Delhi District Court
Prayagi Lal Yadav vs State (Govt. Of Nct Of Delhi) on 25 May, 2023
IN THE COURT OF MS. SHIVALI SHARMA,
ADDITIONAL SESSIONS JUDGE - 03
WEST DISTRICT, TIS HAZARI COURTS, DELHI
CNR No. DLWT01- 006365-2022
Crl. Appeal No. 142/2022
PS- Nangloi
U/s. 374 Cr. P. C.
IN THE MATTER OF:
Prayagi Lal Yadav
S/o Sh. Sumer Singh
R/o- 77, Tuwan Tilla,
Azadpur, Lalitpur, U.P.
9889253619
(Petitioner in JC).
.............APPELLANT
VERSUS
1. State (Govt. of NCT of Delhi)
Through SHO Police Station Nangloi
2. Sudesh Kumari
W/o Late Sh. Randhawa Singh
R/o H. No. 81, Extension-H,
Nangloi, New Delhi.
............RESPONDENTS
Date of Institution : 07.07.2022.
Date of Reserving Order : 10.05.2023
Date of Order : 25.05.2023
CRIMINAL APPEAL U/s. 482 Cr. P. C. ARISING OUT OF
ORDER/JUDGMENT OF CONVICTION DATED
11.03.2022 AND ORDER ON SENTENCE DATED
08.06.2022 PASSED BY LD, MM (NI-Act-02), (West), TIS
HAZARI COURTS, NEW DELHI.
CA No. 142/2022
Prayagi Lal Yadav Vs. Sudesh Kumari
PS Nangloi
Page No.1/51
1. The present appeal is filed against the order of conviction
dated 11.03.2022 passed by Ld. Trial Court whereby the
appellant/accused Prayagi Lal Yadav was convicted for offence
under Section 138 of Negotiable Instrument Act (hereinafter
referred to as N.I. Act) in CC No. 10489/2016 filed by
respondent/complainant Sudesh Kumari; and order on sentence
dated 08.06.2022 whereby the appellant/convict Prayagi Lal
Yadav was sentenced to simple imprisonment for a period of two
months and was also ordered to pay compensation of Rs. 32 lacs
to the complainant under section 357(3) Cr. P. C. In default of
payment of compensation further SI of 15 days was imposed.
2. As is evident, the respondent herein was the complainant
before Ld. Trial Court who had filed the complaint case under
Section 138 N.I. Act against the appellant herein who was the
accused before Ld. Trial Court. For the sake of convenience,
parties shall be referred to by the nomenclature before Ld. Trial
Court.
FACTS AS STATED IN THE COMPLAINT:
3. Brief facts of the case necessary for disposal of the present
appeal are that the complainant filed a complaint under Section
138 N. I. Act being CC No. 10489/2016 alleging therein that the
accused is a family friend of the complainant since 1978 i.e. from
the days when he was serving in Saudi Arabia and living with the
husband of the complainant Sh. Randhawa Singh (since
deceased). Sh. Randhawa Singh (since deceased) returned to
India in 1987 and expired in 2007 but the accused continued the
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PS Nangloi
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friendly relations with the complainant even after death of her
husband. During the lifetime of Sh. Randhawa Singh, he and
accused had applied for allotment of two Industrial Plots in the
Industrial Area, Chandera, Lalitpur, U.P. in 2005 and the plots
were allotted by District Industries Centre, Lalitpur, U.P.
However, due to some technical reasons, the plot in the name of
Sh. Randhawa Singh was cancelled.
4. In 2010, accused approached the complainant to start a
Small Scale Industrial Unit for manufacturing of fasteners/nut
bolt etc. on his industrial plot at Chandera in partnership. He
induced the complainant to pay money for starting the unit and
the complainant in association with Kanwar Singh and Somveer
gave a total sum of Rs. 21.57 lacs to the accused on different
occasions/dates through cheques as well as in cash. After taking
money from the complainant and his associates and also taking
loan from bank, accused constructed the building and purchased
machineries from Amritsar and set up the industrial unit at
Chandera. Accused also got drafted a partnership deed in the
name of the partnership firm M/s Chandervanshi Industries in
respect of the proposed industrial unit having four partners
namely accused Prayagi Lal Yadav (40% share), complainant
Sudesh Kumari (40% share), Somveer Singh (10% share) and
Kanwar Singh (10% share).
5. Before commencement of commercial production, accused
told complainant and her associates that no subsidy was available
in a partnership firm and in order to avail subsidy from
Government/Khadi Gramodyog, he got the firm registered with
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Khadi Gramodyog as a sole proprietorship concern representing
himself to be its sole proprietor. Loan was also obtained from the
bank by the accused in his single name and he informed the
complainant and her associates that partnership firm shall
continue to operate for the sake of investment and to share the
profits.
6. After commencement of commercial production, accused
started behaving with treating the complainant in such a manner
as if there was no partnership. He also told complainant that her
name and that of her associates exists no where in the records of
the government agencies and the bank. He further told the
complainant that the money invested by her and her associates
shall be paid to her as soon as possible.
7. In order to secure the interest safety of funds of the
complainant and her associates, the accused executed an
agreement dated 30.12.2011 of having received the money to the
tune of Rs. 16 lacs from the complainant, which is Ex.CW1/B.
He also gave a blank cheque bearing no. 229951 drawn on
Syndicate Bank, Lalitpur Branch, U. P. (Ex.CW1/C) and assured
to settle their dues at the earliest and further told that after final
settlement, the amount so settled will be paid by cheque or cash
to the complainant and her associates and the blank signed
cheque would be taken back.
8. Complainant met the accused and talked to him several
times in January and February 2012 for settlement and payment
of her dues. In one such meeting with the complainant on
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20.02.2012, at the place of the accused, he agreed to pay the
complainant and her associates, a sum of Rs. 21.57 lacs and
asked them to use the blank signed cheque (Ex.CW1/C) for Rs.
16 lacs and assured that the balance will be paid within 3-4
months. On 27.02.2012, as per instructions of the accused, the
cheque was deposited by the complainant in her account in
Punjab National Bank, Delhi but the same was returned unpaid
with the remarks "Insufficient Funds" vide cheque returning
advice dated 06.03.2012 (Ex.CW1/D). Complainant contacted
the accused who asked her to re-present the cheque in the first
week of May, 2012. The cheque was re-deposited as per the
advice of the accused but was again returned bank unpaid with
the remarks "Funds Insufficient" vide cheque returning memo
dated 07.05.2012 (Ex.CW1/E).
9. Accused was again contacted but he did not give any
satisfactory reply but rather threatened the complainant with dire
consequences. Accordingly, legal notice dated 17.05.2012
(Ex.CW1/F) was issued to the accused and sent vide postal
receipts (Ex.CW1/G) (colly.) calling upon the accused to make
the payment against the dishonored cheque. Despite service of
legal notice vide AD card (Ex.CW1/H), accused failed to comply
with the same. Hence, the present complaint under Section 138
N. I. Act was filed.
10. Pre-summoning evidence was led and the accused was
directed to be summoned vide order dated 05.01.2013. Accused
finally appeared before the court on 28.11.2013 and was enlarged
on court bail.
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PS Nangloi
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PLEA OF DEFENCE:
11. Notice was framed under Section 251 Cr. P. C. and plea of
defence of the accused was recorded on 30.07.2014. In his plea
of defence, accused admitted that cheque (Ex.CW1/C) was
bearing his signatures but stated that it was not filled up by him.
He was having business transaction with the complainant and for
the supply of machinery by the complainant he had issued the
cheque in question. He had made the payment for the machinery
to the complainant. He had not received any legal demand notice
issued by the complainant. He does not owe any liability towards
the complainant.
12. Accused filed an application under Section 145(2) N. I.
Act alleging therein that there were business relations between
the complainant and accused for which the settlement of accounts
was pending. Since, the account was not settled between them,
therefore, he gave a blank cheque to the complainant with the
understanding that if, after settlement of accounts, the accused
had to pay any amount to the complainant, he would make the
said payment and the complainant would return the cheque. On
settlement of account, it was found that it was the complainant
who had to make payment to the accused. However, the
complainant neither made the payment nor returned the cheque in
question given to her as security. Rather, with malafide
intentions, she filled up the cheque and presented the same and
got it dishonored despite the fact that the accused was not liable
to pay any amount to her. No notice was issued by the
complainant to him demanding the amount due after settlement
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of account. The cheque in question has been misused and forged
by the complainant. Accordingly, permission was sought for
cross examining the complainant.
13. The application was allowed vide order dated 28.08.2014.
COMPLAINANT'S EVIDENCE:
14. In support of her case, complainant examined herself as
CW1 and stated and reiterated on oath the contents of her
complaint in her affidavit Ex.CW1/A and was cross examined on
behalf of the accused. She relied upon the following documents:-
(i). Ex.CW1/B: Agreement between complainant and accused
dated 30.12.2011.
