Delhi District Court
Sh. Harpreet Singh Kochar vs Sh. Kavinder Singh on 21 March, 2022
IN THE COURT OF SHRI PRASHANT SHARMA
ADDL. SESSIONS JUDGE-02 : SOUTH EAST DISTRICT
SAKET COURT : NEW DELHI
Criminal Appeal No. 617/19
PS- Lajpat Nagar
U/Sec. 138 N.I. Act
In the matter of :-
Sh. Harpreet Singh Kochar
S/o Sh. N.S. Kochar
R/o 5/31, Nirmal Puri
Lajat Nagar- 04
New Delhi
.... Appellant
Versus
Sh. Kavinder Singh
S/o Sh. Bhagwan Singh
R/o 2/7 A, Jangpura-A
New Delhi- 110014.
.... Respondent
Date of Institution : 13.12.2019
Date of Reserve for judgment : 15.03.2022
Date of Judgment : 21.03.2022
JUDGMENT
1. Appellant namely Harpreet Singh Kochar has filed present appeal thereby challenging the impugned judgment dated 31.08.2018 and order on sentence dated 01.11.2019 passed by Ld. Trial Court in Complaint Case No. 627281/16, PS Lajpat Nagar.
CA No. 617/19 1 of 24 Harpreet Singh Kochar Vs. Kavinder Singh
2. Appellant herein was accused and respondent herein was complainant before Ld. Trial Court. In my subsequent paragraphs, both the parties will be referred with the same nomenclature with which they were referred before Ld. Trial Court, to avoid any confusion.
3. Ld. Trial Court record reveal that complainant had filed Complaint Case u/sec. 138 Negotiable Instruments Act (in short 'NI Act'), alleging that he was acquainted with accused through common circle of friends and business associates. Complainant claimed that he was a businessman engaged in the business of sale/purchase of second hand motor vehicles and immovable properties. In March 2007, accused requested financial help of Rs. 6 lakhs from complainant. Accused assured that he shall pay interest @ 2% on the said amount every month and shall repay the entire loan within a period of four months i.e. on or before 15.07.2007. Complainant considering the said request of accused, arranged Rs. 5,50,000/- from his friends and relatives and handed it over to accused around 16.03.2007. While receiving said loan, accused gave two cheques dated 16.07.2007 bearing No. 247692 and dated 17.07.2007 bearing No. 247693, both drawn on UTI Bank Ltd. Lajpat Nagar-II, New Delhi for repayment of principle amount. Since receiving of said loan amount, accused did not repay the interest part on the principle amount of complainant. On 10.07.2007, complainant requested again to accused to repay the principle amount with interest but of no avail. Finally, the complainant was constrained to put the aforesaid two cheques in his banker. Those cheques were dishonoured for the reason "insufficient funds". Accused never repaid the principle CA No. 617/19 2 of 24 Harpreet Singh Kochar Vs. Kavinder Singh amount alongwith interest to complainant despite dishonour of aforesaid cheques. Complainant gave legal notice dated 25.07.2007 to accused calling upon him to repay the cheque amount in question but of no avail. Hence, he moved the court by filing present complaint case.
4. After filing of the complaint, summons were issued by trial court on the basis of pre-summoning evidence. Accused appeared in the court and after compliance of the mandate of Section 207 CrPC, notice U/s. 251 CrPC was put to him. In response to the same, accused claimed that he had borrowed Rs. 10 lakhs from complainant Kavinder Singh and his partner Paramjit Singh, which he had returned to complainant Kavinder Singh and Paramjit Singh against the receipt duly signed by complainant. Cheques in question were security cheques and therefore he claimed that he was not liable to pay any amount to complainant. Consequently, accused was given opportunities to file application U/s. 145 (2) NI Act but despite various opportunities accused did not file the said application and therefore right of accused to cross examine the complainant witness was closed by ld. Trial court vide order dated 20.05.2017. Matter was then fixed for defence evidence.
5. Accused did not lead defence evidence and therefore ld. Trial court closed defence evidence of accused on 27.09.2017. Thereafter, matter was fixed for final arguments. After hearing final arguments, Ld. Trial court convicted accused vide judgment dated 31.08.2018 and passed sentence order dated 01.11.2019.
