Delhi District Court
Raju Singh S/O Sh. Raghu Raj Singh vs The State on 20 May, 2023
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CRL. APPEAL No. 295 of 2019
CNR No. DLST01-005290-2019
Raju Singh S/o Sh. Raghu Raj Singh
R/o : 4W-1101, AWHO, Greater Noida
Uttar Pradesh ....Appellant
VERSUS
1. The State, NCT of Delhi
2. Animesh Kumar S/o Sh. B.P. Pandey
R/o : B-160, Street No.4, Birla Farms,
Opposite JVTS Gardens,
New Delhi-110074 ...Respondents
Date of Institution : 02.08.2019
Arguments heard on : 27.04.2023
Date of Judgment : 20.05.2023
JUDGMENT
1. This is an appeal filed against the judgment of conviction and order on sentence passed by the Ld. Trial Court in a case involving dishonour of cheques resulting into commission of an offence punishable U/s 138 NI Act.
2. Both the sides have been heard. Record perused.
3. It seems that complainant had given some loan to the accused and has received two cheques in discharge of the liability. The cheques were however returned unpaid by the bank and therefore, a case was filed which resulted into conviction.
RAKESH KUMAR 4. The complainant has deposed before the Ld. Trial Court SINGH through an affidavit and reiterated the version of his complaint.
Digitally signed by RAKESH KUMAR SINGH Date: 2023.05.20 16:33:54 +0530 CA No. 295/2019 Raju Singh vs. State & Anr. Page 1 of 10He was cross-examined wherein the accused has not been able to impeach the credit of complainant on any material particular. Rather the following suggestions show that the loan liability was in existence :
i) It is wrong to suggest that I had already received the loan amount from Sh. Sarvesh Singh and I had not return the PDCs.
ii) It is wrong to suggest that cheques were given only for the purpose of security and not to discharge any legal liability.
5. The suggestions given on behalf of the accused clearly show that he accepts the existence of loan and that he had given the cheques to the complainant. Now it has been settled that the suggestions given on behalf of the accused are binding (see Judgment of Hon'ble Supreme Court in Balu Sudam Khalde vs The State Of Maharashtra, 2023 SCC Online SC 355).
6. From the suggestions given by the accused, it is clear that accused is not disputing the issuance of cheques and also that loan amount was advanced by the complainant. Otherwise, the accused could not have suggested that loan amount was already received from Sarvesh Singh. For existence of such a fact of receiving loan amount from Sarvesh Singh by the complainant, the pre-cursor would be a fact that the loan amount was firstly advanced by the complainant. In such circumstances, existence of loan transaction and issuance of cheques, both have to be accepted.
RAKESH KUMAR SINGH 7. It further appears that during his examination under Section-313 CrPC, the accused has stated to have taken Rs.1 lac Digitally signed by RAKESH KUMAR SINGH CA No. 295/2019 Raju Singh vs. State & Anr. Page 2 of 10 Date: 2023.05.20 16:34:09 +0530 through the said Sarvesh Singh. It is clear that he is not disputing the loan transaction but is only disputing the exact amount of the loan. His statement U/s 313 CrPC also supports the aforesaid inferences that loan was advanced and cheques were issued.
8. If the accused wanted to claim that the loan amount was repaid through the said Sarvesh Singh, he ought to have examined the said person in evidence. But he appears to have not done so. He has not produced any material to establish that he had repaid the amount to the complainant. In such circumstances, the claim made either during the cross-examination of the complainant or his statement U/s 313 CrPC cannot be accepted. It seems that the accused has examined one Lalit Kumar as a defence witness. The testimony of this witness clearly shows that he is an afterthought witness. The accused had nowhere talked about this person earlier either during the recording of his plea U/s 251 CrPC or during the cross-examination of the complainant or even during the statement U/s 313 CrPC. The witness is particularly going against the claim of the accused when he says that he was not in the need of money whereas the accused was claiming that he was in the need of money. The witness Lalit Kumar is entirely to be treated an improvement upon the case projected by the accused since beginning. This witness cannot be relied upon at all.
RAKESH KUMAR 9. Since signature on cheques has been admitted, there is a SINGH presumption of liability under Section-118 and 139 NI Act. In Digitally signed such circumstances, unless the accused rebuts the presumption, by RAKESH KUMAR SINGH Date:
the complainant will not be required to produce any proof of 2023.05.20 16:34:23 +0530 CA No. 295/2019 Raju Singh vs. State & Anr. Page 3 of 10 liability or source of income or financial capacity etc. Hon'ble the Supreme Court in P. Rasiya vs Abdul Nazer dated 12.08.2022, in this respect, has observed "By the impugned common judgment and order, the High Court has reversed the concurrent findings recorded by both the courts below and has acquitted the accused on the ground that, in the complaint, the Complainant has not specifically stated the nature of transactions and the source of fund. However, the High Court has failed to note the presumption under Section 139 of the N.I. Act. As per Section 139 of the N.I. Act, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability.
