facts etc. would have been relevant if the matter was to be examined with reference to the onus on the complainant to prove his case beyond reasonable doubt. These considerations and observations do not stand in conformity with the presumptions exiting in favour of the complainant by virtue of sections 118 & 139 of the NI Act. Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards the source of funds were not of relevant consideration while Mohinder Singh Nehra & Anr. Vs. State & Anr., CA No. 14/2020 16 of 22 examining if the accused has been able to rebut the presumption or not."
26. Further, the fact that the respondent No.2/complainant has not filed the ITR or that he has not shown the loan amount in the ITR would not cast any suspicion over the financial capability of the respondent No.2/complainant to extend loan. For the sake of arguments, even if it is presumed that the transaction between the appellants/accused and the respondent No.2/complainant was in violation of the Income Tax Act, even then it does not render the debt unenforceable. Reliance is placed upon the observations made by the Hon'ble High court of Delhi in Guddo Devi's case (supra), wherein it was held thus:
"14. Section 269 SS of the Income Tax Act, 1961 prohibits of making of any payment in cash above a sum of Rs. 20,000. Thus, any person violating the same would attract imposition of penalties under the said Act. However, the same does not render the said debt unenforceable or precludes the render from recovering the same."
27. Ld. Counsel for the appellants/accused has argued that the appellants/accused have not taken any loan from the respondent No.2/complainant and the impugned cheques were given as security to one Virender Kumar Yadav for the shuttering material which was used for construction and those cheques have been misused by the respondent/complainant. At this juncture, it is important to observe the the appellant/accused No.1 has admitted during the framing of notice U/s 251 Cr. P.C. that he had Mohinder Singh Nehra & Anr. Vs. State & Anr., CA No. 14/2020 17 of 22 taken loan of Rs. 10 lacs from the respondent No.2/complainant in the year 2014 and that he has returned the same to the respondent No.2/complainant. He has only denied that he has not taken any other loan from the respondent No.2/complainant. Though the appellant/ accused No.1 has admitted the taking of loan from the respondent No.2/complainant while framing of notice, however, the appellant/accused No.1 has denied taking of any loan from the respondent No.2/complainant during the trial of the present case. This is a serious and material contradiction in the defence version.
28. Further, it is the defence of the appellant/accused No.1 that he has given the impugned cheques of Rs. 5 lacs each and also two other cheques of Rs. 2.5 lacs each to one Virender Kumar Yadav and in the cross-examination, the appellant/accused No.1 stated that he has given these cheques in the year 2014, albeit he does not remember the exact date and month. The impugned cheques are dated 19.04.2016 and 21.04.2016 respectively. The appellant/ accused No.1 has not produced the counter foil of the cheque book from which the impugned cheques have been issued. If the impugned cheques were handed over in the year 2014, then the appellant/accused No.1 could have shown the counter foil of the cheque-book to show the date of clearing of the cheques preceding to the impugned cheques to support his version or the appellant/accused No.1 could have examined the bank witness to prove the Mohinder Singh Nehra & Anr. Vs. State & Anr., CA No. 14/2020 18 of 22 clearing dates of the cheques preceding or succeeding the impugned cheques to support his version that the impugned cheques pertains to the year 2014 and not of 2016. Despite having ample opportunities the appellant/ accused No.1 has chosen not to lead evidence in this regard. Further the appellant/accused No.1 has not refuted the version of the respondent No.2/complainant that two other post dated cheques bearing No. 002821 and 002822 both dated 06.02.2015 of Rs. 5 lacs were also dishonoured. The appellant/accused No.1 has not explained that how the other two post dated cheques have gone into the possession of the respondent No.2/complainant.
29. The appellant/accused No.1 has only given oral evidence for his defence story that the impugned cheques were given to Virender Kumar Yadav but no documentary evidence has been produced to corroborate his version. No other witness has been examined by the appellants/accused to prove his defence story.