(ii). Ex.CW1/C: The cheque in question bearing no. 229951
dated 27.02.2012 for a sum of Rs. 16 lacs.
(iii). Ex.CW1/D: Documents related to dishonor of the cheque in
April 2012.
(iv). Ex. CW1/E: Cheque Returning Memo dated 07.05.2012.
(v). Ex.CW1/F: Legal Notice dated 17.05.2012.
(vi). Ex.CW1/G: Postal Receipts in respect of legal notice.
(vii). Ex.CW1/H: AD card in respect of legal notice.
15. Complainant/CW1 also produced certain documents
during her cross examination. Ex.CW1/X is the copy of the pass
book of her bank account no. 9015/2010126041 maintained with
Syndicate Bank, Nangloi Branch for the period 19.08.2010 to
17.08.2011. Ex.CW1/Y is the photocopy of the pass book of her
bank account number 26280100009685 maintained with Bank of
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Baroda, Lalitpur Branch, U.P. for the period 24.06.2011 to
24.10.2011.
16. One Kanwar Singh Rana, nephew of the complainant,
has been examined as CW2 on behalf of the complainant. He
deposed that he knew the accused Prayagi Lal Yadav as he was
working with his maternal uncle in Saudi Arabia and used to visit
his maternal uncle's house at Nangloi. Prayagi Lal Yadav and his
maternal uncle Late Sh. Randhawa Singh were allotted two
industrial plots at Chandera Industrial Area, Lalitpur, U.P. The
plot in the name of his maternal uncle was cancelled due to some
political influence. Thereafter, Prayagi Lal Yadav proposed to
complainant Sudesh Kumari, him and Sh. Somveer Singh to start
a factory at his plot. They collected around Rs. 22-23 lacs and
handed over to Prayagi Lal Yadav in cash as well as through
Bank on various occasions. They also deposited installments for
the plot of Prayagi Lal Yadav. A factory was constructed on the
plot of Prayagi Lal Yadav by spending the said money.
Thereafter, their neighbor revealed that accused Prayagi Lal
Yadav referred to them as only friends and not as partners in the
said factory before other persons. Accused Prayagi Lal Yadav
also started misbehaving with them.
17. On 30.12.2011, accused Prayagi Lal Yadav told them that
complainant Sudesh Kumari was widow of his friend and he can
only return her amount. Thereafter, he handed over one cheque of
Rs. 16 lacs to Sudesh Kumari on 30.12.2011 and agreement was
also executed between them. Accused executed the cheque in
question to return the part invested amount by complainant in the
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PS Nangloi
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said factory.
18. CW2 was duly cross examined on behalf of the accused
Prayagi Lal Yadav. During his cross examination, he produced
photocopy of the passbook of his bank account no.
3073000101275023 maintained with Punjab National Bank,
Nangloi Branch which is Ex.CW2/A. He also produced
photocopy of passbook of his bank account bearing no.
87552010010027 maintained with Syndicate Bank which is
Mark X. He produced a letter dated 26.04.2011 issued by PNB,
Lalitpur Branch showing the particulars of two demand drafts
favoring M/s Guru Nanak Machine Tools which is Ex.CW2/B.
He also produced one bill produced by Transport Company dated
02.06.2011 for a sum of Rs. 11,600/- which is Ex.CW2/C.
Ex.CW2/D is one Toll Tax Receipt bearing no. 0839934 dated
03.06.2011. Ex.CW2/E is one bill given on plain paper. Mark Y
and Mark Z are photocopies of two invoices dated 02.06.2011
and 11.09.2011 issued by Guru Nanak Machine Tools.
19. No other witness was examined by the complainant.
STATEMENT OF ACCUSED:
20. Statement of accused was recorded on 24.04.2018 wherein
all the incriminating evidence that came on record was put to
him. Accused Prayagi Lal Yadav stated that the cheque in
question bears his signatures but he had not filled up the other
particulars in the same. He was having business transaction with
the complainant and for the supply the machinery, he had issued
the cheque in question signed in blank at the request of the
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PS Nangloi
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complainant to show the same to her sister-in-law. He had made
payment for the machinery to the complainant through cheques
for which he is having documentary proof. The complainant has
filed a false complaint against him by misusing the said cheque.
He does not owe any liability towards the complainant qua the
cheque in question. Rather, the complainant has to give money to
him.
DEFENCE EVIDENCE:
21. Accused examined six witnesses in support of his defense.
22. After taking permission of the court under Section 315 Cr.
P. C., accused Prayagi Lal Yadav examined himself as DW1.
He deposed that he is the owner of the land of factory situated at
Chandera, Lalitpur, U. P. The building of the factory was also
constructed by him through his funds and he has all the receipts
thereof.
23. Husband of the complainant was his fast friend. He had
also booked one plot at Chandera, Lalitpur, U.P. He and the
husband of the complainant were working in the same factory at
Saudi Arabia. In April 2009, they both returned to India. Husband
of the complainant has already expired. He and family members
of complainant are on visiting terms since last about 40 years.
24. The complainant told him that her nephew Kanwar Singh
Rana was not doing anything and asked him to provide him with
some work. One industrial plot was also allotted to husband of
complainant but due to some technical issues, the allotment was
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PS Nangloi
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cancelled. Thereafter, nephew of the complainant kept pursuing
him for starting a service center at his plot at Chandera, Lalitpur,
U.P. Later on, he told him that business of service centre required
huge investment and asked him to start the business of iron nails
(Keel). Kanwar Singh Rana also assured him that a less
investment was required in the said business. On advice of
Kanwar Singh Rana, he took a loan of Rs. 25 lacs from PNB
which was also repaid by him. Thereafter, Kanwar Singh Rana
i.e. nephew of the complainant asked for a cheque for more than
Rs. 18 lacs to purchase the required machinery but he objected
stating that the cost of the machine was about Rs. 1 lac. Kanwar
Singh Rana told him that he would pay the cost of the machine
through his cheque and take back the extra amount from the
vendor. He handed over the cheque of more than Rs. 18 lacs and
also paid an amount of more than Rs. 10 lacs for purchase of
machine/goods/factory.
25. Complainant in connivance with his nephew Kanwar
Singh Rana got prepared a partnership deed showing the shares
as 40% of complainant, 40% his and 10% each of Kanwar Singh
Rana and Somveer. This partnership deed was prepared without
his knowledge from Jhansi. Complainant and his nephew were
not having any money and he had paid money to the
complainant. He had to pay only Rs. 2 lacs to the complainant
which has already been repaid. He does not owe any liability
towards the complainant.
26. At request of complainant and Kanwar Singh Rana, he
paid Rs. 12 lacs regarding the purchase of land by sister-in-law of
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the complainant. Complainant took Rs. 16 lacs from her sister-in-
law to pay to the owner of the land but retained the same with
her. Complainant asked him to give one blank signed cheque to
show to her sister-in-law. He handed over the same to the
complainant in good faith. However, after about five months, he
received documents regarding bouncing of the said cheque. He
contacted the complainant and questioned her in this regard. She
asked him to give Rs. 32 Lacs for withdrawing the case. Then, he
came to the Court. He does not owe any liability towards the
complainant and complainant had misused his cheque which was
given without any liability.
27. He relied upon the certified copy of the complaint filed by
him against complainant Kanwar Singh Rana before Ld. CJM
Lalitpur, UP which is Ex. DW-1/A.
28. He was duly cross-examined on behalf of the
complainant.
29. DW-2 Sh. Shivendra Mishra is a summoned witness
from SBI, Lalitpur who produced the certified copy of statement
of account no. 31431292447 in the name of Prayagi Lal Yadav
which is Ex. DW-2/A.
30. He was not subjected to cross-examination.
31. DW-3 Sh. Nikhil Kumar Srivastav is a summoned
witness from Syndicate Bank, Lalitpur who produced the
certified copy of statement of account no. 87552010009744 in
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the name of Prayagi Lal Yadav which is Ex. DW-3/A.
32. He was not subjected to cross-examination.
33. DW-4 Sh. Aditya Goyal is a summoned witness from
PNB Lalitpur who produced the certified copy of statement of
account no. 0299000103292621 in the name of Prayagi Lal
Yadav which is Ex. DW-4/A.
34. He was not subjected to cross-examination.
35. DW-5 Sh. Salman Baig is a summoned witness from
HDFC Bank, Amritsar branch who produced the certified copy of
statement of account no. 08562020001099 in the name of Guru
Nanak Machine Toos which is Ex. DW-5/A. He also produced
copy of account opening form of Guru Nanak Machine Tools
which is Mark A.