Therefore, once the initial burden is discharged by the Complainant that the cheque was issued by the accused and the signature and the issuance of the cheque is not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. The presumption under Section 139 of the N.I. Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the Complainant/holder of the cheque, in that case, it is for the accused to prove the contrary. The aforesaid has not been dealt with and considered by the High Court. The High Court has also failed to appreciate that the High Court was exercising the revisional jurisdiction and there RAKESH were concurrent findings of fact recorded by the courts below. In KUMAR SINGH view of the above and for the reasons stated above, the impugned Digitally signed by RAKESH KUMAR SINGH Date: 2023.05.20 CA No. 295/2019 Raju Singh vs. State & Anr. Page 4 of 10 16:34:34 +0530 common judgment and order passed by the High Court is not sustainable and the same deserves to be quashed and set aside".
9.1. Ld. Counsel for the appellant then argued that there was no documentary proof in respect of advancement of loan. I consider that the law does not require a loan agreement to be in writing. Oral agreement is sufficient in respect of loan transaction.
9.2. So far as contention of the appellant that several claims made by the complainant have not been mentioned in the complaint is concerned, I am of the view that there is no requirement of law to mention everything in the initial complaint. The offence is committed on the dishonour of cheque and cognizance can be taken on a written complaint once cause of action arises. Nothing more is required.
10. A three-Judge Bench of Hon'ble Supreme Court in Rangappa vs Mohan (2010) 11 SCC 441 has said "In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability". Another three judge bench decision in Hiten P. Dalal vs Bratindranath Banerjee (2001) 6 SCC 16 has said "Because both Sections 138 and 139 require that the court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of RAKESH Madras v. A. Vaidyanatha Iyer [AIR 1958 SC 61 : 1958 Cri LJ KUMAR 232] it is obligatory on the court to raise this presumption in SINGH every case where the factual basis for the raising of the Digitally signed by RAKESH KUMAR SINGH CA No. 295/2019 Raju Singh vs. State & Anr. Page 5 of 10 Date: 2023.05.20 16:34:43 +0530 presumption had been established". Yet another three Judge Bench of the Hon'ble Supreme Court in "Kalamani Tex and Another vs. P. Balasubramanian" (2021) 5 SCC 283 has observed in this regard "Once the 2nd appellant had admitted his signatures on the cheque and the deed, the trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The Trial Court fell in error when it called upon the respondent complainant to explain the circumstances under which the appellants were liable to pay. Such approach of the Trial Court was directly in the teeth of the established legal position as discussed above, and amounts to a patent error of law".
11. In view of the above, it is clear that unless the accused rebuts this mandatory presumption, the complainant cannot be asked to produce any other evidence. In Dhanvantrai Balwantrai Desai vs State of Maharashtra AIR 1964 SC 575, a four-Judge Bench of Hon'ble Supreme Court was dealing with similar kind of mandatory presumption (in corruption law) and provided the manner of rebuttal. It observed "The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'Proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that 'a reasonable man would act on the supposition RAKESH that it exists. Unless, therefore, the explanation is supported by KUMAR SINGH proof, the presumption created by the provision cannot be said to be rebutted". Someone may say that the aforesaid judgment is Digitally signed by RAKESH KUMAR SINGH Date: CA No. 295/2019 Raju Singh vs. State & Anr. Page 6 of 10 2023.05.20 16:34:52 +0530 rendered in respect of corruption cases which are dealt with differently and strict interpretation is required whereas the NI Act cases are more of compensatory nature and therefore, such strict interpretations should not be adopted. To avoid any such type of confusion, it is noted that a three judge bench in Hiten P. Dalal vs Bratindranath Banerjee (2001) 6 SCC 16 subsequently applied the aforesaid law of rebuttal in respect of NI Act cases by observing "The more authoritative view has been laid down in the subsequent decision of the Constitution Bench in Dhanvantrai Balwantrai Desai vs State of Maharashtra AIR 1964 SC 575, where this Court reiterated the principle enunciated in State of Madras vs Vaidyanath Iyer (Supra) and clarified that the distinction between the two kinds of presumption lay not only in the mandate to the Court, but also in the nature of evidence required to rebut the two".
