Delhi District Court
Brijesh Kumar vs State on 17 December, 2024
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-009291-2023
CRIMINAL APPEAL No.: 160/2023
BRIJESH KUMAR,
S/o. Late Shri. Hukum Singh,
Proprietor of Jaikara Fashion,
Plot No. 20, 3rd Floor, Hathi Khana,
Bahadurgarh Road, Azad Market,
Delhi-110006. ... APPELLANT
VERSUS
1. STATE (GOVT. OF NCT OF DELHI)
2. M/s. FANCY CREATIONS PVT. LTD.,
Off. Address: 1882/83, S/F, Havali Jugal Kishor,
Chandni Chowk, East Delhi-110006.
Warehouse Address: Kh. No. 553 & 35/29/1,
Ground Floor, Village Burari,
Near Shalimar Banquet, Delhi-110084. ... RESPONDENTS
Date of Institution : 14.07.2023
Date when judgment was reserved : 04.12.2024
Date when judgment is pronounced : 17.12.2024
JUDGMENT
1. The present appeal has been preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter, referred to as 'Cr.P.C.') against the judgment dated 27.10.2022 (hereinafter referred to as 'impugned judgment'), passed by learned Metropolitan Magistrate-01/Ld. MM-01 (NI Act), Central, Tis Hazari Courts, Delhi (hereinafter referred to as the 'Ld. Trial Court/Ld. MM Court') in case bearing; "Fancy Creations Pvt. Ltd. v. Brijesh Kumar, Unique/New Case No. 12147/2018", convicting the appellant for the offence punishable under Section 138 Negotiable Instrument Act (hereinafter referred to as 'NI Act'), CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 1 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.17 15:10:33 +0530 and the consequent order of sentence dated 01.11.2022 (hereinafter referred to as 'impugned order'), passed by the Ld. Trial Court, awarding the appellant; rigorous imprisonment for a period of 04 (four) months and fine/compensation to a tune of Rs. 3,00,000/- (Rupees Three Lakhs only), to be paid by the appellant to respondent no. 2/complainant, in default of payment of compensation, the appellant, being further directed to undergo rigorous imprisonment for a further period of 02 (two) months (hereinafter impugned judgment and impugned order are collectively referred to as the 'impugned judgment and order'). 2.1. Pithily put, the genesis of the present proceedings is the complaint, filed by respondent no. 2/complainant before the Ld. Trial Court in terms of the provisions under Section 138 of NI Act. Under the said complaint, respondent no. 2 inter alia asserted that the appellant was engaged in the business of cloth/fashion in the name and style of M/s. Jaikara Fashion, being a proprietorship concern. As per respondent no. 2, the appellant approached the complainant/respondent no. 2 and introduced himself as a businessman dealing in the cloth/fashion industry, with a request to the complainant/respondent no. 2 to supply him/the appellant, cloth against cheque(s). It is further asserted under the complaint that the appellant assured respondent no.2/complainant at that point in time that he would supply regular business to respondent no. 2. Thereupon, based on/convinced with the assurances made by the appellant, respondent no. 2/complainant, agreed to sell the cloth material, selected by the appellant against the cheque payment(s). Consequently, as per the complainant/respondent no.
2, the appellant purchased cloth worth Rs. 1,94,971/- (Rupees One Lakh Ninety Four Thousand Nine Hundred and Seventy One only) against Bill No. FCR/2118 dated 17.01.2018. Correspondingly, as CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 2 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.17 15:10:39 +0530 per respondent no. 2/complainant, the appellant, in discharge of the said liability issued four cheques, bearing; 058253, dated 25.01.2018 for a sum of Rs. 50,000/- (Rupees Fifty Thousand only); 058254, dated 10.02.2018 for a sum of Rs. 50,000/- (Rupees Fifty Thousand only); 058255, dated 20.02.2018 for a sum of Rs.
50,000/- (Rupees Fifty Thousand only); and 058256, dated 20.02.2018 for a sum of Rs. 44,971/- (Rupees Forty Four Thousand Nine Hundred and Seventy One only), all drawn on Punjab National Bank (hereinafter all the said cheques are collectively referred to as the 'cheques in question/dishonoured cheques').
2.2. As per the complainant/respondent no. 2, the appellant, at the time of issuance of the cheques in question had assured the complainant/respondent no. 2 that the same would be honoured upon presentation. Subsequently, upon the instruction of the appellant, the complainant/respondent no. 2 presented the cheques in question with his banker, i.e., HDFC Bank, Chandni Chowk branch for encashment on 02.04.2018. However, the same were returned, dishonoured with the remarks, "Funds Insufficient"
vide return memos dated 03.04.2018 and 04.04.2018 ( hereinafter collectively referred to as the 'cheque dishonour memos/cheque return memos'). Consequently, the complainant/respondent no. 2 issued a demand notice dated 18.04.2018 to the appellant in terms of the provisions under Section 138 NI Act. However, despite the same, no payment was made by the appellant to the respondent. Ergo, under such circumstances, the respondent filed the aforenoted complaint in terms of the provisions under Section 138 NI Act.
2.3. Notably, consequent upon pre-summoning evidence by way of affidavit having been tendered by the respondent and CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 3 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.12.17 15:10:43 +0530 thereupon, Ld. Trial Court's taking cognizance of the offence on 26.06.2018, summons was issued to the appellant/accused. Subsequently, upon the appellant entering appearance before the Ld. Trial Court, notice under Section 251 Cr.P.C. was framed against him vide order dated 24.09.2019, to which, the appellant plead not guilty and claimed trial. Correspondingly, the appellant admitted the dishonour of cheque [Ex. CW-1/2(Colly.)] and cheque return memos [Ex. CW-1/3(Colly.)] on the said date, in terms of the provisions under Section 294/313 Cr.P.C., with the Ld. Trial Court dispensing the proof/examination of two witnesses, cited in the list of witnesses. Relevantly, during the course of trial, Authorized Representative of respondent no. 2 was examined/cross examined as CW-1. Subsequently, on conclusion of the complainant's/respondent no. 2's evidence, recording of statement of the appellant under Section 313/281 Cr.P.C. on 04.03.2022. Strikingly, at the time of recording of appellant's statement under Section 313/281 Cr.P.C., the appellant proposed to lead defence evidence, with the Ld. Trial Court, directing the appellant to file the list of defence witnesses before the next date of hearing before the Ld. Trial Court. Notably, subsequently, on 28.04.2022, last and final opportunity was granted to the appellant to lead defence evidence. However, subsequently, on 06.06.2022, the appellant moved an application under Section 315 Cr.P.C. to lead himself as defence witness which was allowed by the Ld. Trial Court, adjourning the matter to 03.08.2022. However, subsequently, on 03.08.2022, the appellant's right to lead defence evidence was closed, considering that the appellant remained unrepresented. Notably, the order had since attained finality, and nothing has been brought to the attention of this Court that the appellant ever challenged the said order. Needless to mention, CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 4 of 42 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.12.17 15:10:48 +0530 subsequently, arguments were addressed by/on behalf of the appellant and respondent no. 2 before the Ld. Trial Court, whereupon conclusion of arguments on behalf of the parties, as aforementioned, the Ld. Trial Court vide impugned judgment and order, while holding the appellant guilty of the offence punishable under Sections 138 NI Act, sentenced him in the manner, as noted hereinabove.
