Delhi District Court
Ms. Jyotima Singh vs Ms. Reena on 3 February, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Appeal No. 424/2019
CNR No.: DLCT01-014672-2019
Ms. Jyotima Singh
D/o Sh. Rajinder Prasad Singh
R/o. Q. No. 375, Type-A, Police Colony,
Ashok Vihar, District North-West,
Delhi-110052
..... Appellant
VERSUS
Ms. Reena
W/o Sh. Anand Kumar
R/o A-68, PS Sarai Rohilla,
Delhi-110007
..... Respondent
Date of Institution : 25.10.2019
Date of Arguments : 23.10.2021
Date of Judgement : 03.02.2022
JUDGEMENT
1. The criminal appeal under Section 374 of 'The Code of Criminal Procedure, 1973' (In short 'Cr.P.C.') is directed against judgement dated 19.09.2019 and order on sentence dated 24.09.2019 in CC No. 522957/2016 titled as 'Ms. Reena vs. Ms. Jyotima Singh' under Section 138 of 'The Negotiable Instruments Act, 1881' (In short 'NI Act') whereby Ld. MM (NI Act)-07, Central District, Tis Hazari Courts, Delhi (In short 'the trial Court') convicted the appellant for offence under Section 138 NI Act and sentenced to pay an amount of Rs. 5,50,000/- as 'fine', which is payable to the respondent as 'compensation', within 30 days and otherwise, she will undergo simple imprisonment for a period of 6 months.
Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 1/28BRIEF FACTS:
2. The respondent (Hereinafter referred to as 'the complainant') instituted a complaint case under Section 138 NI Act on the averments that the complainant and the appellant are employed in Delhi Police. The appellant had friendly relation with the complainant since many years. In the month of September, 2012; the appellant approached the complainant and demanded an amount of Rs. 4,00,000/- as 'loan' as she needed the said amount urgently. The complainant arranged and advanced a friendly loan of Rs. 3,85,000/- to the appellant.
The appellant assured that she would return the loan amount within one year. In discharge of her liability, the appellant issued a post-dated cheque vide Cheque No. 035677 dated 05.09.2013 in the sum of Rs. 3,85,000/- drawn on 'ICICI Bank Ltd., Sahibabad Branch, Bansal Chambers, 45, Kaushambi, Ghaziabad, U.P.' in favour of the complainant. On expiry of period of one year, the complainant demanded the loan amount from the appellant. On instruction of the appellant, the complainant presented the said cheque for encashment to her banker. However, the said cheque was returned unpaid with the remark 'ACCOUNT CLOSED' vide bank memo dated 09.11.2013. The complainant sent demand notice dated 25.11.2013 to the appellant through Regd. AD / speed post. However, despite receipt of demand notice, the appellant failed to make payment of the cheque amount. Hence, the complainant filed the complaint case under Section 138 NI Act.
Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 2/28SUMMONING ORDER:
3. The trial Court, vide order dated 11.02.2014, summoned the appellant for offence under Section 138 NI Act. NOTICE OF ACCUSATIONS UNDER SECTION 251 CR.P.C.:
4. On 21.07.2014, the trial Court explained substance of accusations to the appellant, as required under Section 251 Cr.P.C., to which she responded as under:
"Q. Do you plead guilty or have any defence to make? A. I do not plead guilty and claim trial. The account from which the cheque in question has been issued is mine, however, the signatures in the cheque are not mine. I had never asked for any loan from the complainant as alleged by her. I cannot say how the cheque in question was with the complainant. I have created my account from 27/04/2007 and closed on 04/03/2010. During this period as far as I can recall, the said account has never been operated by me. The cheque book was also not used by me for any financial transaction."