36. He was not subjected to cross-examination.
37. DW6 Sh. Ram Babu Yadav is a witness to the agreement
Ex.CW1/B. He identified his signatures at point A on agreement
Ex.CW1/B. He deposed that accused Prayagi Lal Yadav gave
blank signed cheque in his presence. The accounts were not
settled and it was agreed that if the amount was found to be
payable to complainant then it will be paid to her and if the
amount was found to be payable to the accused, then it would be
paid to him. Before the agreement, complainant Sudesh Kumari
had asked money from the accused and accused told her that he
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PS Nangloi
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had already given more than sufficient amount to her. Then
complainant Sudesh Kumari asked for blank signed cheque to
show to some other person as she had to pay some amount to that
person. She also assured that she would return the said cheque
after settlement of accounts. The cheque Ex.CW1/C was given
by the accused in the year 2011.
38. He was duly cross examined on behalf of the complainant.
39. No other witness was examined on behalf of the accused.
IMPUGNED ORDER:
40. After appreciating the law under section 138 NI Act and
considering the overall evidence on record, Ld. Trial Court
convicted the accused for offence under Section 138 N.I Act vide
impugned order and judgment dated 11.03.2022. Ld. Trial Court
held that the accused had failed to rebut the presumption raised
under Section 118(a) r/w Section 139 NI Act through
preponderance of probabilities by raising a probable defence. He
failed to prove his defence and the defence put forth by him can
not be termed as a plausible defence. The presumption of legal
liability under section 118(a) r/w section 139 N.I. Act has gone
unrebutted and the complainant has successfully proved the basic
ingredients of the offence under section 138 N. I. Act.
41. After hearing the parties on the point of sentence vide
impugned order dated 08.06.2022, Ld. Trial Court sentenced the
accused to SI of two months and directed him to pay
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PS Nangloi
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compensation to the complainant for an amount of Rs. 32 lacs
under section 357(3) Cr. P. C. In default of payment of
compensation, further SI of 15 days was imposed.
42. The facts that weighed with Ld. Trial Court at the time of
passing of order on sentence included the pendency of the
compliant case since 2012, the old age of the convict i.e. 86
years, his medical condition and his clean past antecedents. The
nature of the offence was also considered by Ld. Trial Court at
the time of passing of order on sentence.
GROUNDS FOR APPEAL/ARGUMENTS OF
APPELLANT/ACCUSED:
43. The grounds for challenging the impugned judgment and
order on sentence as mentioned in the present appeal are as
under:-
i) That the impugned judgment/order of conviction and sentence
passed by Ld. Trial Court are contrary to law and facts on record
and have resulted in gross miscarriage of justice.
ii) That Ld. Trial Court had failed to consider that the initial onus
to prove that the accused is not liable to pay any amount lies on
him, however, if he, through his evidence or from the testimony
of the complainant and his cross examination proves that prima
facie, he is not liable to pay any amount to the complainant, the
onus shifts on the complainant to prove his or her case beyond
any reasonable doubts.
iii) That the Ld. Trial Court had failed to consider the material
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contradictions in the case of the complainant which goes to the
root of the case and makes the whole case of the complainant
highly doubtful.
iv) That the Ld. Trial Court had failed to appreciate that the
prosecution has to stand on its own legs and once the
presumption has been rebutted, the prosecution has to prove its
case beyond any reasonable doubt.
v) That the Ld. Trial Court had failed to take into account that
complainant has miserably failed to prove that she had paid a
sum of Rs. 21.57 lacs to the accused either through her testimony
or through any other witness. She has not stated any dates or the
mode by which the said payment was made by her to the
accused. Even the bifurcation of the said amount between her,
Kanwar Singh Rana and Somveer has not been given by her.
vi) That the Ld. Trial Court had failed to appreciate that the
complainant had failed to prove on record her capacity to
advance Rs. 21.57 lacs to the accused. She deliberately did not
produce the relevant records/her passbooks to support her
contention in this regard despite her admission that they were in
her possession.
vii) That the Ld. Trial Court had failed to appreciate that the
complainant had admitted during her cross examination dated
10.09.2014 that she had received a sum of Rs. 7.5 lacs from Guru
Nanak Machine Tools which admission supports the case of the
accused that the complainant and her associates used to get
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PS Nangloi
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amount secretly from M/s. Guru Nanank Machinery Tools to
whom the accused used to pay the amount for the machinery
purchased at a higher amount as per the bills raised in connivance
with the complainant and her associates.
viii) That the Ld. Trial Court had failed to appreciate that the
accused was able to rebut the presumption from the testimony of
the complainant and her cross examination itself to the effect that
there was no legally recoverable debt against him.
ix) That the Ld. Trial Court had failed to consider the judgments
relied upon by the accused.
x) That the sentence of imprisonment and compensation imposed
by Ld. Trial Court is harsh keeping in view his age and various
ailments of the accused.
44. Ld. counsel for the appellant has argued in line with the
grounds of appeal. He has filed written arguments wherein it is
also alleged that Ld. Trial Court has not appreciated the written
arguments and judgments filed by him before Ld. Trial Court.
Although, para 37 of the impugned judgment gives reference to
the citations relied upon by the appellant/accused, however, it is
nowhere mentioned in the impugned judgment as to whether the
said citations are applicable or not to the facts of the present case.
Ld. Trial Court has not discussed any reasons for coming to the
conclusion that the appellant had failed to rebut the presumption
under Section 139 N.I. Act.
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45. In fact, in the facts and circumstances of the case, Ld. Trial
Court could not have raised the presumption under Section 139
N.I. Act as admittedly, as per the written agreement dated
30.12.2011 between the parties relied upon by the complainant
herself, there was no legally recoverable debt at the time of
handing over the cheque in question to the complainant so as to
attract Section 138 N.I. Act. It is submitted that as per admitted
case of the complainant in terms of agreement dated 30.12.2011
at the time when cheque in question was issued, the liability was
not assessed and quantified but was to be assessed in future.
Therefore, the blank cheque in question was not given for any
existing liability and the same was to be returned by the
complainant after the amount was assessed and quantified. The
cheque in question was not to be used by the complainant which
she did malafidely and therefore, the cheque in question cannot
be the subject matter of a complaint under Section 138 N.I. Act.
Reliance in this regard is placed upon the decision in Ravi
Kumar D. Vs. State of Delhi & Anr. Crl. MC. No. 4378/2009
order dated 01.03.2011.
46. It is also stated that Ld. Trial Court had also not considered
the contradictions in the case of the complainant which have
come on record during her cross examination. Ld. Trial court has
failed to appreciate the falsity of the evidence led by the
complainant which is evident from the testimonies of CW1 and
CW2.
47. Ld. counsel for the appellant has relied upon the following
citations in support of his arguments:-
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PS Nangloi
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(i) Ravi Kumar D. Vs. State of Delhi & Anr. Crl. MC. No.
4378/2009 order dated 01.03.2011 & Crl. M.A. 14989/2009
(stay)
(ii) M/s. Indus Airways Pvt. Ltd. Vs. M/s. Magum Aviation Pvt.
Ltd. & Anr. Crl. Appeal No. 839 of 2014 arising out of SLP
(crl.) No. 9752 of 2010.
(iii) M/s. Balaji Seafoods Exports Vs. Mac Industries Ltd. S.
Pichalah, {1999 (1) CTC 6}
(iv) Basalingappa Vs. Mudibasappa Criminal Appeal No. 636
of 2019 (arising out of SLP (Crl.) No. 8641/2018).
(v) Rohitbhai Jivanlal Patel Vs. State of Gujarat & Anr.
Criminal Appeal No. 508 of 2019 (arising out of Special Leave
Petition (Crl.) 1883 of 2018).
(vi) Prem Singh Rohila Vs. State of Haryana and Anr. In the
High Court of Punjab & Haryana dated 02.03.2022.
(viii) Rishi Kesh Singh & Ors. Vs. The State AIR 1970 All 51,
1970 Crl. J. 132.
48. Relying upon these citations, it is submitted by Ld.
Counsel for the appellant/accused that the impugned judgment of
conviction dated 11.03.2022 and consequent order on sentence
dated 08.06.2022 are bad in law and should be set aside and
accused should be acquitted for offence under Section 138 N. I.
Act.
49. It is also submitted that order on sentence dated
08.06.2022 is very harsh considering the old age and medical
condition of the appellant/accused and needs to be appropriately
modified in case the conviction against the appellant/accused
CA No. 142/2022
Prayagi Lal Yadav Vs. Sudesh Kumari
PS Nangloi
Page No.19/51
Prayagi Lal Yadav is upheld.
ARGUMENTS ON BEHALF OF
RESPONDENT/COMPLAINANT.