3.1. Learned Legal Aid Counsel1/Ld. Counsel2 for the appellant vehemently contended that the impugned judgment and order were passed by the Ld. Trial Court on mere conjunctures, surmises and in contravention of the settled principles of law, deserving their setting aside at the outset. Ld. Counsel further submitted that the Ld. Trial Court failed to appreciate that in the instant case, there are numerous yawning holes in the case put forth by respondent no. 2/complainant and that respondent no. 2's story does not inspire confidence, nor appeals to the senses of a prudent man. In this regard, Ld. Legal Aid Counsel/Ld. Counsel outrightly averred that the Ld. Trial Court failed to appreciate that the Ld. Trial Court committed an error by ignoring the material contradictions in the testimony of the complainant/respondent, recorded before the Ld. Trial Court, besides, as per the Ld. Legal Aid Counsel, the Ld. Trial Court was oblivious to the fact that the accused/appellant was successful in discharging his burden to 1 Reference is made to order dated 19.07.2023 of the Ld. Predecessor Judge, inter alia, recording, "The appellant stated that his counsel had not come to the Court. However, he had not stated any reason for non-appearance of his counsel. Ld. Counsel for the respondent submitted that the case pertains to the year 2018 and non-appearance of counsel is intentional so as to delay the disposal of the matter. In that view, Mr. ***, Ld. Legal Aid Counsel who is present in the Court is appointed as Counsel for the appellant..." (Emphasis supplied).
2Relevantly, subsequent to the arguments in the present case being addressed by/on behalf of the appellant by Ld. Legal Aid Counsel and Ld. Counsel for the respondent, fresh vakalatnama was filed on behalf of the appellant when the matter was listed for judgments/orders on 07.11.2024. On the said date, newly engaged counsel for the appellant submitted that the appellant was not properly represented in the present case by the Ld. Legal Aid Counsel. Markedly, though from perusal of the case records, this Court was not convinced with the said submissions of newly engaged counsel for the appellant, however, in the interest of justice, one opportunity was granted to the said newly engaged counsel to address arguments on behalf of the appellant, in the terms specified under order dated 07.11.2024 of this Court.
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ABHISHEK Digitally signed by ABHISHEK
GOYAL
GOYAL Date: 2024.12.17 15:10:51
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revert the presumption under law. As per the Ld. Legal Aid Counsel/Ld. Counsel for the accused, the same is notwithstanding the fact that the legal notice, as mandated under Section 138 NI Act, was not issued by respondent no. 2 to the appellant, belying the case of the complainant/respondent no. 2. Ld. Legal Aid Counsel/Ld. Counsel for the appellant further fervently contended that the Ld. Trial Court also failed to consider that the cheque in question was issued by the appellant as 'security' against the goods/cloth to be supplied by respondent no. 2/complainant to the appellant, however, the complainant/respondent no. 2, did not supply any material/goods/cloth to the appellant nor returned the cheques in question to the appellant, despite such non-supply. In this regard, Ld. Legal Aid Counsel/Ld. Counsel further fervently asserted that the supply of 'so called' material/goods/cloth by respondent no. 2 to the appellant to a tune of Rs. 1,94,971/- (Rupees One Lakh Ninety Four Thousand Nine Hundred and Seventy One only) has not been proved by the complainant and the Ld. Trial Court failed to appreciate that the cheques in question were wrongly filled by respondent no. 2/complainant in its name to illegally extort money out of the appellant. Even otherwise, as per the Ld. Legal Aid Counsel/Ld. Counsel for the appellant, the particulars of the cheque in question were neither filled by the appellant, nor even in his handwriting, making the entire negotiable instrument liable to be rejected in view of the provisions under Section 87 of the NI Act, as amounting to material alteration in the cheques in question, without concert and/or permission from the appellant.
3.2. Ld. Counsel for the appellant further vigorously argued that the Ld. Trial Court did not even consider the fact that the complainant did not file the acknowledgement in receipt of 'so CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 6 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.12.17 15:10:56 +0530 called' delivered material to/in favour of the appellant herein. Therefore, as per the Ld. Legal Aid Counsel/Ld. Counsel for the appellant, no question of supply or receipt of any goods/material has been proved by the complainant/respondent no. 2 to the appellant in the instant case. Ld. Legal Aid Counsel/Ld. Counsel for the appellant further vehemently argued that the Ld. Trial Court was oblivious to the fact that the complainant had even not provided the basic particulars regarding the mode of filling of the cheques in question, which were admittedly issued by the appellant to respondent no. 2/complainant for repayment of the alleged loan. It was further contended that the Ld. Trial Court also failed to appreciate that in the cross examination of the authorized representative of respondent no. 2, the appellant was able to rebut the presumption of 139 NI Act and had further put forward his/appellant's case/defence, as mandated under law on preponderance of probabilities. Accordingly, Ld. Legal Aid Counsel/Ld. Counsel for the appellant submitted that not only did the Ld. Trial Court failed to consider the truth of circumstances and passed the impugned judgment in haste, rather, did not properly appreciate/examine the facts of the present case, wrongly holding the appellant guilty of the aforementioned offences. Even otherwise, as per the Ld. Legal Aid Counsel/Ld. Counsel for the appellant, the impugned order on sentence was passed by the Ld. Trial Court, inconsiderate of the correct factual scenario, awarding an exorbitant sentence and order of compensation against the appellant. In this regard, it was strenuously contended that the appellant was married and first-time offender, with no other cases pending against him or registered in/against him in any court of law. Further, as per the Ld. Legal Aid Counsel/Ld. Counsel for the appellant, the appellant is solely liable for the take care/look after CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 7 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.12.17 15:11:00 +0530 of his family members, including his children, which factors were not considered by the Ld. Trial Court while passing the impugned order on sentence. Consequently, the Ld. Legal Aid Counsel/Ld. Counsel for the appellant inter alia prayed that the present appeal be allowed, and the impugned judgment and order be set aside, and the appellant be acquitted of the alleged charges. In the alternate, Ld. Legal Aid Counsel/Ld. Counsel for the appellant prayed that the appellant be entitled to the benefit of probation, with a reformative approach being adopted by this Court against the appellant. In the alternate, Ld. Counsel has submitted that the parties may be referred for mediation or be permitted to make the payments to the respondent No. 2, in terms of the impugned order. Further, as per the Ld. Counsel, the appellant may in alternate be permitted to comply with the terms of the mediation settlement agreement dated 03.08.2023. Ld. Counsel for the appellant has placed reliance upon decision in Pinak Bharat & Co. v. Anil Raman Rao Naik, Crl. Appeal No. 1630/31/2011 dated 02.12.2022 (Bombay High Court).