THE COMPLAINANT'S EVIDENCE:
5. The complainant appeared as CW-1. She filed her examination-in-chief by way of affidavit Ex.CW1/A. She relied on the said cheque Ex.CW1/1, cheque returning memo dated 09.11.2013 Ex.CW1/2, demand notice dated 25.11.2013 Ex.CW1/3 and postal receipts Ex.CW1/4 and Ex.CW1/5. EXAMINATION UNDER SECTION 313 CR.P.C.:
6. Incriminating circumstances appearing in the evidence were explained to the appellant as required under Section 313 Cr.P.C. to which she replied, as under:
"I am innocent in the present matter. It is a false case. I did not take any loan from the complainant nor I ever issued any cheque to her.Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 3/28
In fact the complainant were having some committee / chits with my mother and my cheque book was lying blank in the house. It appears that the complainant received certain cheques from my mother as security on misrepresentation. The complainant and her husband have filed two complaints against me. Other complaint is pending u/s 138 of NI Act which is pending in the Court of JMIC, Rewari. I do not know how many cheques complainant has received from me. I have received the legal demand notice. "
APPELLANT'S EVIDENCE:
7. The appellant examined 2 witnesses, namely, Smt. Usha Singh as DW-1 and Ms. Aradhna as DW-2. JUDGEMENT:
8. The trial Court, vide judgement dated 19.09.2019, convicted the appellant for committing offence under Section 138 NI Act on the following grounds:
(a) The appellant admitted that the said cheque belonged to her and statutory presumption under Section 118 (a) and Section 139 NI Act was drawn;
(b) Mere denial of signature on the said cheque in the absence of any evidence to prove that the said cheque was not issued by the appellant and it does not bear the signature is not sufficient;
(c) In facts of the case, a conclusion that the said cheque was issued by the appellant can be drawn;
(d) The existence of chit committee is not supported by any documentary evidence;
(e) The defence that the said cheque was issued as a security cheque is not sufficient in the absence of any evidence that there was no debt or liability outstanding towards the complainant;
(f) The complainant has shown the source of the amount lent to the appellant;
(g) The defence of issuance of a blank cheque filled with different inks is inconsequential; and
(h) The appellant has not been able to raise any probable defence.Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 4/28
GROUNDS OF APPEAL:
9. Feeling aggrieved by the impugned judgement, the appellant preferred the appeal on the following grounds:
(a) The complainant could not prove existence of any legally enforceable debt or liability against the appellant;
(b) The trial Court committed serious error in presuming existence of legal liability in absence of any documentary evidence;
(c) The complainant had no friendly relation with the appellant and the appellant acquired knowledge of the complainant after receiving summons of the case;
(d) The complainant failed to prove any liability against the appellant and there was no question of issuing any cheque to the complainant;
(e) The trial Court has not applied its judicial mind and considered facts and circumstances of the case;
(f) The impugned judgement is based on assumptions and presumptions and it is contrary to facts and law; and
(g) The trial Court did not apply recent judicial pronouncements and the impugned judgement is based on conjectures and surmises.
APPEARANCE:
10. I have heard arguments of Mr. Vimal Kumar, Advocate for the appellant and Ms. Meenu Chaudhary, Advocate for the complainant.
CONTENTIONS OF THE APPELLANT:
11. Ld. Counsel for the appellant contended that the complainant is a total stranger to the appellant. He referred cross-examination of the complainant that the appellant and the complainant never posted or trained or resided at one place.Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 5/28
12. Ld. Counsel for the appellant contended that the complainant and the appellant hail from different places. He contended that the complainant is a resident of Meerut, U.P. whereas the appellant is a resident of Rajasthan. He contended that the complainant could not prove availability of an amount of Rs. 3,85,000/- at the relevant time for the purpose of loan. He referred cross-examination of the complainant in this regard. He contended that the complainant has neither proved her financial capacity nor source of loan amount. He contended that the complainant has not examined her father-in-law who allegedly provided her an amount of Rs. 1,50,000/-. He contended that there is no written agreement pertaining to advancement of loan. He contended that the said cheque was filled with different inks. He referred the said cheque Ex.CW1/1 to contend that the name of the drawee and date of the said cheque are in different inks. He contended that ink of signature on the said cheque is not matching with ink of the amount 'in figures' and 'in words'.