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6. Against the said judgment and order on sentence, present appeal was preferred by accused.
7. In the grounds of appeal, accused claimed that Ld. Trial court did not pass correct impugned judgment. As per him, Ld. Trial court failed to appreciate that accused is a psychiatric and paralytic patient and therefore was not able to examine complainant witness. Further he claimed that due to poor medical condition and improper guidance he was not able to present himself and prosecute the matter in diligent manner. He annexed his medical certificate with the appeal. He also claimed that he is a person of unsound mind and therefore procedure U/s. 329 CrPC had to be followed by Ld. Trial court. He claimed that Ld. Trial court failed to appreciate that complainant had concealed the fact that he had already received the amount from accused and cheque was given for security purpose only. Complainant misused the cheques in question by filing complaint case in question against accused. Hence, based on said grounds he prayed that impugned judgment and order on sentence be set aside.
8. After filing of appeal, notice of appeal was issued to complainant, who appeared in the court through counsel.
9. Arguments were advanced by rival parties and matter was fixed for judgment.
CA No. 617/19 4 of 24 Harpreet Singh Kochar Vs. Kavinder Singh
10. During the course of present appeal, accused preferred an application U/s. 391/311 CrPC read with Section 145 (2) of NI Act in which he prayed that he may be given permission to cross examine CW in the interest of justice.
11. Arguments on the said application were advanced by counsel for accused.
12. After hearing arguments, matter was reserved for judgment.
13. In order to appreciate and decide present appeal, I find it relevant to mention here law relating to Section 138 NI Act and with respect to the presumptions U/s. 118 (a) and 139 NI Act. The said provisions and the interpretations given by higher echelon of Judiciary, are relevant. Therefore, they are mentioned below:-
"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 CA No. 617/19 5 of 24 Harpreet Singh Kochar Vs. Kavinder Singh have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for (a term with 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 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."
14. Hon'ble Apex Court had the occasion to appreciate and interpret aforesaid provision in case titled as Kusum Ingots and Alloys Ltd. Vs. Pennar Peterson Securities Ltd. (2000) 2 SCC 745. In the said CA No. 617/19 6 of 24 Harpreet Singh Kochar Vs. Kavinder Singh judgment Hon'ble court observed that in order to successfully prosecute the drawer of a cheque for an offence U/s. 138 NI Act, following facts are required to be proved successfully.
"a) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for discharge of any debt or other liability.
b) That 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, which ever is earlier.
c) That cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the 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 the bank.
d) The payee or the holder in the due course of the cheque 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 15 days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid.
e) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of said notice.........."
CA No. 617/19 7 of 24 Harpreet Singh Kochar Vs. Kavinder Singh ".............Judicial statements have deferred as to the quantum of rebutting evidence required. In Kundun Lal Rallaram Vs. Custodian, Evacuee Property, Bombay AIR 1961 SC 1316, this Court held that the presumption of law under Section 118 of presumption of fact raised under Section 114 of the Evidence Act. The decision must be limited to the facts of that case. The more authoritative view has been laid down in the subsequent decision of the Constitution Bench in Dhanvantrai Balwantrai Desai v. State of Maharashtra :
1964 Cri. L 1437 : 1964 Cril 1437, where this Court reiterated the principle enunciated in State of Madras v. 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. In the case of a discretionary presumption the presumption if drawn may be rebutted by an explanation which "might reasonably be true and which is consistent with the innocence" of accused. On the other hand in the case of mandatory presumption "the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under S.114 of the Evidence act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must CA No. 617/19 8 of 24 Harpreet Singh Kochar Vs. Kavinder Singh further be shown that the explanation is a true one. 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 that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by provision cannot be said to be rebutted......"
15. Section 118 (a) and Section 139 of NI Act are mentioned in verbatim below :-
"Section 118 : Presumptions as to negotiable instruments,- Until the contrary is proved, the following presumptions shall be made:-
(a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted indorsed, negotiated or transferred, was accepted, was indorsed, negotiated or transferred for consideration;"
"Section 139 : Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability."