4. Per contra Ld. Counsel for the complainant/respondent no. 2 submitted that the impugned judgment and order were passed by the Ld. Trial Court after due appreciation of the facts and circumstances of the case as well as in consonance with the settled judicial precedents. Even otherwise, Ld. Counsel outrightly contended that the instant appeal was filed by the appellant with a sole motive to delay compliance of the impugned judgment and order, besides cause undue harassment to the complainant/respondent no. 2. Further, as per the Ld. Counsel, the appellant is guilty of persistently playing a fraud upon this Court as well as the Ld. Trial Court, as manifest from his conduct of neither surrendering before the Ld. Trial Court nor filing the CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 8 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.12.17 15:11:04 +0530 present appeal before the statutory period of limitation. As per the Ld. Counsel, the appellant preserved to buy time by mediating with respondent no. 2, however, not abiding by the terms of said settlement, besides avoiding appearance before this Court despite repeated adjournments, exemptions and issuance of process(es) for appearance, disentitling him to seek any indulgence/relief from this Court. Even otherwise, as per the Ld. Counsel, even on merits, the appellant has wrongly/falsely contended that the dishonoured cheque was not filled by him, contrary, to his declaration/assertion made at the time of framing of notice under Section 251 Cr.P.C. Ld. Counsel further submitted that the appellant/accused made contradictory and conflicting statements at different stages during trial, which are sufficient to prove appellant's malafide intention(s) to mislead Court. Ld. Counsel for respondent no. 2 further submitted that the appellant, besides only denying the receipt of legal notice dated 18.04.2018, opted not to lead any evidence in support of his said averment. On the contrary, at the time of framing of notice under Section 251 Cr.P.C., the appellant duly admitted that the address specified on the said notice was his, belying his contention as to non-receipt of legal demand notice in question. Even otherwise, it was fervently argued by the Ld. Counsel that the appellant led no evidence to rebut the presumption under Section 139 NI Act nor produce any witness/evidence in support of his contention that the cheques in question were issued by him as security. In fact, as per the Ld. Counsel no suggestion to the said effect was even put to the authorized representative of the complainant/respondent no. 2, i.e., the cheques were issued as security and that no goods were supplied by the complainant to the appellant herein. It was further submitted that the complainant/respondent no. 2 has been able to CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 9 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.17 15:11:08 +0530 prove its case, beyond reasonable doubt against the appellant. However, the appellant has not been able to rebut the presumption envisaged under law, even on preponderance of probabilities. Ld. Counsel further strenuously reiterated that the facts and circumstances put forth as well as the evidence placed on record, unerringly point out towards the guilt of the appellant and that no fault can be attributed to the finding of the Ld. Trial Court, which is based on proper appreciation of facts as well as law. Accordingly, Ld. Counsel for the State submitted that the present appeal deserves to be dismissed at the outset, as grossly malicious and devoid of merits. In support of the said contentions, reliance has been placed upon the decisions in; GD Kataria v. AVL Leasing & Finance Ltd., Crl. Rev. P. No. 774/2018, dated 03.02.2021, Bir Singh v. Mukesh Kumar, (2019) 4SCC 197 and Manoj Sharma v. Anil, (2012) 3 Crimes 114.
5. The arguments of Ld. Legal Aid Counsel/Ld. Counsel for the appellant as well as that of Ld. Counsel for the complainant/respondent no. 2, heard and the record(s), including the Trial Court Record, written arguments/written submissions filed by the parties, as well as the case laws relied upon by the parties in support of their respective contentions have been thoroughly perused.
6. At the outset, this Court deems it pertinent to note that against the impugned judgment 27.10.2022 and the consequent order of sentence dated 01.11.2022 (impugned judgment and order) of the Ld. Trial Court, the instant appeal was filed by the appellant only on 30.06.2023, as recorded under order dated 20.07.2023 of the Ld. Predecessor Judge. Notably, the Ld. Predecessor Judge vide the said order/order dated 20.07.2023, while considering the submissions made by/on behalf of the CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 10 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.12.17 15:11:13 +0530 appellant and respondent no. 2, was pleased to condone the delay of 210 (Two Hundred and Ten) days in filing the present appeal, inter alia, under the following observations;
"...The Court has heard arguments on application for seeking condonation of delay in filing of appeal. The trial Court passed order on sentence on 01.11.2022. The appeal should have been preferred on or before 01.12.2022. However, the appeal was filed on 30.06.2023. There is delay of around 210 days in filing of the appeal. The only ground furnished for non-filing of the appeal is that previous counsel did not inform him regarding proceedings of this case. This Court is not convinced with the cause pleaded for non-filing of appeal. Perusal of trial Court record would reveal that the trial Court issue Court notice to the appellant vide order dated 10.02.2023. However, he did not appear. Thereafter, warrant of attachment was issued against him vide order dated 06.05.2023. The appellant did not appear. The appellant was admitted on bail under Section 389 Cr. P.C. on 02.11.2022 in order to enable him to file appeal within limitation period.
It appears that the delay in filing of appeal is deliberate and intentional. Given the fact that right to first appeal is a valuable right and the first appellate Court is the final Court of facts and the appellate Court is enjoined to decide the appeal on merit irrespective of conduct of the appellant. Criminal matters has an element of liberty of a citizen and liberty of a citizen cannot be infringed on a technical ground. Accordingly, the arguments on application for seeking condonation of delay is allowed. The delay in filing of the appeal is condoned. To come up for arguments in appeal on 24.07.2023..."
(Emphasis supplied)
7. Before proceeding further with the appreciation of the merits of the case as well as rival contentions of/on behalf of the parties, this Court deems it pertinent to reproduce the relevant provisions under law, for the purpose of present adjudication, as under;
"118. Presumptions as to negotiable instruments- Until the contrary is proved, the following presumptions shall be made:
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(a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) as to date: that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance: that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer: that every transfer of negotiable instrument was made before its maturity;
(e) as to order of indorsement: that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamp: that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course: that the holder of a negotiable instrument is a holder in due course:
Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
*** *** ***
138. Dishonour of cheque for insufficiency, etc., of funds in the account-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with 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:
Provided that nothing contained in this section shall apply unless-
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2024.12.17
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(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.
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."