He contended that signature and other particulars of the said cheque were written with different pens. He contended that any amount more than Rs. 15,000/- cannot be paid in cash. He contended that the appellant never asked for any loan to help her brother in purchasing a car and construction of house in his village. He contended that the brother of the appellant is a petty shopkeeper and he cannot afford to purchase / maintain a car. He contended that the appellant has no plot in her village and there was no question of raising any construction thereon.
Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 6/2813. Ld. Counsel for the appellant contended that the complainant had never given any loan to the appellant. He contended that DW-1 Smt. Usha Singh / mother of the appellant was organizing committees / chits and the complainant used to participate therein. He contended that cheque book containing the said cheque was lost when it was in custody of her mother. He contended that the complainant came into possession of the said cheque through mother of the appellant. He contended that the appellant closed her account as the entire cheque book was lost. He contended that the complainant has not proved existence of any legally enforceable debt or liability against the appellant. He contended that the complainant has failed to prove that she had advanced a friendly loan of Rs. 3,85,000/- to the appellant. He contended that the impugned judgement and sentence deserve to be set-aside.
CONTENTIONS OF THE COMPLAINANT:
14. Ld. Counsel for the complainant contended that the trial Court considered the evidence minutely and delivered a reasoned judgement. She contended that mere denial of signature on the said cheque in the absence of any evidence is not a plausible defence. She contended that the appellant failed to raise any probable defence to displace statutory presumption under Section 139 NI Act. She contended that the complainant has proved her financial capacity to advance loan amount to the appellant. She contended that there is no manifest error of law or procedure or perversity in the impugned judgement.
Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 7/28SCOPE OF JURISDICTION OF FIRST APPELLATE COURT:
15. The jurisdiction of the appellate court is co- extensive with that of the trial court in the matter of assessment, appraisal and appreciation of the evidence and also to determine the disputed issues. A court exercising appellate power must not only consider questions of law but also questions of fact and in doing so it must subject the evidence to a critical scrutiny. In Surinder Mohan Katwal vs. State of Himachal Pradesh, (2018) 15 SCC 349, Hon'ble Supreme Court of India held as under:
"14.....The powers of the appellate court under Section 386 CrPC are the same as that of the trial court. It is true that the trial court being a primary court of facts, which has the advantage of seeing and observing the witnesses has to thoroughly analyse the evidence and record its findings. In an appeal from a conviction, it is for the appellate court to be satisfied affirmatively that the prosecution case is substantially established and record its own findings to confirm the conviction....."
POINTS FOR CONSIDERATION:
(a) Whether the appellant had drawn a cheque on an account maintained by her with a banker for payment of an amount of Rs. 3,85,000/- in favour of the complainant?
16. The complainant testified that she had advanced a friendly loan of Rs. 3,85,000/- to the appellant in month of September, 2012 and in discharge of the said liability, the appellant issued the said cheque in her favour. She placed the said cheque on the record. The appellant, in reply to notice of accusations under Section 251 Cr.P.C., admitted that account from which the said cheque was issued pertained to her.
Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 8/2817. However, she denied her signature on the said cheque. The appellant did not confront the complainant that the said cheque does not bear her signature. The appellant did not appear in the evidence to depose that the said cheque does not bear her signature. It is relevant to note that DW-1 Smt. Usha Singh is mother of the appellant. She stated that she cannot identify signature of the appellant. The banker of the appellant returned the said cheque unpaid for the reason that 'account closed' and not for the reason that the signature on the said cheque did not match with the signature of the appellant. The appellant did not state, in her examination under Section 281 Cr.P.C., that the said cheque does not bear her signature. A mere denial that the said cheque is not bearing signature of the appellant is not sufficient. It is evident that the said cheque bears signature of the appellant. It is proved that the appellant had drawn the said cheque on an account maintained by her.
(b) Whether statutory presumption under Section 118 (a) and 139 NI Act that the said cheque was drawn for consideration and the complainant received the said cheque for discharge of any debt or other liability can be raised?
