Delhi District Court
Mahavir Parasad vs Dinesh Kumar on 21 April, 2014
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
Crl. Appeal no.09/14
Mahavir Parasad
s/o Late Sh. Rattan Lal
R/o VPO Paprawat
Najafgarh, New Delhi110043
....Appellant
Vs.
Dinesh Kumar
S/o Sh Hari Om
H.No.725, Gaushala Road
Najafgarh, New Delhi
.....Respondent
Appeal filed on : 23.01.2014
Reserved for Order on:15.04.2014
Order Pronounced on : 21.04.2014
ORDER
The present appeal U/s 374(3) Cr.PC has been preferred for setting aside the impugned order of conviction dated 20.12.2013 & sentence dated 21.12.2013 passed by Sh.Sudhir Kumar Sirohi, Ld. MM whereby the appellant was convicted u/s 138 NI Act and sentenced to pay fine of Rs.1,95,000/ and to undergo SI of six months u/s 138 NI Act and in default of payment of fine, accused to undergo SI for three months.
2. Briefly stated the facts for giving rise to this appeal are that the Mahavir Prasad Vs. Dinesh Kumar Crl.Appeal no.09/2014 Page No.1 of 6 respondent/complainant had filed complaint case against the appellant before the Ld. Trial court wherein it has been alleged that the appellant/accused approached the complainant/respondent in the month of Feb.2010 for a friendly loan of Rs.1,50,000/ from complainant/respondent and complainant gave him Rs.1,50,000/ and accused assured the complainant to return the amount within six months or about with. In consideration of the same, the accused issued cheque bearng no. 258169 for a sum of Rs.1,50,000/ dated 7.11.2010 drawn on Bank of Baroda, Karampura in favour of complainant. It is further alleged that when the said cheques was presented to the bankers for encashment, same was returned unapid by the drawee bank with the returning memo dated 29.11.2010 for the reason 'funds insufficient'. Thereafter, complainant served legal demand notice dated 7.12.2010 by registered post, speed post and UPC calling the accused to make the payment of dishonoured cheque. It is further averred that despite service accused failed to make the payment of the cheque amount demanded through Legal Notice. Hence the complaint case was filed. The appellant/accused was summoned and notice u/s 251 Cr.PC was framed against him to which he pleaded not guilty and claimed trial. The complainant examined himself as CW1 who proved the documents related to this case. Thereafter statement of accused u/s 313 Cr.PC was recorded. After hearing the final arguments from the Ld. Counsels for the parties, Ld. MM convicted the appellant/accused and sentenced him as above. Feeling aggrieved by the said Judgment and order on sentence, the present appeal was preferred by the appellant for setting aside the said Judgment & order on sentence.
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3. The present appeal was received by this court and appellant was admitted to bail. Notice was issued to the respondent and counsel for respondent had appeared. Trial court record was summoned and it was also received. Thereafter the appeal was fixed for arguments. I have heard the arguments on this appeal from the Ld. Counsel for the appellant as well as Ld. Counsel for the respondent.
4. During the course of arguments, Ld. Counsel for the appellant has argued that the appellant is a retired person. He is dependent on his pension. He is old aged and is suffering from diabetes. Ld. Counsel has not argued this appeal on merit and he only submitted that considering the background of appellant, leniency may kindly be taken.
5. On the other hand, Ld. Counsel for the respondent has argued that the present appeal is not maintainable because the Ld. MM has decided the matter after taking into consideration all the facts of the case. He submits that the appeal may kindly be dismissed.
6. In consideration of the submissions made by both the counsel, I have also perused the trial court record and the evidence adduced by the complainant. CW1 Dinesh has filed his affidavit in evidence and he relied upon documents i.e. cheque Ex.CW1/A, deposit receipt Ex.CW1/B, cheque returning memo Ex.CW1/C, office copy of legal notice Ex.CW1/D, UPC, Mahavir Prasad Vs. Dinesh Kumar Crl.Appeal no.09/2014 Page No.3 of 6 registered postal receipt Ex.CW1/E and F. In cross examination, complainant has stated that accused has taken friendly loan of Rs.1.5 lac. He has no money lending registration. He is running a shop of cot(charpai) and he gave the loan from the shop. He does not maintain any record in writing regarding his above said business. He does not file ITR. He denied the suggestion that he has received the entire payment regarding this cheque except Rs.20,000/. He gave legal notice to the accused. He had 34 meetings with the accused prior to filing the present case. The loan was in cash in different notes of Rs.500 and 1000. He has not filed any written proof about giving the loan in question. Considering the cross examination conducted by the Ld. Defence counsel, I am of the view that the testimony of complainant could not be shattered in cross examination.
7. I have also considered the statement of accused recorded u/s 313 Cr.PC r/w sec.281 Cr.PC by the Ld. Trial court. On perusal of the same, it is revealed that the accused/appellant has admitted that he has availed friendly loan of Rs.1,50,000/ and issued cheque Ex.CW1/A towards his liability. He further admitted that cheque issued by him got dishonoured with remarks insufficient funds and that he has received the legal demand notice from the complainant. He further admitted that he has failed to pay the amount of dishonoured cheque within 15 days. He further stated that he is ready to compromise the matter with the complainant as he is having liability. He has paid Rs.20,000/ as matter was settled in mediation to the complainant. He did not lead any defence evidence.
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8. In Hiten P. Dalal V. Bratindranath Banerjee , 2001(1) Apex Court Journal 617(SC):(2001) 6 SCC 16 is the authority for the proposition that the presumption u/s 139 of the NI Act is a presumption of law and the presumption of law has to be distinguished from an enabling presumption of fact u/s 114 of the Evidence Act. Such presumption of law is to be drawn and the court has no option, but to draw the same in every case where the factual basis for raising the presumption is established. Once that presumption is drawn, the period of life of the presumption of law is also specified u/s 139 of NI Act. The presumption will live, exist and survive thereafter and shall vanish only when 'the contrary is proved' by the accused. The contrary has to be proved. This obligation to prove contrary is not the obligation to disprove the prosecution case in its entirety. The presumption is only on the question whether the cheque is issued for the discharge in whole or in part of any debt or liability. Until the contrary is proved, this presumption will continue to remain.
9. In consideration of the statement of accused recorded u/s 313 Cr.PC, he has admitted the case of the complainant/respondent. The accused has failed to rebut the presumption u/s 118 NI Act and 139 NI Act in this case. Therefore, his conviction vide order dated 20.12.2013 u/s 138 NI Act is maintained.
10. As far as the arguments of the Ld. Counsel for the Mahavir Prasad Vs. Dinesh Kumar Crl.Appeal no.09/2014 Page No.5 of 6 accused/appellant that leniency may kindly be taken is concerned, I have also perused the order on sentence passed by the Ld. MM. The accused has been sentenced to pay fine of Rs.1,95,000/ and to undergo SI of Six Months u/s 138 NI Act and in default of payment of fine, to further undergo SI for three months. I have perused the Negotiable Instrument Act and considering the facts and circumstances of the case, I am of the view that no leniency could be shown to accused since the Ld.MM has already taken lenient view in sentencing the appellant. I am of the opinion that the accused has been sentenced appropriately by the Ld. MM. The order dated 21.12.2013 on the point of sentence is also maintained.
11. In view of my above discussions, I, therefore find no merit in the present appeal and the same is hereby dismissed. Appellant is already is JC in this case.
12. Trial court file be sent back with the copy of this order and appeal file be consigned to record room.
Announced in the Open Court on 21.04.2014.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI Mahavir Prasad Vs. Dinesh Kumar Crl.Appeal no.09/2014 Page No.6 of 6