50. Per contra, respondent/complainant has vehementally
argued the appeal and supported the impugned orders in his oral
arguments as well as written arguments placed on record. It is
submitted that the there is no illegality or infirmity in the
impugned judgment of conviction dated 11.03.2022. All the
grounds taken in the appeal by the appellant are false and
frivolous and without any merit. It is submitted that the
complainant was not required to prove her financial capacity to
advance the loan to the accused unless the same was questioned
by the accused. Moreover, the admitted execution of agreement
(Ex.CW1/B) clearly demolishes the argument of the Ld. Counsel
for the appellant/accused questioning the capacity of the
complainant to hand over the amount to the accused. Ld. Trial
Court has duly appreciated the evidence produced on record by
the parties to come to the conclusion that the accused had failed
to discharge the burden upon him for rebutting the presumption
of existence of a legally recoverable debt under Section 139 of
N.I. Act.
51. Ld. Trial Court has duly considered the judgments relied
upon by the accused and specifically mentioned in paragraph 37
of the impugned judgment dated 11.03.2022 that the said
judgments are of no help to the accused. Perusal of the judgments
in Ravi Kumar D's case and Prem Kumar Rohilla's case
(Supra) clearly shows that they are based on a different set of
CA No. 142/2022
Prayagi Lal Yadav Vs. Sudesh Kumari
PS Nangloi
Page No.20/51
factual matrix and are clearly not applicable to the facts of the
present case and have thus, not been relied upon by Ld. Trial
Court.
52. The accused has miserably failed to prove the various
contradictory defenses taken by him during the course of trial by
leading any cogent evidence. Accordingly, Ld. Trial Court has
duly held that he failed to bring on record any plausible defence
which might result in rebutting the presumption raised in favour
of the complainant under Section 139 N. I. Act.
53. Ld. counsel for the complainant/respondent had relied
upon the following citations in support of his arguments:-
(i). Ramesh Kumar Vs. State Bank India & Anr. 2022 Live Law
(HP) 26;
(ii). M.M.T.C. Ltd. & Anr. Vs. Medchl Chemicals and Pharma
(P) Ltd. & & Anr. reported in (2002) 1 SCC 234;
(iii). Subrata Bose Vs. Mithu Ghosh, CRA 658 of 2018 2022
Live Law (Cal) 334;
(iv). APS Forex Services Pvt. Ltd. Vs. Shakti International
Fashion Linkers and Ors. AIR 2020 SC 945;
(v). Suresh Chandra Goyal Vs. Amit Singhal on 14.05.2015
Crl. L. P. 706/2014;
(vi). Sumit Bhasin Vs. State of NCT of Delhi & Anr. Crl. M.C.
296/2021 date Judgment/order: 10.03.2021;
(vii). Oriental Bank of Commerce Vs. Prabodh Kumar Tewari
Crl. Appeal No. 1260/2022;
(viii). Mandvi Co. Op. Bank Ltd. Vs. Nimesh B. Thakore, AIR
2010 SC 1402;
CA No. 142/2022
Prayagi Lal Yadav Vs. Sudesh Kumari
PS Nangloi
Page No.21/51
(ix). Harish Sehgal Vs. State & Anr. Citation: 2022 Live Law
(Del) 470.
54. Relying upon these judgments, it is submitted that there is
no merit in the present appeal. The impugned judgment of
conviction dated 11.03.2022 is a well reasoned and detailed
judgment which does not require any interference from this
court. Accordingly, it is prayed that the judgment of conviction
dated 11.03.2022 be upheld.
55. As regards the order on sentence dated 08.06.2022, it is
submitted that the sentence passed against the appellant/convict
should be enhanced seeing his conduct. The sentencing policy in
any particular case can be either deterrent or compensatory
policy. Although, the Apex Court has opined that in cases under
Section 138 N. I. Act, the compensatory policy of sentencing is
more appropriate. However, in appropriate cases, where conduct
of the accused so demands, serious view can be taken by the
courts and deterrent theory of sentencing can be applied. It is
submitted that in the present case, the complaint is pending
before the Ld. Trial Court since 2012 and the accused/appellant
made every possible effort to delay the matter as is evident from
the Trial Court Record. After his service, accused did not appear
before the court on 07.08.2013 as well as 02.09.2013. He finally
appeared before the court on 28.11.2013 when the cost was
imposed upon him. Thereafter, he kept on filing application for
waiver of cost on which three further dates were wasted. Finally,
notice could be framed only on 30.07.2014 and the matter was
adjourned for PE. However, accused took various adjournments
CA No. 142/2022
Prayagi Lal Yadav Vs. Sudesh Kumari
PS Nangloi
Page No.22/51
for cross examining the witnesses due to which costs were also
imposed upon him on various occasions. Many a times he failed
to appear before the court because of which NBWs were issued
against him on various occasions. Accused also took various
adjournments for leading DE and finally arguing the matter and
because of his conduct, the matter could be finally decided after a
delay of about 10 years.
56. It is also submitted that although, it is correct that the
accused is a senior citizen but the same is true for the
complainant as well and the accused has failed to prove on record
any medical documents to show that he is not medically fit or is
unwell. Considering the overall facts of the case and the
malicious and malafide conduct of the accused/appellant, a
higher degree of punishment should be awarded to him.
Accordingly, it is prayed that the sentence imposed upon the
accused vide impugned order on sentence dated 08.06.2022 be
appropriately enhanced.
57. The respondent herein has also filed a separate revision
petition being CR No. 237/2022 for enhancement of the sentence
imposed upon the accused/appellant herein vide impugned order
on sentence dated 08.06.2022 on the same grounds.
FINDINGS:
58. I have heard the submissions made and carefully perused
the record. The citations relied upon by both the parties as well as
written arguments have been also carefully perused.
CA No. 142/2022
Prayagi Lal Yadav Vs. Sudesh Kumari
PS Nangloi
Page No.23/51
59. Perusal of the impugned judgment and order of conviction
dated 11.03.2022 shows that Ld. Trial Court found the parties to
be at variance only on two issues. Firstly, whether the accused
has received the legal demand notice and secondly, whether the
cheque in question was issued in favour of the complainant to
discharge the legal liabilities of the accused to pay the amount of
Rs. 16 lacs.
60. Regarding the service of the legal demand notice, relying
upon the judgment of the Apex Court in CC Alavi Haji Vs.
Palapetty Muhammed & Ors (2007) 6 SCC 555, Ld. Trial Court
opined that this claim of the accused for acquittal is not
sustainable in the eyes of law. This finding of Ld. Trial Court has
not been challenged by the appellant/accused in the present
appeal and in thus, not being discussed herein.
61. Regarding the existence of legally enforceable debt or
liability, Ld. Trial Court observed in paragraph no. 27 of the
impugned judgment that it was admitted by the accused that the
cheque in question was signed by him and drawn from his
account. Thus, presumption of cheque in question having been
issued in discharge of legally recoverable debt and drawn for
lawful consideration arises under Section 118 (a) and Section
139 of the N. I. Act. Thereafter, Ld. Trial Court proceeded to
examine whether the accused had discharged the burden upon
him to rebut the presumption existing in favour of the
complainant. After considering the defenses put-forth by the
accused, Ld. Trial Court gave a finding that the same did not
inspire the confidence of the court and the accused had failed to
CA No. 142/2022
Prayagi Lal Yadav Vs. Sudesh Kumari
PS Nangloi
Page No.24/51
prove his defence and rebut the presumption of existing legally
recoverable liability in favour of the complainant even on the
scale of preponderance of probabilities. Resultantly, the accused
was held guilty and was convicted for offence under Section 138
N. I. Act. It is this finding of Ld. Trial Court by which the
appellant/accused is aggrieved and has challenged in the present
case.
62. It is also the grievance of the appellant that although the
Ld. Trial Court had mentioned the judgments relied upon by him
in paragraph no. 37 of the impugned judgment that are: M.S.
Narayan Menon @ Mani Vs. State of Kerala Appeal (Crl.) 1012
of 1999, Ravi Kumar D Vs. State of Delhi and another,
Basalingappa Vs. Mudibasappa (2019) 5 SCC, However, these
citations are not discussed anywhere in the impugned judgment.
63. Before appreciating the reasoning given by the Ld. Trial
Court while deciding the second ingredient as discussed above, it
is important to go through the provisions as contained in Section
138 and 139 NI Act.
"138. Dishonor 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
CA No. 142/2022
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PS Nangloi
Page No.25/51
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 or 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 (reduced to three
months w.e.f. 01.04.2012 by RBI notification)*
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, make 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 failed 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).
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."
64. It is amply clear from the above provisions that the
presumption under Section 139 of NI Act is a rebuttable
presumption and the accused issuing the cheque is at liberty to
prove to the contrary. Reliance in this regard is placed upon the
CA No. 142/2022
Prayagi Lal Yadav Vs. Sudesh Kumari
PS Nangloi
Page No.26/51
decision of the Apex Court in Laxmi Dyechem Vs. State of
Gujrat & Ors. Criminal Appeal Nos. 1870-1909 of 2012
(Arising out of S.L.P. (Crl.) No. 1740-1779 of 2011).