CA No. 617/19 9 of 24 Harpreet Singh Kochar Vs. Kavinder Singh
16. It is a well settled legal position that the presumptions U/s. 118 and 139 NI Act are rebuttable presumptions and the burden lies on the accused to prove that he had no liability/debt on the date of issue of the cheque. It is also a settled principle of law that to bring home an offence under any of the penal provisions, it is essential to prove the case beyond reasonable doubt and the ingredients of the offence should be satisfied. Hon'ble Apex court had the occasion to appreciate the aforesaid provisions in certain case laws which are relevant for the purpose of adjudication of this appeal. The relevant observations of the said case laws are mentioned in my subsequent paragraphs.
17. In case titled as M.S. Narayana Menon Vs. State of Kerala, 6 SCC 39, it was held that;
"While dealing with that aspect in a case under Section 138 of the Negotiable Instruments Act, 1881, this court held that presumptions under sections 118
(a) and 139 of the Act are rebuttable and the standard of proof required for such rebuttal is preponderance of probabilities and not proof beyond reasonable doubt.
The Court observed:
In terms of section 4 of the Evidence Act whenever it is provided by the Act that the court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. The words "proved" and "disproved" have been defined in section 3 of the Evidence Act (the interpretation clause).
CA No. 617/19 10 of 24 Harpreet Singh Kochar Vs. Kavinder Singh Applying the said definitions of "proved or "disproved" to the principle behind section 118 (a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.
The standard of proof evidently is
preponderance of probabilities. Inference of
preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which the relies.
Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence to exist or consider its existence to be reasonable probable, the standard of reasonability being that of the "prudent man".
CA No. 617/19 11 of 24 Harpreet Singh Kochar Vs. Kavinder Singh
18. In Case titled as Hiten P. Dalal Vs. Bratindranath Banerjee (2011) 6 SCC 16 it was held as under:-
"Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.
In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary."
19. Hon'ble Apex court in case titled as Krishna Janardhan Bhatt Vs. Dattatraya G.Hegde (2008) 4 SCC 54 observed;
"Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but CA No. 617/19 12 of 24 Harpreet Singh Kochar Vs. Kavinder Singh also by reference to the circumstances upon which he relies."
"Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely, presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same."
20. Further, in Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Pyarelal (1999) 3 SCC 35 it was observed as under:-
"Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as CA No. 617/19 13 of 24 Harpreet Singh Kochar Vs. Kavinder Singh a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non- existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. Bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist."
CA No. 617/19 14 of 24 Harpreet Singh Kochar Vs. Kavinder Singh "Section 139 of the Act is an example of reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of 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 the absence of compelling justification, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is settled position that when an accused has to rebut the "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in 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."
CA No. 617/19 15 of 24 Harpreet Singh Kochar Vs. Kavinder Singh
21. In Case titled as M/s. Kumar Exports Vs. M/s. Sharma Carpets Crl. Appeal No. 2045 of 2008 passed by Hon'ble Supreme Court of India, it was held as under:-
"When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. 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 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 CA No. 617/19 16 of 24 Harpreet Singh Kochar Vs. Kavinder Singh that bare denial of the passing of the consideration and existence of debt, apparently would not server 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. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The accused has also an option to prove the non- existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the CA No. 617/19 17 of 24 Harpreet Singh Kochar Vs. Kavinder Singh statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue."
22. In Case titled as John K. John v. Tom Varghese 2007 (4) Civil Court Cases 690 (S.C), it was held as under:-
".....Presumption raised in terms of Section 139 of the Act is rebuttable. If, upon analysis of the evidence brought on records by the parties, in a fact situation obtaining in the instant case, a finding of fact has been arrived at by the High Court that the cheques had not been issued by the respondent in discharge of any debt, in our opinion, the view of the High Court cannot be said to be perverse warranting interference by us in exercise of our discretionary jurisdiction under Article 136 of the Constitution of India. The High Court was entitled to take notice of the conduct of the parties. It has been found by the High Court s of fact that the complainant did not approach the court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of CA No. 617/19 18 of 24 Harpreet Singh Kochar Vs. Kavinder Singh money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed, even no interest had been charged....."