18. In Hiten P. Dalal vs. Bratindranath Banerjee, (2001) 6 SCC 16, Hon'ble Supreme Court of India held that presumption under Section 139 NI Act is a presumption of law, as distinguished from a presumption of fact. It is obligatory on the court to raise this presumption in every case where factual basis for raising of presumption is established. There is no discretion with the court but to draw the statutory presumption.
Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 9/2819. In Rangappa vs. Sri Mohan, (2010) 11 SCC 441, Hon'ble Supreme Court of India interpreted Section 139 NI Act as under:
"27. Section 139 of the Act is an example of a 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 such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard or proof."
20. In Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513, Hon'ble Supreme Court of India held that in a trial under Section 138 NI Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument was executed by the accused, the rules of presumptions under Sections 118 and 139 NI Act help him shift burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability.
Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 10/2821. In Rohit Bhai Jivanlal Patel vs. State of Gujarat & Another, (2019) 18 SCC 106, the accused could not deny his signatures on the cheques and that the said cheques were presented to the bank within the period of their validity and returned unpaid for the reason of either the balance being insufficient or the account being closed. Hon'ble Supreme Court of India held as under:
"15.....Therefore, it is required to be presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e. the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the appellant-accused to establish a probable defence so as to rebut such a presumption."
22. In Kalamani Tex and Another vs. P. Balasubramanian, (2021) 5 SCC 283, Hon'ble Supreme Court of India held that the statute mandates that once the signature of an accused on cheque is established, then these "reverse onus" clauses become operative and the obligation shifts upon the accused to discharge the presumption imposed upon him.
23. The appellant admitted that she had drawn the said cheque on an account maintained by her in a bank. As already noted, it is proved that the said cheque was signed by the appellant. Therefore, statutory presumptions under Section 118 (a) and 139 NI Act that the said cheque was drawn for consideration and the complainant received it in discharge of an existing debt or other liability are drawn against the appellant.
Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 11/28(c) Whether the trial Court rightly presumed existence of legal liability against the appellant?
24. Ld. Counsel for the appellant contended that the trial Court committed a patent error of law in presuming existence of legally enforceable liability of the appellant towards the complainant.
25. In Hiten P. Dalal vs. Bratindranath Banerjee (supra), Hon'ble Supreme Court of India held that the effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability.
26. In Bhupesh Rathod vs. Dayashankar Prasad Chaurasia & Anr., Crl. Appeal No. 1105/2021 decided on 10.11.2021, Hon'ble Supreme Court of India held that the words of Section 139 NI Act are quite clear that unless the contrary is proved, it shall be presumed that the holder of the 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.
27. In Rangappa vs. Sri Mohan (supra), Hon'ble Supreme Court of India held that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat may not be correct.
28. Therefore, the trial Court has not committed any error in presuming existence of a legally enforceable debt or liability against the appellant.
Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 12/28(d) Whether the complainant was required to prove existence of any legally enforceable debt or liability against the appellant?
29. Ld. Counsel for the appellant contended that the loan amount was not advanced by way of cheque in violation of provisions of Income Tax Act. He contended that there is no agreement or writing regarding advancement of loan. He contended that the complainant did not prove existence of any legally enforceable debt or liability against the appellant.
30. In Bir Singh vs. Mukesh Kumar, (2019) 4 SCC 197, Hon'ble Supreme Court of India held that the loan was not advanced through banking mode or there was no receipt regarding the said loan would not make any difference and the finding of the High Court that the burden was on the appellant to prove that he had advanced the loan and the blank signed cheque was given to him in repayment of the same was patently erroneous. The finding of the High Court that the case of the appellant was highly doubtful was set-aside as under:
"37. The fact that the appellant complainant might have been an Income Tax Practitioner conversant with knowledge of law does not make any difference to the law relating to the dishonour of a cheque. The fact that the loam may not have been advanced by a cheque or demand draft or a receipt might not have been obtained would make no difference.....