(Emphasis supplied)
8. At the outset, this Court observes that the objective behind the introduction of the provision(s) under Section 138 under the NI Act, by virtue of amendment/insertion in the year 1989, is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instrument. Notably, at the time of introduction of the said provision(s), the executive was cognizant of the fact that the civil remedies were found to be inadequate to curb the menace on the part of unscrupulous persons and an imminent need was felt for introduction of a penal provision to cease the propensity on the part of dishonest persons to exploit negotiable instruments for personal gains. Consequently, being wary of the impending requirement for a penal provision to bring about faith in monetary transactions, Chapter XVII was introduced in the NI Act, CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 13 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.12.17 15:11:26 +0530 comprising of the provisions from Sections 138 to 148. In particular, penal provisions under Section 138 NI Act were designed to1, "safeguard the faith of the creditor in the drawer of the cheque, which is essential to the economic life of a developing country like India. The provision has been introduced with a view to curb cases of issuing cheques indiscriminately by making stringent provisions and safeguarding interest of creditors" . Notably, the Hon'ble Supreme Court in Goa Plast (P) Ltd. v. Chico Ursula D'Souza, (2004) 2 SCC 235, while inter alia analyzing the intent of introduction of Section 138 NI Act as well as scope and objective of the said provision(s) observed as under;
"26. The object and the ingredients under the provisions, in particular, Sections 138 and 139 of the Act cannot be ignored. Proper and smooth functioning of all business transactions, particularly, of cheques as instruments, primarily depends upon the integrity and honesty of the parties. In our country, in a large number of commercial transactions, it was noted that the cheques were issued even merely as a device not only to stall but even to defraud the creditors. The sanctity and credibility of issuance of cheques in commercial transactions was eroded to a large extent. Undoubtedly, dishonour of a cheque by the bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious setback. Parliament, in order to restore the credibility of cheques as a trustworthy substitute for cash payment enacted the aforesaid provisions. The remedy available in a civil court is a long-drawn matter and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee."
(Emphasis supplied)
9. Relevantly, in order to attract culpability under the provisions of 138 NI Act, the prosecution is inter alia required to prove2; (a) that the cheque was issued/drawn by a person on an account maintained by him for payment of any sum of money to 1 Vinay Devanna Nayak v. Ryot Sewa Sahakari Bank Ltd., (2008) 2 SCC 305.
2N. Doraisamy v. Archana Enterprises, 1995 SCC OnLine Mad 25.
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another person from out of that account; (b) the cheque must have been issued against the discharge, either in whole or in part, of any debt or other liability, though, in the absence of proof to the contrary, it shall be presumed that it was issued for the same; and
(c) the cheque was returned by the bank unpaid either because the amount of money standing to the credit of that account is insufficient to honour the cheque; or because it exceeds the amount arranged to be paid from the account by an agreement with that bank. Reference in this regard is further made to the decision of Hon'ble Supreme Court in Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd., (2000) 2 SCC 745 , wherein the Hon'ble Court, while conscientiously analyzing the provisions under Section 138 NI Act inter alia explicated the ingredients of the said provision/offence, as under;
"10. On a reading of the provisions of Section 138 of the NI Act it is clear that the ingredients which are to be satisfied for making out a case under the provision are:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;
(ii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(v) the drawer of such cheque fails to make payment of the said amount of money to the payee CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 15 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.12.17 15:11:48 +0530 or the holder in due course of the cheque within 15 days of the receipt of the said notice."
(Emphasis supplied)
10. Here, it is further pertinent to observe that the statute/NI Act also provides for raising of a presumption/statutory presumption, casting/permitting a reverse burden on an accused and requiring the accused to prove the non-existence of the presumed fact. Quite evidently, Section 139 NI Act provides for/creates one such exception(s) to the general rule as to the burden of proof and shifts the onus on an accused to rebut the presumption envisaged under law, against him. Another such presumption under law being, under Section 118 NI Act. Reference in this regard, is made to the decision of the Hon'ble Supreme Court in Rajesh Jain v. Ajay Singh, (2023) 10 SCC 148 , wherein the Hon'ble Court noted in regard the foregoing as under;
"33. The NI Act provides for two presumptions:
Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that "unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability". It will be seen that the "presumed fact" directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138...
34. Section 139 of the NI Act, which takes the form of a "shall presume" clause is illustrative of a presumption of law. Because Section 139 requires that the Court "shall presume" the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase "unless the contrary is proved"..."
(Emphasis supplied)
11. Strikingly, the Hon'ble Supreme Court in Rangappa CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 16 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.12.17 15:11:53 +0530 v. Sri Mohan, (2010) 11 SCC 441, while painstakingly evaluating the intent and purpose behind the introduction of Section 139 under the Statute books/NI Act, observed as under;
"26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat [(2008) 4 SCC 54: (2008) 2 SCC (Cri) 166] may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.
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."
(Emphasis supplied)
12. Markedly, it is observed from above that the presumption envisioned under Section 139 NI Act not only pertains to the fact that the cheque in question was drawn in discharge of debt or liability, rather, also includes 1 a presumption that there exists a legally enforceable debt or liability at the time of 1 S. Natarajan v. Sama Dharman, (2021) 6 SCC 413.
CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 17 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.12.17 15:11:57 +0530
such drawing. Indisputably1, the burden to rebut the presumption lies on an accused, by establishing probable defence. Needless to further observe here that, though, in order to rebut the statutory presumptions2, "an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial", however, the law is settled3 that a bare denial of the passing of the consideration or of existence of debt/liability by an accused, would not serve the purpose or come to the aid/rescue of an accused. In fact, law is well settled that under such circumstances, it is expected from an accused to bring 'something which is probable', on record for getting the burden of proof shifted to the complainant. Reference in this regard is made to the decision in Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513, wherein the Hon'ble Apex Court, explicated the law in regard the foregoing as under;
"20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear 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 1 Rajaram v. Maruthachalam, 2023 SCC OnLine SC 48.2
Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18 SCC 106.3
Kishan Rao v. Shankargouda, (2018) 8 SCC 165.
CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 18 of 42
Digitally signed by
ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2024.12.17
15:12:00 +0530
proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non- existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act."
(Emphasis supplied)
13. Further, Section 118(a) NI Act provides for a presumption in favour of the complainant1 inter alia to the effect that the negotiable instrument or the endorsement was made or endorsed for consideration. Concomitantly, it is further apposite to make a reference to the presumption visualized under Section 118(e) NI Act at this stage, which pertains to the endorsement appearing upon negotiable instruments, being genuine. Relevantly, it is trite law that the said presumption operates in favour of the holder in due and in case an accused intends to rebut such presumption, he would be required to lead evidence, rather than a mere denial of his signatures on the cheque. Significantly, the Hon'ble Supreme Court in Ajitsinh Chehuji Rathod v. State of Gujarat, (2024) 4 SCC 453, while assessing the provisions under Section 118(e) NI Act, remarked as under;
"13. Section 118 sub-clause (e) of the NI Act provides a clear presumption regarding indorsements made on the negotiable instrument being in order in which they appear thereupon. Thus, the presumption of the indorsements on the cheque being genuine operates in favour of the holder in due course of the 1 Kundan Lal Rallaram v. Custodian, Evacuee Property, 1961 SCC OnLine SC 10.
CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 19 of 42
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date: 2024.12.17
15:12:07 +0530
cheque in question which would be the complainant herein. In case, the accused intends to rebut such presumption, he would be required to lead evidence to this effect.