23. The net result in the light of above dictum is that complainant in a case filed U/s. 138 NI Act has to prove the ingredients of said provision, beyond reasonable doubt. The presumptions U/s. 118 (a) and 139 NI Act do favour complainant but those presumptions are rebuttable. Accused can rebut those presumptions based on preponderance of probabilities. It is not required that in each and every case accused has to lead defence evidence for rebutting aforesaid presumptions. Accused can rebut the aforesaid presumptions on the basis of material brought on record by complainant.
24. Reverting back to the facts of present case, I find that case of rival parties, needs to be mentioned in brief.
25. The main grievance of accused, around which this appeal revolved, was that he was not given the opportunity to cross-examine complainant witness, by Ld. Trial Court. In the same breath, he claimed that Ld. Trial Court should have adopted the procedure as per Sec. 329 Cr.PC, since he was psychiatric and paralytic patient. I am dealing with the said aspect to start with.
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26. Trial Court record reveals that accused first appeared after summoning, before Ld. Trial Court on 07.11.2015. Since then, till the passing of impugned judgment on 31.08.2018 and order on sentence dated 01.11.2019, accused nowhere raised the plea that he is a person of unsound mind. Infact, order-sheets dated 16.12.2016, 18.08.2017 and 27.09.2017 revealed that wife of accused had appeared in the court. She also never claimed that accused was a person of unsound mind. On 16.12.2016 and 27.09.2017, adjournment was given by Ld. Trial Court on the ground that accused was suffering from fever. Infact, no documentary proof, in support of the said medical condition, was filed by wife of accused during trial. The mother of accused had appeared on 10.08.2018 but she also did not apprise the court that accused was suffering from any disease of unsoundness of mind. Accused himself appeared on various dates in person and he also never told Ld. Trial Court about his said medical condition. Accused was duly represented by a counsel of his choice and therefore, his counsel could have referred to Sec. 329 CrPC during course of trial. It was not done also. Fact of the matter remains that plea of unsoundness of mind, as raised by accused, during course of present appeal, is a new plea which accused has raised, without giving any reason, as to why that plea was not raised before Ld. Trial Court. The medical documents annexed with the appeal, include medical prescriptions. Those medical prescriptions and medicines bills, nowhere help the cause of accused. Infact, medical prescription of Mool Chand Medicity Hospital categorically note that accused was discharged from the hospital as he was becoming better gradually. There is another medical prescription in which in the column of 'history CA No. 617/19 20 of 24 Harpreet Singh Kochar Vs. Kavinder Singh and clinical findings' there was no reference to unsoundness of mind of accused. Therefore, ground of unsoundness of mind, raised by accused, is an afterthought and is without any basis. Impugned judgment and order on sentence, as such cannot be set aside based on non-application of Sec. 329 CrPC. That argument of accused accordingly, stands dismissed.
27. The second grievance of the accused is that he had right to cross-
examine complainant witness, which was not exercised by him as Ld. Trial Court did not permit him to do so. The said argument again is misplaced. Reason being, that as per Trial Court record, Ld. Trial Court had put notice u/sec. 251 CrPC, to accused on 22.09.2016. Matter was adjourned for filing of application u/sec. 145 (2) NI Act on 16.12.2016 when final opportunity was given to accused to file said application. On 17.03.2017, matter was again adjourned at request of accused for filing of said application, subject to cost. Thereafter, on 20.05.2017, which was the third date for filing of said application, Ld. Trial Court closed the opportunity of accused to cross-examine complainant witness. Those orders, were never challenged by accused and therefore, they have attained finality. Now, accused, by way of present appeal, cannot reopen the case, just like that, without any reason, for the purpose of cross-examining complainant witness. Infact, accused has nowhere explained in the grounds of appeal and in his application u/sec. 391 r/w sec. 311 CrPC and sec. 145 (2) NI Act, as to what prevented him from filing said application, earlier before Ld. Trial Court. The said application and grounds of appeal, therefore, are meritless. That CA No. 617/19 21 of 24 Harpreet Singh Kochar Vs. Kavinder Singh application u/sec. 391 r/w sec. 311 CrPC and sec. 145 (2) NI Act, accordingly, stands dismissed. It is trite to mention here that law does not help those persons who keep on sleeping over their own rights. Accused herein, simply slept over his own rights and therefore, he cannot get benefit, based on said conduct.