65. Under section 139 of NI Act, there is legal presumption
that the cheque was issued for discharging an antecedent liability
and that presumption can be rebutted only by the person who
drew the cheque. The presumption is obviously in favour of the
holder of the cheque and is only for casting the burden of proof
as to who should advance evidence in a case. It is open to any of
the accused to adduce evidence to rebut the said presumption. So
the burden of proof to rebut the presumption is on the accused
and the evidence available on record will have to be appreciated
by bearing in mind this fact regarding burden of proof.
66. Section 139 NI Act does not draw a distinction regarding
the stage at which the presumption has to be drawn. It simply
states that unless the contrary is proved, it shall be presumed that
the holder of the cheque received the same for discharge of a debt
or other legal liability.
67. In Bharat Barrel and Drum Mfg. Co. Vs. Aminchand
Pyarelal (1999) 3SCC 35, while interpreting Section 118(a) of
N.I . Act, the Apex Court opined
"12. Upon consideration of various judgments
as noted herein above, the position of law
which emerges is that once execution of a
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
CA No. 142/2022
Prayagi Lal Yadav Vs. Sudesh Kumari
PS Nangloi
Page No.27/51
prove the non-existence of consideration by
raising a probable defense. 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
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 the consideration can either be
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 to prove 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 the 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."
68. In K. Prakashan Vs. P. K. Surenderan (2008) 1 SCC
258, the Apex court observed that
" The Act raises two presumptions: firstly,
in regard to the passing of consideration as
contained in Section 118(a) and secondly, a
presumption that the holder of cheque receiving
the same of the nature referred to Section 139
discharged in whole on in part in any debt or
any liability. Presumptions both under section
118 (a) and 139 are rebuttable in nature.
CA No. 142/2022
Prayagi Lal Yadav Vs. Sudesh Kumari
PS Nangloi
Page No.28/51
Having regard to the definition of terms proved
and disproved as contained in Section 3 of the
Evidence Act as also the nature of the said
burden upon the prosecution viz a viz the
accused, it is not necessary that the accused
must step into the witness box to discharge the
burden of proof in terms of the aforementioned
provision.
It is further more not in doubt or dispute
that whereas the standard of proof so far as the
prosecution is concerned is proof of guilt
beyond all reasonable doubt; the one on the
accused is only mere preponderance of
probabilities."
69. Thus, it is a settled law that presumptions under Section
118 (a) and Section 139 of N I Act are rebuttable presumptions.
The burden of proof lies on the accused. The standard of proof
required for rebutting the presumption is not as strict as is
required to establish a criminal liability and would get discharged
on the basis of preponderance of probabilities. The rebuttal does
not have to be conclusively established rather such evidence in
support of defence has to be adduced before the court that the
court either believes the defence to exist or considers its
existence to be reasonably probable. The presumption can also be
rebutted without support of any direct evidence from the accused
but from the case set out by the complainant himself i.e. from the
averments made in the complaint, the case set out in the statutory
notice and the evidence adduced by the complainant during trial.
It is also a settled law that once the presumption stands rebutted,
the complainant is required to prove his case against the accused
beyond any reasonable doubt. This is based on the cardinal
principle of criminal jurisprudence that an accused is presumed
to be innocent until proved guilty beyond any reasonable doubt.
CA No. 142/2022
Prayagi Lal Yadav Vs. Sudesh Kumari
PS Nangloi
Page No.29/51
70. Coming to the facts of the present case, the prime
grievance of the appellant/accused is that Ld. Trial Court had
wrongly raised the presumption under Section 138 NI Act
although, the facts of the case were not sufficient for drawing the
said presumption as admittedly, at the time of issuance of the
cheque, there was no existing legally recoverable liability against
the accused. In this regard, accused has relied upon the
agreement between the parties dated 30.12.2011 which is proved
by complainant herself as Ex.CW1/B. Before proceeding further,
it would be apposite to carefully peruse the agreement dated
30.12.2011 which is reproduced herein under for the sake of
convenience:-
अनन बबध पततर
हम कक परययगगलयल ययदव पप ततर शतरग सप ममम र कसस हस कनवयसग
77, तप वन टगलय आजयदपप रय, लकलतपप र कय हह मप झम इस अनप बस ध पततर मम
पतरथम पक कम नयम सम समबबकधत ककयय गयय हह एवस शतरगमतग सप दम श
कपमयर पतनग सव. शतरग रस धयवय कसस हस कनवयकसनग 81, एकसटम शन न०-2,
नयस गलबई, कदललग कग हस ह मप झम इस अनप बस ध पततर मम दतकवतगय पक कम नयम
सम समबबकधत ककयय गयय हह ।
वववदत हह वक मन झ पतरथम पकककर कक दकरक अपनक वयकपकर
हक तत रपयहब कक धनरकवश कक आवशयकतक थक इसवलयक मन झ पतरथम पक कक
दकरक दतववतकय पकककर सक अलग अलग वतवथयहब मम कनछ बब क कक मकधयम
सक एवब कनछ नकद धनरकवश लगभग 16,00,000-00 रपयक पतरकपत वकयक
गयक हह तथक इस धनरकवश कह अपनक वयकपकर मम लगकयक गयक हह । चहसकक
हम लबगग कम लम न दम न कय अभग कहसयब ककतयब नहगस हग पययय हह इसकलयम
दतकवतगय पककयर कग धनरयकश कग सप रकय कम कलयम यह अनप बसध पततर
कलकपबद ककयय जय रहय हह । तथय अभग मप झ पतरथम पककयर कम दयरय
दतकवतगय पककयर कब एक बलम क चम क सस खयय 229951 कसस डगकमट बब क शयखय
लकलतपप र कदयय जय रहय हह । बयद मम कहसयब ककतयब हबनम पर जब भग
धनरयकश कनकलम गग उस धनरयकश कब मप झ पतरथम पककयर कम दयरय
दतकवतगय पककयर कब अदय करम गम तथय इस चम क कब पतरथम पक कम दयरय
दतकवतगय पककयर सम पतरयपत कलयय जययम गय। चहसकक भकवषय मम कबई कववयद
न हब इसकलयम यह अनप बस ध पततर कलख कदयय तथय अपनम अपनम हसतयकर
करकम इस अनप बसध पततर कग महल पतरकत दतकवतगय पककयर नम एवस इस
अनप बस ध पततर कग छययय पतरकत मप झ पतरथम पक नम पतरयपत कर लग सनद
CA No. 142/2022
Prayagi Lal Yadav Vs. Sudesh Kumari
PS Nangloi
Page No.30/51
रहम वकत जररत पर कयम आवम । कदनयसक 30-12-2011, सथयन लकलतपप र।
हसतयकर गवयहन :- हसतयकर पतरथम पक:-
_________Sd_____________
1. ________Sd__________
हसतयकर दतकवतगय पक
:-
2. ______Sd___________
__________Sd____________
71. In addition to this agreement, the pleadings of the
complainant in this regard are relevant. As per her complaint and
notice Ex.CW1/F, accused had borrowed a sum of Rs. 21.57 lacs
from her, Sh. Kanwar Singh and Sh. Somvir on different dates
and occasions through cheques as well as cash. After failure of
the accused to repay the loan amount or to provide the benefit of
their share in the partnership firm to the complainant, various
negotiations had taken place between the parties and on
30.12.2011, the accused told the complainant that he shall return
the money invested by her and her associates as soon as possible
and to secure interest/safety of funds of the complainant and her
associates, he executed an agreement dated 30.12.2011 admitting
that he had received a sum of Rs. 16 lacs from the complainant
and issued a blank signed cheque bearing no. 229951 drawn on
Syndicate Bank, Lalitpur, Delhi and assured to settle their
disputes at the earliest and make the payment after which the
blank cheque would be taken back.
72. In paragraph no. 10 of the complaint as well as legal notice
Ex. CW1/F, it is stated that complainant met the accused in
CA No. 142/2022
Prayagi Lal Yadav Vs. Sudesh Kumari
PS Nangloi
Page No.31/51
January and February, 2012 for settlement and payment of dues.
In one such meeting on 20.02.2012, at the place of the accused,
accused agreed to pay a sum of Rs. 21.57 lacs to complainant and
her associates and asked them to use the blank cheque no.
229151 given to them at the time of agreement dated 30.12.2011
for Rs. 16 lacs and balance would be paid within a period of 3-4
months. It was subsequent to these instructions of the accused
that the cheque in question Ex.CW1/C was presented for
payment on 27.02.2012 but was received back unpaid for the
reasons "Funds Insufficient". On being informed in this regard,
accused apologized and asked the complainant to re-deposit the
cheques in the first week of May 2012. Cheque was again
presented and returned back unpaid on 07.05.2012. It was this
subsequent dishonor of the cheque in question that led to
issuance of notice and filing of the present case under Section
138 N.I. Act.
73. Now, what is required to be examined is whether in these
facts and circumstances of the case as pleaded by the
complainant, Ld. Trial Court was right in raising the presumption
of existence of legally enforceable debt in favour of the
complainant.