14. Certified copy of a document issued by a bank is itself admissible under the Bankers' Books Evidence Act, 1891 without any formal proof thereof. Hence, in an appropriate case, the certified copy of the specimen signature maintained by the bank can be procured with a request to the court to compare the same with the signature appearing on the cheque by exercising powers under Section 73 of the Evidence Act, 1872."
(Emphasis supplied)
14. Ergo, being cognizant of the aforenoted principles, this Court would now proceed with the assessment of the rival contentions of the appellant and the respondent. Pertinently, the Ld. Legal Aid Counsel/Ld. Counsel for the appellant has outrightly contended that the particulars of the cheque such as the name of the payee, amount in words and figures, etc., were neither filled by the appellant nor the same were in his handwriting so as to attract culpability against him. In this regard, Ld. Legal Aid Counsel/Ld. Counsel for the appellant has referred to the appellant's response to Q.4 at the time of framing of notice under Section 251 Cr.P.C. on 24.09.2019, wherein the appellant in response to the question as to whether the particulars in the cheques in question were filled by him, responded, "None of the particulars, except signatures in the cheque in question were filled by me (after perusal of cheque)." Strikingly, under such factual scenario, Ld. Legal Aid Counsel/Ld. Counsel for the appellant has ardently contended that no liability under Section 138 NI Act can be attributed to/attracted against the appellant, especially when (as per the Ld. Legal Aid Counsel/Ld. Counsel for the appellant) the particulars appearing on the dishonoured cheques were not filled by the appellant. However, the said contention does not find favour with this Court. In fact, in CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 20 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.17 15:12:12 +0530 this regard, this Court is conscious of the settled law that filling of particulars of cheque by any person, other than the drawer does not invalidate the cheque and the liability under Section 138 NI Act/presumption under Section 139 NI Act would still be attracted under such situation(s), when the signatures on the cheque in question is duly admitted by the drawer/accused. Reference in this regard is made to decision in Bir Singh v. Mukesh Kumar, (Supra.), wherein the Hon'ble Supreme Court observed as under;
"33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.
34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
*** *** ***
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."
(Emphasis supplied)
15. Markedly, under the present situation, when both the appellant and the respondent affirm that the cheques in question/dishonoured cheques were signed and handed over by the appellant to the complainant/respondent no. 2, the contention of the Ld. Legal Aid Counsel/Ld. Counsel for the appellant that the cheques in question was not filled in the appellant's handwriting, CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 21 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.12.17 15:12:16 +0530 i.e., the date of cheque and/or the payee's details thereon were not filled by the appellant, albeit only subsequent, would not, in the considered opinion of this Court, come to any aid/rescue of the appellant, in view of the aforenoted judicial dictate(s). Needless to reiterate that the law is well settled that even when a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars and that the same would not, in itself, invalidate the cheque. On the contrary, even under such circumstances, presumption under Section 139 NI Act would be attracted, burden lying on the drawer of cheque to rebut the same as per law/by preponderance of probabilities. Correspondingly, in view of the aforesaid observation and judicial dictate, this Court does not further find credence in the submissions made by Ld. Counsel for the appellant pertaining to the cheques in question being invalidated in view of the provisions under Section 87 of the NI Act. Needless to mention, Section 87 of NI Act caters to a situation of any material alteration of a negotiable instrument, rendering the same as void, as against anyone who is a party thereto at the time of making such alteration and who does not consent thereto, unless it was made in order to carry out the common intention of the original parties. However, from a perusal of the records of the Ld. Trial Court it is unambiguously observed that not only has the said defence not being raised by the appellant for the first time in the present appeal, rather, nowhere under the deposition of the complainant, any suggestion put forth by the appellant that the particulars in cheques in question were filled in by the complainant, without appellant's consent or implied authority. Even otherwise, the superior courts have persistently avowed that filling up of the blank cheque by the payee is different from committing a material alteration. Markedly, CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 22 of 42 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.12.17 15:12:20 +0530 in this regard, reference is made to the decision of the Hon'ble High Court of Delhi in Ravi Chopra v. State and Ors., MANU/DE/0448/2008, wherein the Hon'ble Court, whilst being confronted with an akin situation, remarked as under;
"20. A collective reading of the above provisions shows that even under the scheme of the NI Act it is possible for the drawer of a cheque to give a blank cheque signed by him to the payee and consent either impliedly or expressly to the said cheque being filled up at a subsequent point in time and presented for payment by the drawee. There is no provision in the NI Act which either defines the difference in the handwriting or the ink pertaining to the material particulars filled up in comparison with the signature thereon as Constituting a 'material alteration' for the purposes of Section 87 NI Act. What however is essential is that the cheque must have been signed by the drawer. If the signature is altered or does not tally with the normal signature of the maker, that would be a material alteration. Therefore as long as the cheque has been signed by the drawer, the fact that the ink in which the name and figures are written or the date is filled up is different from the ink of the signature is not a material alteration for the purposes of Section 87 NI Act.
*** *** ***
22. Earlier in K.C. Devassia, St. Joseph's Chity Fund, Kaithavana v. Subramanian Potti II (1996) CCR 106 a learned Single Judge of the Kerala High Court came to the same conclusion by observing in para 5 as under:
The revision is filed against the order dismissing the application filed by the accused for sending the disputed cheque to a Hand Writing Expert and obtain his report. The contention raised by the revision petitioner before me is that a blank cheque was handed over to the complainant as security for the transaction between the two and the cheque was subsequently filled up by the complainant. Counsel adds that filling up of the cheques by the complainant will amount to a material alteration coming within the purview of Section 87 of the Act. When a blank cheque is given, the payee can fill it up as he is empowered to do so under Section 20 of the Act. Filling up of the blank cheque by the payee is different from committing a material alteration. No material alteration except the fact that the blank cheque which was handed over by the accused to the CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 23 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.17 15:12:24 +0530 complainant was filled up by him is alleged to invoke the provisions of Section 87. Counsel relied on the decisions reported in Loonkaran Sethia v. Ivan E. John AIR 1977 SC 366, Subba Reddy v. Neelapareddi AIR 1966 SC 267, Rattan Lal & Co. v. Assessing Authority Patiala MANU/SC/0289/1968: [1969]2SCR544 and Jayantilal Goel v. Zubeda Khanun MANU/AP/0099/1986: AIR1986AP120 to contend that a material alteration makes the instrument void and unenforceable. I have no quarrel regarding the proposition laid down in the above decisions. But as already stated, a material alteration is different from filling up a blank cheque by the payee..."