39. In our considered opinion, the High Court patently erred in holding that the burden was on the appellant complainant to prove that he had advanced the loan and the blank signed cheque was given to him in repayment of the same. The finding of the High Court that the case of the appellant complainant became highly doubtful or not beyond reasonable doubt is patently erroneous for the reasons discussed above."Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 13/28
31. In Rohit Bhai Jivanlal Patel vs. State of Gujarat & Another (supra), Hon'ble Supreme Court of India held as under:
"20.....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 of relevant consideration while examining if the accused has been able to rebut the presumption or not.....
22. The result of discussion in the foregoing paragraphs is that the major considerations 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....."
32. In Kalamani Tex and Another vs. P. Balasubramanian (supra), Hon'ble Supreme Court of India held as under:
"14. Once the 2nd appellant had admitted his signatures on the cheque and the deed, the trial court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The trial court fell in error when it called upon the respondent complainant to explain the circumstances under which the appellants were liable to pay. Such approach of the trial court was directly in the teeth of the established legal position as discussed above, and amounts to a patent error of law."
33. The complainant is not required to prove existence of a legally enforceable debt or other liability as if, the complainant is to prove a debt before a civil Court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount.
Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 14/2834. A dishonour of the cheque carries a statutory presumption of consideration. The holder of cheque in due course is required to prove that the cheque was issued by the accused and that when it was presented, it was not honoured. After drawing presumption under Section 118 (a) and 139 NI Act, the onus is shifted to the accused and unless the accused discharges the onus by bringing on record such evidence demonstrating a probable defence, the complainant cannot be called upon to show existence of a legally enforceable debt or other liability.
(e) What is the manner and standard of proof for dislodging presumption under Section 118 (a) and 139 NI Act?
35. As regards standard of proof for displacing presumption under Section 118 (a) and 139 NI Act, it is settled that the defence has to establish its case on the principle of preponderance of probability.
36. In Rangappa vs. Sri Mohan (supra), Hon'ble Supreme Court of India held that standard of proof for rebutting presumption under Section 139 NI Act is preponderance of probabilities and for that matter, the accused can rely on the material submitted by the complainant, as under:
"28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities".Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 15/28
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 the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his / her own."
37. In Kishan Rao vs. Shankargouda, (2018) 8 SCC 165, Hon'ble Supreme Court of India held that the accused may adduce evidence to rebut the presumption, but mere denial regarding existence of debt shall not serve any purpose. It was held in para 20: (Kumar Exports case, SCC p. 520), "20..... The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non- existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist....."
38. Once the signature of the appellant on the said cheque are established, then "reverse onus" clauses become operative. The obligation to discharge the presumption is shifted upon the appellant.
Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 16/2839. The presumptions raised under Section 118 (a) and 139 NI Act are rebuttable in nature. The appellant is required to raise a probable defence and the standard of proof for displacing the presumption is preponderance of probability and not mere possibility. The appellant can lead evidence or rely upon the evidence adduced by the complainant to show non-existence of a legally enforceable debt or other liability or want of consideration.
(f) Whether the appellant is able to raise a probable defence?
40. In order to demonstrate that the complainant had no friendly relation with the appellant, the appellant relied on cross-examination of the complainant that the complainant and the appellant were never posted at one place, they did not have joint training, the complainant belongs to Meerut, U.P. and the appellant belongs to Rajasthan and they never resided together in the same colony.
41. The complainant, in her examination-in-chief Ex.CW1/A, stated that the complainant and the appellant are employed in Delhi Police and they had friendly relation since many years. It is an admitted fact that the complainant and the appellant are employed in Delhi Police. The appellant did not challenge testimony of the complainant that she had friendly relation with the appellant since many years. The complainant, in her cross-examination, stated that she knows the appellant since 2007.
Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 17/2842. The complainant stated that the appellant calls her husband as 'Jijaji'. She stated that the appellant knows her husband through her and her brother-in-law (jeth). She stated that the appellant is junior to her by 3 years. She stated that she knows mother of the appellant. The aforesaid depositions of the complainant remained unchallenged.