74. The appellant/accused has relied upon the various citations
to support his argument that the presumption under Section 139
NI Act could not have been raised in the facts and circumstances
of the present case. Let us consider the factual matrix of those
cases and their applicability to the facts of the present case.
CA No. 142/2022
Prayagi Lal Yadav Vs. Sudesh Kumari
PS Nangloi
Page No.32/51
75. In M.S. Narayan Menon @ Mani (Supra), the Apex court
appreciated that one of the cardinal principles which has always
to be kept in view in our system of administration of justice for
criminal cases is that a person arrayed as an accused is presumed
to be innocent unless that presumption is rebutted by the
prosecution by production of evidence as may show him to be
guilty of the offence with which he is charged. The burden of
proving the guilt of the accused is on the prosecution and unless
it relieves itself of that burden, the court cannot record a finding
of guilt of the accused. There are certain cases in which
statutory presumptions arise regarding the guilt of the
accused, but the burden even in those cases is upon the
prosecution to prove the existence of facts which have to be
present before the presumption can be drawn. Once those
facts are shown by the prosecution to exist, the court can
raise the statutory presumption and it would, in such an
event, be for the accused to rebut the presumption. The onus
even in such cases upon the accused is not as heavy as is upon
the prosecution to prove the guilt of the accused. If some
material is brought on the record, consistent with the
innocence of the accused which may reasonably be true, even
though it is not positively proved to be true, the accused
would be entitled to acquittal. In other words, the onus on an
accused may well be compared to the onus on a party in a civil
proceedings, and just as in civil proceedings, the court trying an
issue makes it decision by adopting the test of probabilities so
must a criminal court hold that the plea made by the accused is
proved if the preponderance of the probabilities is established by
the evidence led by him.
CA No. 142/2022
Prayagi Lal Yadav Vs. Sudesh Kumari
PS Nangloi
Page No.33/51
76. In Ravi Kumar D case (Supra) the facts were that one
company had issued a post dated cheque for Rs. 70 lacs in favour
of the complainant for discharge of its liability. To ensure the
payment of the said PDC, Director of the said company i.e.
appellant issued three cheques for Rs. 25 lacs each as security
and stated that in the event of dishonor of cheque of Rs. 70 lacs,
complainant may encashed these three cheques. The cheque
issued by the company was dishonored and a case under Section
138 N. I. Act was initiated by the complainant against the
company. The complainant also presented the three cheques of
Rs.25,000/- each issued by the appellant which were also
dishonored and three separate cases under Section 138 N.I. Act
were initiated against those three cheques. It was in this factual
matrix that Hon' ble High Court of Delhi observed in paragraph 9
of the judgment as under:-
"9. Plain reading of the above provision of law shows that
criminal liability under Section 138 N.I. Act is attracted
only if the dishonored cheque was issued for the discharge
in whole or in part of any existing debt or liability. The
section does not apply to a cheque issued to meet future
liability which may arise on happening of some
contingency. Thus, it is clear that the post dated cheque, if
issued for discharge of debt due, in the event of dishonor,
would attract Section 138 of N.I. Act but a cheque issued
not for an existing debt/liability but issued by way of
security for meeting some future contingency would not
attract Section 138 of N. I. Act."
77. In Basalingappa Vs. Mudibasappa case (Supra), the case
of the complainant was that he had lend a hand loan of Rs. 6 lacs
to meet out urgent and family necessity of the accused on
27.02.2012. A cheque dated 27.02.2012 for Rs. 6 lacs was given
CA No. 142/2022
Prayagi Lal Yadav Vs. Sudesh Kumari
PS Nangloi
Page No.34/51
by the accused. However, it was dishonored due to insufficient
fund on 01.03.2012. After appreciating the evidence, Ld. MM
acquitted the accused holding that the accused has been able to
raise a probable defence which creates doubts about existence of
legally enforceable debt or liability. In appeal, Hon'ble High
Court set aside the judgment of Ld. Trial Court and convicted the
accused. Matter went in appeal to the Apex Court. The Apex
Court after considering various earlier decisions on the issue
observed as under:-
"23. We having noticed the ratio laid down by this Court
in above cases on Sections 118(a) and 139, we now
summaries the principles enumerated by this Court in
following manner:-
(i) Once the execution of cheque is admitted Section 139
of the Act mandates a presumption that the cheque was
for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable
presumption and the onus is on the accused to raise the
probable defence. The standard of proof for rebutting the
presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to
rely on evidence led by him or accused can also rely on the
materials submitted by the complainant in order to raise a
probable defence. Inference of preponderance of
probabilities can be drawn not only from the materials
brought on record by the parties but also by reference to
the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the
witness box in support of his defence, Section 139
imposeds an evidentiary burden and not a persuasive
burden.
(v) It is not necessary for the accused to come in the
witness box to support his case.
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PS Nangloi
Page No.35/51
78. Applying these principles on the facts and evidence of the
case, the Apex Court acquitted the accused in Basalingappa's
case observing that accused has raised a probable defence and
thus, the presumption raised in favour of the complainant under
section 118(a) and Section 139 N.I. Act stood rebutted.
79. In Indus Airways Pvt. Ltd.'s case (Supra), PDCs were
given as an advance payment in respect of purchase order. One of
the term and condition of the contract was that the entire payment
would be given to the supplier in advance. The cheques were
dishonored on the ground of stop payment. A letter was received
by the complainant from the accused cancelling the purchase
order and requesting return of the cheques. It was in these facts
that the Apex Court held that if a cheque is issued as an
advance payment for purchase of the goods and for any
reason purchase order is not carried to its logical conclusion
either because of its cancellation or otherwise and material or
goods for which purchase order was placed is not supplied by
the supplier, the cheque cannot be said to have been drawn
for an existing debt or liability.
80. In M/s. Balaji Seafoods Exports (Supra), the case of the
complainant is that he had paid an advance of Rs. 35 lacs to the
accused who agreed that he will clear the advance amount within
30 days and also handed over a PDC of Rs. 35 lacs signed by
second accused for and on behalf of the first accused. The said
cheque was dishonored and complaint under section 138 N.I. Act
was filed. Two agreements were entered into between the parties
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Prayagi Lal Yadav Vs. Sudesh Kumari
PS Nangloi
Page No.36/51
which mentioned the issuance of the cheque in question as a
security cheque. The agreement between the parties was to the
effect that complainant will be releasing at the request of the
accused need based advances and the outstanding advance
anytime shall not exceed Rs. 35 lacs. The accused agreed to give
a cheque of Rs. 35 lacs to the complainant as security for
advance received. It was also agreed that no advance shall remain
unadjusted for a period of more than 30 days from the date of
payment by the complainant and any over due on this account
shall be deemed to be breach of this agreement by the accused. It
was also agreed that in the event of such breach, complainant
will be at liberty to encash such cheques in settlement of the
amounts due from the accused and initiate appropriate further
proceedings including action under Section 138 N. I. Act.
Considering these facts of the case and the evidence produced on
record, Hon' ble High Court of Madras observed in paragraph no.
8 of the judgment that:
"8. Therefore, on the date when the cheque was handed
over there was no legally enforceable debt or other
liability. An undated cheque for Rs. 35 lacs was handed
over as a security for the purpose of the contract. It was
not handed over with the intention of making it as an
instrument of immediate negotiation to discharge a
subsisting liability or debt. Thus, this is a case where one
of the party to the contract had obtained a signed undated
cheques for Rs. 35 lacs as a security. As dispute arose
between the parties, the cheque is not utilized by the
complainant to resort to Section 138 of the Act by filling in
a date convenient to him".
81. Considering the overall facts of the case, Hon'ble High
Court of Madras in Balaji Seafoods's case (Supra), opined that as
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PS Nangloi
Page No.37/51
an undated cheque was given as a security, the provision of
Section 138 N.I. Act was not attracted and complaint U/s 138
N.I. Act was not maintainable.
82. I have carefully perused all these citations relied upon by
the appellant/accused. The facts of the Ravi Kumar's case (supra)
are clearly distinguishable from the facts of the present case as in
that case two separate cases under Section 138 NI Act were
initiated, one for the cheque issued for initial liability and the
subsequent one for the cheques issued for securing the payment
of initial cheque which is not the case here. Similarly, the
decision in Indus Airways Pvt. Ltd.'s case (supra) is
distinguishable on facts as in that case the cheque in question was
issued for advance payment for purchase of certain goods which
were never supplied. Similarly, in Balaji Seafoods Export's case
(supra), the facts were entirely different as the cheque issued as
security at the time of initial agreement was used in respect of a
subsequent agreement. Accordingly, these three citations are of
no help to the case of the accused and are clearly distinguishable
on facts.