28. This brings me to the legality of the impugned judgment and order on sentence.
29. Case of complainant was categorical, to the extent that he had given loan of Rs. 5,50,000/- to accused, which had to be repaid back by accused alongwith interest @ 2% per month. Accused had given cheques in question Ex.CW1/1 and Ex.CW1/2, which were dishonoured as per cheque returning memos Ex.CW1/3 and Ex.CW1/4 respectively. Consequently, Notice Ex.CW1/5 was issued to accused on 25.07.2007. It was sent through UPC, Speed Post/ AD Cover vide Ex.CW1/6 to Ex.CW1/9. The said processes and factual matrix, clearly prove that ingredients of sec. 138 NI Act, were proved by complainant.
30. So far as accused is concerned, he had claimed in response to notice u/sec. 251 Cr.PC, that he had borrowed Rs. 10,00,000/- from complainant and his partner Paramjeet Singh, which he had repaid to complainant. Accused also claimed that a receipt was signed by complainant regarding receiving of said amount and he also claimed that he can examine Paramjeet Singh in his defence. Those facts, claimed by accused remained bald facts. Neither they were put to CA No. 617/19 22 of 24 Harpreet Singh Kochar Vs. Kavinder Singh complainant witness by way of cross-examination nor any defence evidence was led by accused based on them. Therefore, Ld. Trial Court rightly discarded the said probable defence.
31. So far as the issue of cheque in question being security cheques, is concerned, Ld. Trial Court referred to the case law of Credential Leasing and Credit Limited Vs. Shruti Investments & Anr, (2015) SCC Online DEL 10061. It was aptly referred and borne in mind by Ld. Trial Court while dismissing the said probable defence of accused.
32. Fact of the matter remains that presumption u/sec. 139 NI Act r/w sec. 118 NI Act were raised against accused when evidence was led by complainant. Those presumptions were not rebutted by accused by way of defence evidence or by way of cross-examination of complainant witness. Accordingly, impugned judgment needs no interference.
33. So far as order on sentence is concerned, Ld. Trial Court had passed the sentence that accused is to undergo simple imprisonment for three months and was also directed to pay compensation of Rs.7,70,000/- to complainant u/sec. 357(3) CrPC within one month from passing of said order. In default of paying the said compensation, accused shall have to undergo further sentence of six months of simple imprisonment. The said order on sentence, needs to be changed. Reason being, that offences u/sec. 138 NI Act, are quasi criminal in nature. In such like offences, recovery of cheque amount is an important aspect, which cannot be ignored. So, complainant in such like cases, is CA No. 617/19 23 of 24 Harpreet Singh Kochar Vs. Kavinder Singh basically interested in recovery of his money. Viewed from that perspective, I find that sending accused to imprisonment, at the very outset, will not be proper. The aspect of sending accused to imprisonment, in the given facts and circumstances of this case, would arise, only when accused fails to pay compensation of Rs. 7,70,000/- to complainant. So, impugned order on sentence, stands modified. It is hereby ordered that accused shall pay Rs. 7,70,000/- to complainant, within one month of passing of this order. In default of paying the said amount, accused shall undergo simple imprisonment for three months.
34. In view of the aforesaid appreciation and conclusion, present appeal stands dismissed. The amount of Rs. 154000/- which accused had deposited in Ld. Trial Court, pursuant to order of this court dated 13.12.2019, be released to complainant, within 10 days of receiving of this order by Ld. Trial Court. In case, none of the parties approach the Ld. Trial Court, then Ld. Trial Court shall issue court notice to both the parties, for compliance of this order.
[PRASHANT SHARMA]
ASJ-02, South-East/Saket/Delhi
21.03.2022
CA No. 617/19 24 of 24
Harpreet Singh Kochar Vs. Kavinder Singh