(Emphasis supplied)
16. Correspondingly, the Hon'ble High Court of Gujarat in Nikhil P Gandhi v. State of Gujarat & Ors., MANU/GJ/0882/2016, avowed in similar context, as under;
"47. If a principal or employer deputes his agent or employee to purchase an article and if the dealer fills up that signed blank cheque leaf showing the exact amount covered by the bill showing the price of the article sold then it cannot be said that what was handed over by the drawer of the cheque is only a signed blank cheque leaf. In such cases an implied authority to the trader/seller of the article to fill up the cheque leaf can certainly be inferred. Similarly, there may also be cases where at the time of settlement of the accounts, a particular amount was found payable by the drawer of the cheque to the other party and if a signed blank cheque entrusted to be filled up later is filled up in tune with the accounts, showing the actual amount payable by the drawer of the cheque to the other party, then also it can be said that there was the implied authority to fill up the signed blank cheque leaf. There may be such instances where the sum is ascertainable and the signed blank cheque leaf is given to fill up the same after ascertaining the same. In such cases there would be no difficulty to infer an implied authority given by the drawer. Simply because the cheque is seen filled up or written in the hand writing of another person it cannot lead to a conclusion that only a signed blank cheque leaf was given. The person signing the cheque may have difficulty due to many reasons to write the cheque and it might have been filled up by the payee or by another. In such cases it cannot be said that what was handed over was only a signed blank cheque leaf. In CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 24 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.12.17 15:12:28 +0530 all such cases the ultimate conclusion may depend upon the proof of the transaction and execution of the instrument. It must also be held that when it is a case that only a signed blank leaf was handed over by the accused, then he must offer satisfactory explanation as to the circumstances under which the signed blank cheque happened to be handed over. Considering the totality of the evidence and circumstances, it is for the court to draw the inference as to whether it was given with an implied authority to fill up the same showing the amount ascertained or ascertainable to discharge the debt or liability. Therefore, there may be such cases where implied authority can be inferred. But the contention that when a signed blank cheque leaf is handed over, it can never be filled up and that if it is filled up it would amount to a material alteration within the meaning of using Section 87 of the N.I. Act, does not stand to rhyme or reason. Similarly, the contention that Section 20 of the N.I. Act is applicable to an unfilled or blank cheque leaf also cannot be accepted. It would depend upon the facts of each case. Therefore, it is neither a case which attracts Section 87 of the N.I. Act nor is it a case where the complainant can rely upon Section 20 of the N.I. Act and contend that as a signed blank cheque leaf is given it gives an authority to fill up the same according to the whim and fancy of the payee. [See : P. Purushothaman Nair v. K. Sreekantan Nair, MANU/KE/0784/2013 : 2013 (4) ILR (Ker) 115]..."
(Emphasis supplied)
17. Apropos the present discourse, this Court now deems it apposite to deal with the contention of the Ld. Legal Aid Counsel/Ld. Counsel for the appellant at this stage inter alia to the effect that the notice/legal demand notice, as mandated under the provisions envisaged under Section 138 NI Act was not received by the appellant. In this regard, it is apposite to reproduce the relevant extracts from the notice under Section 251 Cr.P.C. framed against the appellant by the Ld. Trial Court vide order dated 24.09.2019, as under;
"Q:5. Whether the address mentioned on the legal demand notice is yours?
Ans. Yes.
*** *** *** Q:7. Did you receive the legal demand notice?
CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 25 of 42
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2024.12.17
15:12:33 +0530
Ans. No. I did not receive the legal demand notice from the complainant."
(Emphasis supplied)
18. Markedly, it is observed from above that, though, the appellant denied the receipt of legal notice/legal demand notice from respondent no. 2 as per the mandate of Section 138 NI Act, however, the address mentioned on the legal demand notice was affirmed by the appellant to be his. Correspondingly, at the time of recording of the statement under Section 313/281 Cr.P.C., the appellant affirmed that the address mentioned on the legal demand notice was his correct address, nonetheless, it was proclaimed by the appellant that he did not receive the same from respondent no.
2. Quite palpably, except for a bare denial of receipt of legal demand notice/notice dated 18.04.2018, the appellant has opted neither to lead any affirmative evidence in support of his said assertion nor is anything forthcoming from the cross examination of the authorized representative of respondent no. 2, to demonstrate that the legal demand notice was not issued and/or received by him, as mandated under law. In order to appreciate the said contention, this Court deems it prudent to outrightly make a reference to the provisions under Section 94 of the NI Act, which provides as under;
"94. Mode in which notice may be given-Notice of dishonour may be given to a duly authorized agent of the person to whom it is required to be given, or, where he has died, to his legal representative, or, where he has been declared an insolvent, to his assignee; may be oral or written; may, if written, be sent by post; and may be in any form; but it must inform the party to whom it is given, either in express terms or by reasonable intendment that the instrument has been dishonoured, and in what way, and that he will be held liable thereon; and it must be given within a reasonable time after dishonour, at the place of business or (in case such party has no place of business) at the residence of the party for whom it is intended.
CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 26 of 42
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2024.12.17
15:12:38 +0530
If the notice is duly directed and sent by post and miscarries, such miscarriage does not render the notice invalid."
(Emphasis supplied)
19. Correspondingly, reference is made to Section 27 of the General Clauses Act, 1897 (hereinafter referred to as the 'GC Act'), which provides as under;
"27. Meaning of service by post-Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give"
or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre- paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
(Emphasis supplied)
20. Consequently, upon a conscientious analysis of the aforesaid provisions, further in light of the provisions under Section 1141 of the Indian Evidence Act, 1872 ( hereinafter referred to as the 'Evidence Act'), this Court unwaveringly reaches a conclusion that once notice is sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been affected under law. However, it is only upon a drawer, under such circumstances, to rebut this presumption by leading evidence to the contrary. Reference in this regard is made to the decision of the Hon'ble Supreme Court 2 in N. 1 "114. Court may presume existence of certain facts-The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."
2Reference is further made to the decision in Ajeet Seeds Ltd. v. K. Gopala Krishnaiah, MANU/SC/0630/2014, wherein the Hon'ble Apex Court, iterated, "10. It is thus clear that Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the GC Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 27 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.12.17 15:12:42 +0530 Parameswaran Unni v. G. Kannan & Ors., MANU/SC/0327/2017, wherein the Hon'ble Court, whilst confounded with an akin situation, remarked as under;
"13. It is clear from Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act, 1872, that once notice is sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been effected. Then requirements under proviso (b) of Section 138 stands complied, if notice is sent in the prescribed manner. However, the drawer is at liberty to rebut this presumption."
(Emphasis supplied)
21. Apposite in this regard to further make a reference to the decision in C.C. Alavi Haji v. Palapetty Muhammed & Ors., MANU/SC/2263/2007, wherein the Hon'ble Apex Court, in the context of foregoing, earlier, observed as under;
15. As noticed above, the entire purpose of requiring a notice is to give an opportunity to the drawer to pay the cheque amount within 15 days of service of notice and thereby free himself from the penal consequences of Section 138. In Vinod Shivappa (supra), this Court observed:
One can also conceive of cases where a well- intentioned drawer may have inadvertently missed to make necessary arrangements for reasons beyond his control, even though he genuinely intended to honour the cheque drawn by him. The law treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that Clause (c) of proviso to Section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfil their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous been effected at the time at which the letter would have been delivered in the ordinary course of business." (Emphasis supplied).
CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 28 of 42
Digitally signed by
ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2024.12.17
15:12:51 +0530
drawers who never intended to honour the cheques issued by them, if being a part of their modus operandi to cheat unsuspecting persons.
16. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation, of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."
(Emphasis supplied)
22. Ergo, in light of the foregoing and considering the objective of mandating the issuance of legal demand notice, i.e., "protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfil their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque", this Court is in concurrence with the finding of the Ld. Trial Court that the averment of the Ld. Counsel for appellant/appellant regarding non-receipt of demand notice/legal demand notice by him would not come to the aid and rescue of the appellant in the instant case. Needless to reiterate that the appellant CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 29 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.12.17 15:12:55 +0530 not only admitted the address specified on the legal demand notice/notice dated 18.04.2018, as his correct address, rather, even failed to fulfil his obligation/make payment within a period of 15 (fifteen) days of service of summons on him, as per the dictate in C.C. Alavi Haji v. Palapetty Muhammed (Supra.). Clearly, the appellant is precluded to take advantage of his own wrong. Needless to reiterate that in light of the aforenoted judicial dictates, legal provisions as well as the facts and circumstances hereinunder noted, the contention of the appellant of 'alleged' non-receipt of legal notice dated 18.04.2018 would not come to his rescue, in the considered opinion of this Court.
23. Proceeding with the contention of Ld. Legal Aid Counsel/Ld. Counsel for the appellant that the cheques in question were issued as security to respondent no. 2 and that the complainant/respondent no. 2 has not been able to prove delivery of goods/material/cloth to the appellant, this Court deems it apt to reproduce the relevant extracts from the notice under Section 251 Cr.P.C. dated 24.09.2019, as under;
"Q. 2 Did you sign the cheque in question? Ans. Yes. The cheques in question bear my signatures.
Q.3 Did you give/handed over this cheque to the complainant?
Ans. The cheques in question were handed over by me to the complainant as blank signed security cheques.
Q.4. Have the particulars in the cheque filled by you, if not, who do you think has filled the same? Ans. None of the particulars, except signatures, in the cheque in question were filled by me (after perusal of cheques).
*** *** ***
Q:8. Do you have any liability towards the
complainant?
Ans. I have no liability towards the complainant. Q:9. Do you have any defence to make, if yes, what is your plea of defence?
CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 30 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.12.17 15:12:59 +0530
A: I used to purchase readymade garments from the complainant. The payments were used to be made in cash only. Four blank signed cheques were given by me to the complainant as security for payment in case of any default. The cheques have been misused by the complainant to file present case..."
(Emphasis supplied)
24. Conspicuously, it is noted from above that the appellant admitted to his signatures on the cheques in question as well as of issuance of the same to respondent no. 2. However, asserted that the same/dishonoured cheques were issued by him to respondent no. 2 as blank signed security cheques and that the same were misused by the complainant/respondent no. 2, despite the fact that the purchase of readymade garments used to be made by the appellant from respondent no. 2 against cash only. Concomitantly, at the time of recording of his statement in terms of the provisions under Section 313/281 Cr.P.C., the appellant inter alia asserted as under;
"Qn. It is evidence against you that you accused had approached the complainant and introduced himself as a businessman dealing in the cloths/ fashion industry and has requested to supply him cloth against cheque and assured the complainant that you will give regular business and that too in goods quantity. The complainant agreed to sell the cloth material against the cheque payment. In discharge of above said liability, you issued four post-dated cheques (cheques in question), which are Ex. CW-1/2 (colly), same were returned dishonored vide return memo(s) Ex. CW-1/3 (colly), after which, legal demand notice Ex. CW-1/4, was sent to you vide registered postal receipt(s) Ex. CW- 1/5, speed post is Ex. CW-1/6 (as per the affidavit of evidence filed by complainant). However, you did not make the payment within 15 days and complainant has given its evidence on said aspects vide affidavit Ex. CW-1/A. What do you want to say about this?
Ans. The cheque in question bears my signatures but other details were not filled by me. I have not received the legal demand notice from the complainant. The address mentioned on the same is my correct address. I used to purchase fabrics from the complainant. The cheque in question was given as CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 31 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.12.17 15:13:04 +0530 blank signed cheque for the security. The complainant has misused my cheques."
(Emphasis supplied)
25. Strikingly, even under the aforesaid statement, the appellant reiterated that he issued the cheques in question to the complainant/respondent no. 2 as blank signed cheques in the form of security. However, while further affirming that he/the appellant used to purchase fabric from the complainant, the appellant merely proclaimed that the said cheques were misused by the complainant/respondent no. 2. Quite evidently, except for asserting that the cheques were security and subsequently misused by the complainant/respondent no. 2, the appellant has not raised any plea to aver/contend that the cheques in question were ever sought to be returned by the appellant from respondent no. 2 or the appellant, had, at any point in time made any complaint/initiated any proceedings against respondent no. 2 against the alleged misuse of the cheques in question. On the contrary, at both such time, the appellant acknowledged his business relationship with the complainant/respondent no. 2, affirming that he used to purchase fabric from the complainant/respondent no. 2, though, against cash. Apposite for the purposes of present discourse to also refer to the relevant extracts from the cross examination of the authorized representative of the complainant/respondent no. 2, by/at the behest of the appellant, as under;
"XXX by Sh. ***, Ld. Counsel for the accused. I know the accused since 2017. The accused met me regarding business. I supplied the goods twice to the accused including the present transaction. I used to take payment either in cheque or cash. Vol. I accept payment through electronic mode also. It is correct that I am supplying goods only on orders. I supplied the material to the accused in January 2018. The accused gave me the cheques for the material supplied in January 2018. Vol. The accused requested not to present the said cheque in the month of February 2018 CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 32 of 42 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.12.17 15:13:08 +0530 and same were presented in the month of April 2018. The accused placed order verbally for supplying the goods. I had not taken any receiving from the accused for the goods supplied as he has made full payment through PDC cheques. I do not have any proof that the goods were supplied except bills and subsequent cheques. It is wrong to suggest that cheques in question were security cheques and were handed over blank. I do not know whether the cheques in question were filled by accused or not. It is correct that the particulars in the cheques were not filled before me. It is wrong to suggest that I have received payment in cash in lieu of cash and misused the cheques. It is wrong to suggest that said cheques were security cheques..."