43. DW-1 Smt. Usha Singh is mother of the appellant. She stated that she knows the complainant since 7-8 years.
44. The appellant did not appear in the witness box to depose that she had no friendly relation with the complainant. She did not state, in her examination under Section 281 Cr.P.C., that she did not know the complainant.
45. Mere denial of relationship with the complainant is not sufficient to prove that the appellant had no friendly relation with the complainant.
46. The complainant is residing in Sarai Rohilla, Delhi and the appellant is residing in Ashok Vihar, Delhi. Both the places are just adjacent to each other. The complainant is known to mother of the appellant since 7-8 years as on 24.05.2017. Besides a denial in response to notice of accusations under Section 251 Cr.P.C., there is no evidence that the appellant did not have friendly relation with the complainant. There is sufficient material, as discussed above, to establish that the complainant had friendly relation with the appellant.
Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 18/2847. As regards contention that the complainant has failed to prove source of funds and examine her father-in-law to prove that he had given an amount of Rs. 1,50,000/- to the complainant, it can be stated that the complainant placed on record a copy of statement of account Mark 'Y' disclosing that she had withdrawn an amount of Rs. 2,00,000/- on 09.07.2012, Rs. 15,000/- and Rs. 20,000/- respectively on 06.08.2012. She stated, in her cross-examination, that she had withdrawn the said amount from her bank account in Axis Bank. She stated that she had taken an amount of Rs. 1,50,000/- from her father- in-law. Non-examination of father-in-law of the complainant is not material. The said amount of Rs. 1,50,000/- is not a huge amount which could not be arranged by the complainant from her father-in-law. Therefore, financial capacity of the complainant to advance the loan amount to the appellant is above board. The trial Court has rightly observed that the complainant has been able to establish source of fund which was advanced to the appellant.
48. As regards contention that the appellant was not in Delhi in entire month of September, 2012 as she had gone to participate in 'All India Police Tournament' in South India, it can be stated that besides a suggestion, the appellant has not led any evidence that such tournament had taken place in any part of South India in September, 2012 and the appellant had participated therein and she remained there during entire month of September, 2012.
Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 19/2849. As regards contention that brother of the appellant is a petty shopkeeper and he cannot afford to maintain a car and his brother does not own a plot and therefore, the appellant had no reason for seeking loan for construction of house in village is concerned, it can be stated that besides a suggestion in this regard, the appellant has not led any evidence. The appellant did not enter into witness box to deny that her brother was not in need of loan amount. She has not examined her brother that he is a petty shopkeeper and he cannot afford a car or he does not own any plot in village. Moreover, mode of use of loan amount is a personal affair of the appellant. The contention that the father of the appellant received an amount of Rs. 22 - 25,00,000/- as gratuity and so there was no occasion for the appellant to seek loan from the complainant remained unsubstantiated. The appellant has not led any evidence as to her father received the said amount and he made available the said amount to the appellant.
50. As regards contention that the complainant received the said cheque from mother of the appellant on misrepresentation as security, it can be stated that till 21.07.2014, the defence of the appellant, in response to notice of accusations under Section 251 Cr.P.C., was that she cannot say as to how the said cheque was with the complainant. Therefore, it is evident that it was the basic defence of the appellant that she was not aware as to how the said cheque reached to the complainant.
Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 20/2851. Belatedly, the appellant introduced an explanation that the complainant used to participate in the committees organized by her mother and the cheque book containing blank cheques came into possession of the complainant from her mother who lost the cheque book. The appellant, in cross-examination of the complainant, confronted her that she used to participate in the committees organized by her mother. She confronted her that the complainant had monetary dealing with her mother. She confronted her that blank cheques came in her possession from her mother and the cheque book was lost and the complainant misused it to settle disputes pertaining to the said committees with her mother. The complainant denied that she had any monetary dealing with mother of the appellant. It is, therefore, evident that the case sought to be projected by the appellant was that the complainant was a member of the committee organized by her mother and her mother had lost the cheque book and the complainant came into possession of the cheque book through her mother. However, the appellant stated, in her examination under Section 281 Cr.P.C., that the complainant received the cheque from her mother on misrepresentation as 'security'. She examined her mother who stated that she had shown the cheque book to the complainant as she asked for security for payment made in committee and as she had no bank account and when she went to prepare tea and she does not know how the complainant taken the cheque book.
Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 21/2852. It is evident that initially, the appellant was not aware as to how the said cheque reached to the complainant. Thereafter, the appellant introduced an explanation, during cross-examination of the complainant, that the complainant came into possession of blank cheque book which was lost by her mother. The appellant again changed her defence. In examination under Section 281 Cr.P.C., she stated that the complainant had taken certain cheques from her mother on misrepresentation as 'security'. Her mother had another explanation that she had shown the cheque book to the complainant as she was asking for security for payment made in the committee and she showed the cheque book of the appellant and she does not know how the cheque book came into possession of the complainant. According to her, she was thinking that cheque book was lost.
53. The appellant did not appear in the witness box to depose that the cheque book was lost by her mother or the said cheque was given by her mother to the complainant. She did not lodge any complaint with the police regarding misplacement of the cheque book containing the said cheque. She did not give any instruction to her banker to stop payment of the cheques contained in the said cheque book. She did not reply the demand notice. She has been changing her explanation so as to justify as to how the cheque reached to the complainant. The defence, as projected by the appellant, is neither consistent nor credible or probable.
Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 22/2854. As regards contention that the said cheque was a blank cheque and signature and the remaining particulars are written in different inks with different pens is concerned, it may be relevant to take note of judgement in Bir Singh vs. Mukesh Kumar (supra), as under:
"36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."
55. As regards contention that a post-dated blank cheque is not a negotiable instrument is concerned, it may be relevant to note that a post-dated cheque is a negotiable instrument and the drawer of the cheque is amenable to penal consequences of Section 138 NI Act.
56. in Bir Singh vs. Mukesh Kumar (supra), Hon'ble Supreme Court of India held as under:
"32.....the fact that the cheque might be post-dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act."
57. As regards contention that the said cheque was a security cheque and it was issued without consideration, it can be stated that the complainant, in her examination-in-chief Ex.CW1/A, categorically stated that the appellant had issued the said cheque towards repayment of the loan advanced to her. The said statement of the complainant remained unchallenged.
Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 23/2858. The complainant, in her cross-examination, reaffirmed that the appellant had taken loan from her and her husband on the same date and they received two cheques, one in her name and other in the name of her husband. She stated that she had advanced money to the appellant on 1 st / 2nd September, 2012. It is pertinent to mention that the appellant made a suggestion that the complainant received the cheque for the amount which she exactly paid to the appellant and her husband received the cheque exactly for the amount paid to the appellant. The complainant admitted the said suggestion. The appellant opened account on 27.04.2007 and closed it on 04.03.2010 and she never operated the said account. She has not examined her banker regarding the date of closure of account. The appellant has not explained as to why she had kept a blank signed cheque book with her mother. She did not lodge any complainant regarding loss of the cheque book. She did not reply the demand notice. Till 21.07.2014, she had no knowledge as to how the said cheque reached to the complainant. The contention that the said cheque was a security cheque and it was without consideration lacks merit. The appellant failed to displace statutory presumption that the said cheque was drawn for consideration or the complainant received it for discharge of legally enforceable debt. Besides raising inconsistent and unfounded defences, the appellant has failed to raise any probable defence for dislodging presumption under Section 118 (a) and 139 NI Act.
Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 24/2859. A security cheque issued for discharge of the present liability as security would not absolve the accused from penal consequences under Section 138 NI Act.
60. In Sripati Singh vs. The State of Jharkhand & Anr., Crl. Appeal Nos. 1269-1270 of 2021 decided on 28.10.2021, Hon'ble Supreme Court of India held as under:
"16.....If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow."