83. As regards, the decision in M. S. Narayanan Menon's case
(Supra) and Basalingappa's case (supra), it is clearly held that
when the prosecution proves the facts necessary for raising the
presumption, the presumption can be raised in favour of the
complainant/prosecution and the burden shifts on the accused to
rebut the presumption. Once the execution of the cheque is
admitted, Section 139 of the Act mandates a presumption that the
cheque was for the discharge of any debt or other liability. The
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Prayagi Lal Yadav Vs. Sudesh Kumari
PS Nangloi
Page No.38/51
presumption under Section 139 is, however, a rebuttable
presumption and the standard of proof of rebuttal is that of
preponderance of possibilities.
84. In the present case, the agreement Ex.CW1/B is an
admitted document relied upon by the both the parties. It
categorically talks about the advancement of loan by the
complainant to the accused and issuance of the cheque in
question as a security for the settlement of account and payment
by the accused. In addition to this, the complainant has
categorically stated in her complaint, legal notice Ex.CW1/F as
well as her evidence affidavit Ex.CW1/A that the accounts were
settled between the parties and a sum of Rs. 21.57 lacs was found
due from the accused and he had requested the complainant to
use the cheque in question for repayment of the sum of Rs. 16
lacs and assured that the balance payment shall be paid at the
earliest. It was in these circumstances that the cheque in question
was presented by the complainant for payment.
85. In my considered opinion, considering these facts of the
case, the cheque in question cannot be said to be merely a
security cheque issued without existence of any legal liability.
Although agreement Ex.CW1/B records that the accounts are yet
to be settled, however, it does not reflect that the cheque has been
issued for advance payment of a non-existing liability or to
doubly secure a payment which was already secured by issuance
of a cheque. Rather, the agreement clearly records that there is an
existing liability of the accused towards the complainant,
however, the exact amount of liability is required to be calculated
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Prayagi Lal Yadav Vs. Sudesh Kumari
PS Nangloi
Page No.39/51
and accordingly, blank signed cheque was issued.
86. It is also correct that the agreement Ex.CW1/B records that
once the accounts were settled, the accused will make the
payment by cash or cheque and the cheque in question would be
returned back to him. However, the subsequent developments
regarding the settlement of account and request of the accused to
use the cheque in question for part payment as deposed about by
the complainant is sufficient for drawing the presumption under
Section 139 NI Act that the cheque Ex.CW1/C was issued for
discharging an antecedent liability.
87. My opinion in this regard is further fortified by the
provision relating to inchoate stamped instruments as contained
in Section 20 of NI Act which provides that where one person
signs and delivers to another a paper stamped in accordance with
law relating to negotiable instrument and either wholly blank or
having written thereon an incomplete negotiable instrument, he
thereby gives prima facie authority to the holder thereof to make
or complete, as the case may be upon it a negotiable instrument,
for any amount specified therein and not exceeding the amount
covered by the stamp. In such circumstances, the persons so
signing has been made liable upon such instrument.
88. In addition to this, the accused/appellant in the present
case is not disputing the issuance of the cheques in question
Ex.CW1/C by him. He has admitted his signatures on the cheque
at the time framing of notice under Section 251 Cr. P. C., in his
statement recorded under Section 313 Cr. P. C. as well as in his
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Prayagi Lal Yadav Vs. Sudesh Kumari
PS Nangloi
Page No.40/51
deposition as DW1. The cheque in question bears an amount of
Rs. 16 lacs which is the amount as mentioned in agreement
Ex.CW1/B, which again is an admitted document.
89. In these circumstances, I have no hesitation in holding that
considering the overall facts of the case and evidence produced
on record, Ld. Trial Court has rightly raised the presumption
under Section 139 NI Act regarding issuance of the cheque in
question in discharge of a legally recoverable debt in favour of
the complainant.
90. Having upheld the raising of the presumption in favour of
the complainant, the next question that arises for consideration is
whether the accused has been able to rebut the said presumption.
It is again reiterated even at the stake of repetition that the burden
of proof to rebut the presumption is on the accused and the
standard of proof required for rebutting the presumption is mere
preponderance of probabilities. The rebuttal does not have to be
conclusively established rather, such evidence in support of
defence has to be adduced before the court that the court either
believes the defence to exist or considers its existence to be
reasonably probable. If the accused is able to bring on record a
probable defence, the presumption stands rebutted and the onus
shifts on the complainant to prove beyond reasonable doubt the
entire allegations made in the complaint.
91. Let us now examine the evidence produced on record and
the citations relied upon by the appellant from this aspect.
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Prayagi Lal Yadav Vs. Sudesh Kumari
PS Nangloi
Page No.41/51
92. In Rohit Bhai J. Patel's case (Supra), the facts of the case
were that the complainant had given friendly loan to the accused
for re-payment of which seven cheques were issued. The cheques
were dishonored on presentation and seven different cases under
Section 138 N. I. Act were filed by the complainant. The
complainant was also relying upon an acceptance for repayment
executed by the accused on stamp paper. Accused raised a
defense of misuse of cheque in question alleging that the cheques
and stamp paper signed in blank were given to one Jagdish Bhai
and were fraudulently misused by the complainant. The accused
was acquitted by Ld. Trial Court by observing that there is no
documentary evidence to show the source of income of the
complainant for advancing loan to the accused, complainant
failed to record the transaction in the form of receipt, promissory
notes or even Kachcha Note, vague and uncertain statements
were made by the complainant as compared to the statement of
witness Jagdish Bhai, the complainant had no knowledge about
the date and particulars of the transaction etc. On the basis of
these deficiencies, Ld. Trial Court concluded that the accused
was successful in bringing rebuttal evidence to the requisite level
of preponderance of probabilities and observed that the
complainant had failed to prove beyond all reasonable doubts
that the cheques were issued in part payment of loan amount. The
judgment was upheld by first Appellate Court, however, Hon' ble
High Court of Gujarat recorded the finding of conviction against
accused observing that the presumption under Section 118 and
139 of N. I. Act was required to be drawn that the cheques were
issued for consideration and until contrary was proved, such
presumptions would hold good; that the complainant had proved
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Prayagi Lal Yadav Vs. Sudesh Kumari
PS Nangloi
Page No.42/51
legally enforceable debt in the oral as also documentary evidence
including the written acknowledgment by the accused on stamp
paper; and that except their denial, nothing was brought on
record by accused to dislodge the proof adduced by the
complainant. This order of Hon' ble High court of Delhi was
under challenged before the Apex Court in Rohit Bhai's case
(Supra).
93. The Apex court after considering the overall facts of the
case observed as under:-
"17. In the case at hand, even after
purportedly drawing the presumption under
Section 139 of the NI Act, the Trial Court
proceeded to question the want of evidence
on the part of the complainant as regards
the source of funds for advancing loan to
the accused and want to examination of
relevant witnesses who allegedly extended
him money for advancing it to the accused.
This approach of the Trial Court had been
at variance with the principles of
presumption in law. After such
presumption, the onus shifted to the
accused and unless the accused had
discharged the onus by bringing on record
such facts and circumstances as to show
the preponderance of probabilities tilting in
his favour, any doubt on the complainant's
case could not have been raised for want of
evidence regarding the source of funds for
advancing loan to the accused-appellant.
The aspect relevant for consideration had
been as to whether the accused-appellant
has brought on record such
facts/material/circumstances which could
be of a reasonably probable defence.
.......
19. Herein above, we have examined in CA No. 142/2022 Prayagi Lal Yadav Vs. Sudesh Kumari PS Nangloi Page No.43/51 detail the findings of the Trial Court and those of the High Court and have no hesitation in concluding that the present one was clearly a case where the decision of the Trial Court suffered from perversity and fundamental error of approach; and the High Court was justified in reversing the judgment of the Trial Court. 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 or even kachcha notes, or that there were inconsistencies in the statement of the complainant and his witness, or that the witness of the complaint 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 complaint to prove his case beyond reasonable doubt. These consideration and observations do not stand in conformity with the presumption existing in favour of the complainant by virtue of Sections 118 and 139 of the N.I. 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 source of funds were not to relevant consideration while examining if the accused has been able to rebut the presumption or not. The other observations as regards any variance in the statement of complainant and witness; or want of knowledge about dates and other particulars of the cheque; or washing away of the earlier cheques in the rains though the office of the complainant being on the 8th floor had also been of irrelevant factors for CA No. 142/2022 Prayagi Lal Yadav Vs. Sudesh Kumari PS Nangloi Page No.44/51 consideration of a probable defence of the appellant. Similarly, the factor that the complainant alleged the loan amount to be Rs. 22,50,000/- and seven cheques being of Rs. 3,00,000/- each leading to a deficit of Rs. 1,50,000/-, is not even worth consideration for the purpose of the determination of real questions involved in the matter. May be, if the total amount of cheques exceeded the alleged amount of loan, a slender doubt might have arisen, but, in the present matter, the total amount of 7 cheques is lesser than the amount of loan. Significantly, the specific amount of loan (to the tune of Rs.