30. To add, it is natural for a person to file a complaint to the police regarding the misuse of the cheque or to atleast inform the bank to stop payment to avoid the misuse of cheque. It is the defence of the appellant/accused No.1 that he has given the impugned cheques to one Virender Kumar Yadav for security in the year 2014 and that he has settled the accounts with Mr. Virender Kumar Yadav in May 2016 but due to some controversy, Rs. 45,000/- were remained to be paid to Mr. Virender Kumar Yadav and as such he Mohinder Singh Nehra & Anr. Vs. State & Anr., CA No. 14/2020 19 of 22 could not take the security cheques back from Mr. Virender Kumar Yadav and those cheques have been misused by the respondent No.2/complainant herein. If such was the case, the first natural course of action would have been to give appropriate instructions to the banker to stop the payment of the cheques to avoid the misuse but admittedly no intimation or instructions were ever given by the appellant/accused No.1 to his banker. No complaint regarding the misuse of the cheques was ever filed to the police authorities nor even a civil case for declaring the cheques or transaction as null or void has been filed on behalf of the appellant/accused No.1. Apparently no action has been taken by the appellant/accused No.1 qua the alleged misuse of his cheques, which speaks volume about the conduct of the appellant/accused No.1.
31. The signatures of the appellant/accused No.1 on the impugned cheques are admitted. The extension of loan of Rs. 10 lacs by the respondent No.2/complainant to the appellants/accused was also admitted by the appellant/ accused No.1 while framing of notice U/s 251 Cr. P.C. albeit the second loan of Rs. 10 lacs was denied. As discussed earlier, the legal demand notice is found to be sent to the correct address of the appellants/accused. No suspicion or doubt is found on the source of income or the financial capability of the respondent No.2/complainant to advance the impugned loan to the appellants/accused. The defence raised by the appellants/accused that the impugned Mohinder Singh Nehra & Anr. Vs. State & Anr., CA No. 14/2020 20 of 22 cheques were given to Virender Kumar Yadav for security, is not found to be a probable defence, due to lack of any supporting evidence. The appellants/accused have failed to rebut the presumptions under section 118 & 139 of the NI Act standing in favour of respondent No.2/complainant.
32. For the foregoing reasons, this court is of the considered opinion that the appellants/accused have miserably failed to prove his defence on the preponderance of probabilities.
33. This court finds the impugned judgment dated 28.11.2019 and order on sentence dated 10.12.2019 of the Ld. Trial Court to be free from any illegality, infirmity or perversity. They are detailed, well reasoned and legally sound decisions. Therefore, the appeal filed by the appellants Mohinder Singh Nehra and M/s Nehra Enterprises, is hereby dismissed and impugned judgment dated 28.11.2019 and order on sentence dated 10.12.2019, passed by the Ld. Trial Court, are accordingly upheld.
34. Trial Court Record be sent back to the Ld. Trial Court alongwith a copy of this judgment to execute the order of sentence passed by the Ld. Trial Court.
35. The Demand draft of Rs. 3 lac which was deposited by the appellant/accused No.1 at the time of admission of appeal and suspension of sentence by the Appellate court, be released in favour of the respondent No.2/complainant.
Mohinder Singh Nehra & Anr. Vs. State & Anr., CA No. 14/2020 21 of 22
36. Both the parties are directed to appear before the Ld. Trial Court on 21.02.2022.
37. A copy of this judgment be also supplied to both the parties.
38. Appeal file be consigned to Record Room.
Pronounced in open Court SUSHIL Digitally signed by
SUSHIL ANUJ TYAGI
On this day of 19th February, 2022 ANUJ Date: 2022.02.19
TYAGI 17:36:10 +05'30'
(SUSHIL ANUJ TYAGI)
Additional Sessions Judge,
Fast Track Special Court (RC)
South West District:
Dwarka Courts: New Delhi.
Mohinder Singh Nehra & Anr. Vs. State & Anr., CA No. 14/2020 22 of 22