61. The complainant presented the said cheque dated 05.09.2013 for encashment within its period of validity. The said cheque was returned unpaid by the banker of the appellant with the endorsement 'account closed' vide bank memo dated 09.11.2013 Ex.CW1/2. The complainant issued demand notice Ex.CW1/3 within the prescribed period. The appellant was served with the demand notice. The appellant admitted receipt of demand notice. The appellant failed to make payment of the cheque amount despite receipt of demand notice within statutory period. The complaint was within limitation. The complaint established all pre-requisites as required under Section 138 NI Act.
Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 25/2862. The appellant was rightly convicted for committing offence under Section 138 NI Act.
63. There is no manifest error of law or procedure or perversity in the impugned judgement.
64. On the aspect of sentence, it may be noted that the cheque was returned unpaid on 09.11.2013 and the complaint was instituted on 21.12.2013.
65. In Bhupesh Rathod (supra), Hon'ble Supreme Court of India held that the respondent should be sentenced with imprisonment for a term of one year and with fine twice the amount of the cheque as under:
"29.....The complaint was instituted in July, 2006. Fifteen (15) years have elapsed since then. The punishment prescribed for such an offence under Section 138 of the NI Act is imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both. We are of the view that in the given scenario the respondent should be sentenced with imprisonment for a term of one year and with fine twice the amount of the cheque, i.e. Rs. 3,20,000/-."
66. In Kalamani Tex vs. P. Balasubramanian (supra), Hon'ble Supreme Court of India held as under:
"19. As regards the claim of compensation raised on behalf of the respondent, we are conscious of the settled principles that the object of Chapter XVII of NIA is not only punitive but also compensatory and restitutive. The provisions of NIA envision a single window for criminal liability for dishonour of cheque as well as civil liability for realization of the cheque amount. It is also well settled that there needs to be a consistent approach towards awarding compensation and unless there exist special circumstances, the courts should uniformly levy fine up to twice the cheque amount along with simple interest @ 9% p.a."Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 26/28
67. In the present case, the cheque amount is Rs. 3,85,000/-. The complaint case was instituted on 21.12.2013. The trial Court directed the appellant to pay compensation in the sum of Rs. 5,50,000/- which is lower than twice amount of the cheque i.e. 7,70,000/-. The trial Court has not imposed any sentence for imprisonment.
68. The trial Court has already taken lenient view in imposition of compensation. There is no reason to interfere in the quantum of compensation.
69. Accordingly, the appeal filed by the appellant challenging conviction for commission of offence under Section 138 NI Act is dismissed. Order on sentence directing the appellant to pay an amount of Rs. 5,50,000/- as fine which is payable as compensation to the complainant within 30 days and in default thereof, further direction to undergo simple imprisonment for six months is maintained.
70. The appellant shall deposit the fine amount of Rs. 5,50,000/- with the trial Court in the form of demand draft / pay order in the name of the complainant within 30 days.
71. A copy of the judgement alongwith trial Court record be sent to the trial Court.
72. Appeal file be consigned to record room.
Digitally signed by SANJAY SANJAY SHARMA
SHARMA Date: 2022.02.03
12:36:38 +0530
Announced in the open Court SANJAY SHARMA-II
on this 03rd February, 2022 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 27/28 Jyotima Singh vs. Reena CNR No.: DLCT010146722019 Crl. Appeal No. 424/2019 03.02.2022 Present : Mr. Vimal Kumar, Advocate with the appellant.
Mr. Rahul, Proxy Advocate for Ms. Meenu Chaudhary, Advocate with the respondent.
Vide separate judgement, the appeal filed by the appellant challenging conviction for commission of offence under Section 138 NI Act is dismissed. The appellant shall deposit the fine amount of Rs. 5,50,000/ with the trial Court in the form of demand draft / pay order in the name of the respondent / the complainant within 30 days. Appeal file be consigned to record room.
Digitally signed by SANJAY SANJAY SHARMA
SHARMA Date: 2022.02.03
12:36:51 +0530
Sanjay SharmaII
ASJ03, Central District,
Tis Hazari Courts, Delhi
03.02.2022
Crl. Appeal No. 424/2019 Jyotima Singh vs. Reena Page No. 28/28