22,50,000/-) was distinctly stated by the accused-appellant in the aforesaid acknowledgment dated 21.03.2017.
20. On perusing the order of the Trial Court, it is noticed that the Trial Court proceeded to pass the order of acquittal on the mere ground of 'creation of doubt'. We are of the considered view that the Trial Court appears to have proceeded on a misplaced assumption that by a mere denial or mere creation of doubt, the appellant had successfully rebutted the presumption as envisaged by Section 139 of NI Act. In the scheme of the NI Act, mere creation of doubt is not sufficient.
21. The result of discussion in the foregoing paragraph is that the major consideration on which the Trial Court chose to proceed clearly show its fundamental error of approach where, even after drawing the presumption, it had proceeded as if the complainant was to prove his case beyond reasonable doubt. Such being the fundamental flaw on the part of the Trial Court, the High Court cannot be said to have acted illegally or having exceeded its jurisdiction in reversing the CA No. 142/2022 Prayagi Lal Yadav Vs. Sudesh Kumari PS Nangloi Page No.45/51 judgment of acquittal. As noticed herein above, in the present matter, the High Court has conscientiously and carefully taken into consideration the views of the Trial Court and after examining the evidence on record as a whole, found that the findings of the Trial Court are vitiated by perversity. Hence, interference by the High Court was inevitable; rather had to be made for just and proper decision of the matter.
94. In Prem Singh Rohilla's case (Supra), the Hon' ble High Court of Punjab and Haryana, after considering the provisions of Section 118 (a) and Section 139 NI Act and the ratios laid down by various courts on the said provisions observed that :-
"25. .....(i) Once the execution of the cheque was admitted, Section 139 NI Act mandates a presumption that the cheque was for the discharge of any liability or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumptions, it is open to the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposes an evidentiary burden and not a persuasive burden."
95. Applying these propositions of law, since the cheque in CA No. 142/2022 Prayagi Lal Yadav Vs. Sudesh Kumari PS Nangloi Page No.46/51 Prem Singh Rohilla's case was admittedly signed by the accused, a presumption under Section 139 to the effect that the cheque was issued in discharge of liability was raised. However, after appreciating the evidence, it was observed that the accused has been able to rebut the presumption and thus the burden should be shifted on the complainant to lead affirmative evidence to show pre-existing liability and the same be legally enforceable at the time of issuance of cheque. The failure to prove his case against the accused beyond reasonable doubt after rebuttal of the presumption is a sufficient to give a finding of acquittal against the accused.
96. In Rishikesh Singh's case (Supra), the full bench of Hon' ble High Court of Allahabad was that whether the dictum in the case of Prabhoo Vs. Emperor 1941 All LJ 619 to the effect that the accused who puts forward a plea based on a general exception in IPC is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea based on such a general exception) a reasonable doubt is created in the mind of the court whether the accused persons are entitled to the benefit of the said exception is still good law. After examining the entire law in this regard, Hon' ble Allahabad Court concluded that "176... The dictum of the majority of learned Judges of this court in 1941 All LJ 619 = AIR 402 (FB) is still good law. But, it may be elucidated that in a case in which any general Exception in the Indian Penal Code is pleaded by an accused and evidence is adduced to support such a plea, but such evidence fails to satisfy the Court affirmatively that the accused has fully CA No. 142/2022 Prayagi Lal Yadav Vs. Sudesh Kumari PS Nangloi Page No.47/51 established his plea of the claimed exception, he will still be en-titled to an acquittal, if, upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the said general Exception), reasonable consequential doubt is created in the mind of the Court as to whether the accused is really guilty of the offence with which he is charged.
97. Now, coming to the facts before us, in the present case, the accused has admitted execution of agreement Ex.CW1/B which categorically talks about the advancement of loan by the complainant to the accused. Accused had taken various defences at various stages to dispute his liabilities under the cheque in question (Ex.CW1/C). At the time of framing of notice, he stated that he was having business transaction with the complainant and for the supply of machinery by the complainant he had issued the cheque in question and had made the payment for the machinery to the complainant. In his application under Section 145(2) Cr. P. C., he stated that he had business relations with the complainant and the cheque in question signed in blank was issued since the accounts were not settled between the parties and after the settlement of accounts, it was the complainant who was liable to make the payment to the accused and not other way round. Admitted agreement Ex.CW1/B talks about advancement of loan by the complainant to the accused and not any business relations between them. In cross examination of CW1/complainant, accused put forth a case regarding some dealings between the complainant and one Guru Nanak Machine Tools, Amritsar which questions were duly answered by the complainant and the suggestions regarding certain payments received by the CA No. 142/2022 Prayagi Lal Yadav Vs. Sudesh Kumari PS Nangloi Page No.48/51 complainant from Guru Nanak Machine Tools regarding some inflated bills were duly denied by CW1. However, accused failed to produce any witness to bring on record the details of these transactions between complainant and M/s. Guru Nanak Tools and the manner in which these transactions affected the liabilities of accused towards the complainant. In his own examination as DW1, accused put forth a new case that at request of complainant and Kanwar Singh Rana he had paid Rs. 12 lacs regarding the purchasing of land by sister-in-law of the complainant. Complainant took a loan of Rs. 16 lac from her sister-in-law to pay to the owner of the land but retained with her and asked the accused to give one blank signed cheque to show to her sister-in- law and in good faith he issued the cheque in question in favour of the complainant and handed over to the complainant.
98. A mere perusal of these defences put forth by the complainant at different stages of the trial clearly shows that all these defences are contradictory to each other. The accused has failed to bring on record a probable defence which can be held to rebut the presumption of legally recoverable debt/other consideration under Section 139 NI Act raised in favour of the complainant. Once, the accused had admitted agreement Ex. CW1/B, there is a clear admission of advancement of loan by the complainant to the accused. However, defences brought on record by the accused at various stages of trial are contradictory to this admission of the accused and without any supporting evidence thus, do not inspire the confidence of the court.
99. In these circumstances, considering the overall evidence on record, I have no hesitation in holding that the accused had CA No. 142/2022 Prayagi Lal Yadav Vs. Sudesh Kumari PS Nangloi Page No.49/51 failed to bring on record a probable defence which was capable of rebutting the presumptions of legal considerations drawn in favour of the complainant. Ld. Trial court, while discussing the defences of the accused had categorically held that he had failed to support any of his defences with proper evidence. His defences are contradictory to each other and are not acceptable even on the scale of preponderance of probabilities and do not inspire the confidence of the court. I am in agreement with these findings of Ld. Trial Court and find no infirmity or illegality in the same.
100. Once the accused had failed to rebut the presumption, there was no requirement for the complainant to prove her case beyond any reasonable doubt as clearly held in the various decisions of superior courts cited by appellant/accused himself and discussed herein above. Accordingly, the arguments of the appellant that the complainant had failed to prove the documents to show that she had financial capacity to advance the loan are not relevant in the present case once the accused has failed to discharge the burden upon him to rebut the presumption under Section 139 raised in favour of the complainant.
101. In view of the reasons and discussions above, I find no merit in the present appeal. No illegality or infirmity is found in the impugned judgment/order of conviction dated 11.03.2022. The impugned judgment dated 11.03.2022 is a well reasoned judgment based on correct appreciation of law and evidence led in the matter. The same is accordingly, upheld.
102. As regards the impugned order on sentence dated CA No. 142/2022 Prayagi Lal Yadav Vs. Sudesh Kumari PS Nangloi Page No.50/51 08.06.2022, again same is a well reasoned order passed after duly considering the aggravating and mitigating circumstances available on record. No infirmity or illegality is found in the order on sentence dated 08.06.2022. Considering the conduct of the accused in delaying the matter, Ld. Trial Court imposed the maximum fine of double the cheque amount and directed it to be paid as compensation to the complainant. Considering the age of the accused who is stated to be about 86 years SI of only two months has been imposed upon him which in my opinion is the correct approach. The impugned order on sentence dated 08.06.2022 is, accordingly, upheld.
103. In view of findings given above, the present appeal stands dismissed.
104. No order as to cost.
105. Let a copy of this order be given free of cost to both the parties.
106. TCR be sent back along with the copy of this order.
107. Appeal file be consigned to record room after due compliance.
Digitally signed by SHIVALI Announced in open Court SHIVALI SHARMA Dated: 25.05.2023. SHARMA Date: 2023.05.25 15:38:55 +0530 Shivali Sharma
Additional Sessions Judge-03(West) Tis Hazari Court/25.05.2023 CA No. 142/2022 Prayagi Lal Yadav Vs. Sudesh Kumari PS Nangloi Page No.51/51