12. In the present case, accused has not been able to establish his claim. As such, the onus remains on the accused and does not shift to the complainant. Consequently, there is hardly any necessity for the complainant to produce any other material to support the liability for the consideration mentioned in the cheques.
13. In view of the above discussion, it is held that the accused has not been able to rebut the mandatory presumption of law and the complainant has been able to prove that the accused had RAKESH KUMAR issued the cheques against legal liability. Cheques were SINGH dishonoured. Since the legal demand notice was sent on the Digitally signed by RAKESH KUMAR SINGH Date: 2023.05.20 CA No. 295/2019 Raju Singh vs. State & Anr. Page 7 of 10 16:35:06 +0530 correct address of the accused, the same has to be treated as validly served.
13.1. However, a technical point has been raised by the Ld. Counsel for the accused that the legal demand notice was not issued in 30 days time period. It appears that the the cheque dishonour memo is dated 17.03.2016 whereas the legal demand notice was issued on 18.04.2016. The explanation given by the complainant is that he had received the information about dishonour on 12.04.2016. The entire dispute revolves around the fact of receiving of information.
13.2. Section-138 NI Act requires that demand in writing must be made within 30 days from the receiving of information regarding dishonour of cheque. Pertinently, it does not talk about date of dishonour or date of dishonour memo. It precisely talks about the date of receiving of information by the complainant. As such, the thirty days time period has to be calculated from receiving of information.
13.3. In the present case, paragraph-14 of the complaint shows that the information was received on 12.04.2016. This claim was supported by the complainant through his deposition in evidence affidavit vide its paragraph-15. The affidavit being an evidence in NI Act cases, has to be given due weightage. Clearly therefore, RAKESH KUMAR the complainant has been able to establish the date of receiving SINGH of information as 12.04.2016.
Digitally signed by RAKESH KUMAR SINGH Date: 2023.05.20 16:35:17 +0530 CA No. 295/2019 Raju Singh vs. State & Anr. Page 8 of 1013.4. The complainant was cross-examined by the accused but it was nowhere disputed that the information was received on 12.04.2016. No specific question was asked from the complainant during cross-examination. If a party does not cross- examine a witness on material points, the facts should be treated as admitted. In the present case, date of information i.e.12.04.2016 was a very material fact but the complainant was not cross-examined on the said point. As such, it has to be treated that the accused has admitted the fact i.e. the date of receiving of information was 12.04.2016.
13.5. Counted from 12.04.2016, the legal demand notice issued on 18.04.2016 was well within the time period.
14. I have gone through the Judgments relied upon by the counsel for the accused but the same are rendered on their own factual position and do not lay down any law contrary to the judgments of four Judges Bench and three Judges Bench mentioned herein above and therefore there is hardly any necessity to discuss those judgments in the present factual position.
15. All ingredients of the provision being satisfied, the accused is held to be guilty of offence punishable under Section-138 NI RAKESH Act. As such, the order of conviction passed by the Ld. Trial KUMAR Court is upheld.
SINGH Digitally signed by RAKESH
16. So far as sentence is concerned, the Ld. Trial Court has KUMAR SINGH Date: imposed a fine of Rs.2,75,000/- to be paid to the complainant as 2023.05.20 16:35:28 +0530 CA No. 295/2019 Raju Singh vs. State & Anr. Page 9 of 10 compensation. In default of payment of the fine/compensation, four months simple imprisonment has been awarded. I am of the view that Ld. Trial Court has already shown sufficient leniency by not awarding any substantive imprisonment. No further leniency is required to be shown to the accused.
17. Having heard the Ld. Counsels on both the sides and upon perusal of the record, I am of the view that the appeal is devoid of merit and the same is, therefore, dismissed. Accused shall have 10 days time to deposit the balance fine amount before the Ld. Trial Court. Complainant shall also be at liberty to get the deposited amount, if any, released.
18. TCR along with a copy of this Judgment be sent to the Ld. Trial Court.
19. The appeal file be consigned to the Record Room after due compliance.
ANNOUNCED IN THE OPEN COURT TODAY ON THIS 20th DAY OF MAY, 2023 Digitally signed by RAKESH RAKESH KUMAR KUMAR SINGH Date: 2023.05.20 SINGH 16:35:36 +0530 (RAKESH KUMAR SINGH) ADDITIONAL SESSIONS JUDGE (SOUTH) SAKET COURTS : NEW DELHI CA No. 295/2019 Raju Singh vs. State & Anr. Page 10 of 10