(Emphasis supplied)
26. Pertinently, from the aforesaid, it is unambiguously observed that it was asserted on behalf of the complainant/respondent no. 2 that the goods were supplied to the appellant against bill in the month of January, 2018, against which the appellant had issued cheques in question, with a request for deferred presentation thereof in the month of February, 2018. Thereupon, as per the authorized representative of respondent no. 2/complainant, the cheques were presented for encashment in April, 2018. Undoubtedly, it was affirmed on behalf of the complainant that no receiving of supply of goods was taken and that there was no proof except the bills and cheques in question with the complainant to corroborate the supply/sale of fabric/cloth/material/goods in question, however, even under the aforesaid cross examination, the appellant did not deny or put a formal suggestion as to non-supply of goods to him by the complainant/respondent no. 2. On the contrary, Ld. Counsel for the appellant merely suggested that the payment was already made in cash and the cheques in question were misused by the complainant/respondent no. 2. Clearly, there is nothing on record to lead credence to the assertion of the Ld. Counsel for the CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 33 of 42 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.12.17 15:13:13 +0530 appellant/appellant that no goods were supplied by the complainant/respondent no. 2 to the appellant, in light of the appellant's/Ld. Counsel for the appellant's own assertion/suggestion to the authorized representative of the complainant/respondent no. 2 that the payment had already been made by the appellant in case. In this regard, this Court deems it apposite here to note that it is no longer res integra1 that suggestion by defence during cross examination amounts to admission by accused. Undoubtedly, in order to rebut the presumption under Section 139 NI Act, it is not mandated 2 on an accused to step in a witness box in support of his defence. In fact, the law is trite 3 that the standard of proof for rebutting the presumption is that of preponderance of probabilities and that, "it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence". However, in the facts and circumstances brought forth, this Court is in concurrence with the finding of the Ld. Trial Court that the appellant has miserably failed to rebut the presumption under Section 139 NI Act. Needless to reiterate, the appellant himself admitted his business relationship with the complainant/respondent no. 2; the appellant, though, asserted that he used to make payments in cash, however, failed to adduce any proof/receipts against said payment or put the same to the 1 Reference is made to the decision in Balu Sudam Khalde v. State of Maharashtra, 2023 SCC OnLine SC 355, wherein the Hon'ble Supreme Court, remarked, "38. Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.***
39. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition we cannot agree with the submission canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence counsel in the cross-examination does not deserve any value or utility if it incriminates the accused in any manner." (Emphasis supplied) 2 Basalingappa v. Mudibasappa, (2019) 5 SCC 418 and Ammar Ahmad Khan v. State (NCT of Delhi), 2023 SCC OnLine Del 5779.
3Rajaram v. Maruthachalam, 2023 SCC OnLine SC 48.
CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 34 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.12.17 15:13:18 +0530
authorized representative of the complainant/respondent no. 2 during his cross examination; the cheques in question were dishonoured for the reasons of 'insufficiency of funds', in contradistinction to the same being directed to be stopped for encashment/'Stop Payment', etc.; the appellant has not brought forth any material on record to demonstrate that he made any complaint/initiated any proceedings against the complainant for 'so called' misuse of cheques in question; appellant did not even aver or prove that he ever sought return of the cheques in question from the complainant/respondent no. 2, had the same being issued as security cheques and payments already made in case; the appellant, even under the cross examination of the authorized representative of the complainant did not content/suggest that no goods were supplied by the complainant as asserted in the complaint, rather, merely suggested that the payment had already been made in cash; and the version of the complainant/respondent no. 2 has been consistent and no material contradictions are forthcoming even under the cross examination of the authorized representative of the complainant/respondent no. 2. Consequently, upon a scrupulous analysis of the documents and material placed on record, this Court finds itself difficult to be convinced with the version of incidents or the probable defence, as put forth by the appellant herein.
27. Conspicuously, in light of the foregoing, this Court unambiguously reiterates that the defence of the appellant pertaining to the dishonoured cheques being issued for security or there being no liability as the amount against the goods supplied had already been paid by the appellant to the complainant/respondent no. 2 in cash, does not appeal to the senses of this Court, for the reasons noted hereinabove. On the contrary, CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 35 of 42 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.12.17 15:13:24 +0530 the said defence not only, in considered opinion of this Court, an afterthought, flimsy and insubstantial, rather, unbelievable, and unconvincing. Needless to reiterate that to rebut the statutory presumption under Section 118/139 NI Act, it is not expected from an accused/appellant herein to prove his defence ' beyond reasonable doubt' and that the same may be done by bringing 'something which is probable' on record for getting the burden of proof shifted to the complainant. However, in the instant case, the appellant has failed to bring forth any such facts and circumstances, upon consideration of which, this 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." On the contrary, as aforenoted, the inherent inconsistencies and discordances in the various version put forth by the appellant in his defence, make the same highly implausible and trifling. Correspondingly, this Court concurs with the finding of the Ld. Trial Court that the appellant has not been able to rebut the initial presumption raised against him.
28. Conclusively, in conspectus of the above and inter alia keeping in view consistent testimony of the complainant/respondent no. 2/CW-1 as well as the documents placed on record, the only conclusion which can be arrived at in the facts and circumstances brought forth pertains to the guilt of the appellant for the commission of the offence under Section 138 NI Act. Needless to mention that the defence raised by the appellant are not only unworthy and uninspiring confidence, rather, irreconcilable as well as unworthy of credence. Accordingly, this Court has no hesitation in reasonably reaching a conclusion that the complainant has proved its case 'beyond CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 36 of 42 ABHISHEK Digitally signed by ABHISHEK GOYAL GOYAL Date: 2024.12.17 15:13:32 +0530 reasonable doubt' against the appellant for the offence under Section 138 NI Act. On the contrary, the appellant has failed to raise a probable defence/defence by 'preponderance of probabilities' in his favour for the reasons hereinunder noted.
29. Significantly, in as much as the aspect of sentence awarded to the appellant by the Ld. Trial Court is concerned, this Court, at the outset, notes that the superior courts have persistently cautioned towards the grant of just and appropriate sentence, post- conviction, as well as cautioned1 that mere long pendency of case is no ground to award lesser sentence. In fact, in the instances of cheque dishonour cases, law is settled 2 that the sentence imposed must be such as to give proper effect to the object of the legislation and to dissuade unscrupulous drawers of such negotiable instruments from taking advantage of their own wrongs. In this regard, reference is made to the decision in Suganthi Suresh Kumar v. Jagdeeshan, (2002) 2 SCC 420, wherein the Hon'ble Apex Court unswervingly opined as under;
"12. The total amount covered by the cheques involved in the present two cases was Rs 4,50,000. There is no case for the respondent that the said amount had been paid either during the pendency of the cases before the trial court or revision before the High Court or this Court. If the amounts had been paid to the complainant there perhaps would have been justification for imposing a flea-bite sentence as had been chosen by the trial court. But in a case where the amount covered by the cheque remained unpaid it should be the lookout of the trial Magistrates that the sentence for the offence under Section 138 should be of such a nature as to give proper effect to the object of the legislation. No drawer of the cheque can be allowed to take dishonour of the cheque issued by him light-heartedly. The very object of enactment of provisions like Section 138 of the Act would stand defeated if the sentence is of the nature passed by the trial Magistrate. It is a different matter if the accused 1 State of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13.2
H. Pukhraj v. D. Parasmal, (2015) 17 SCC 368.
CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 37 of 42
Digitally signed by
ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2024.12.17
15:13:37 +0530
paid the amount at least during the pendency of the case."
(Emphasis supplied)
30. Correspondingly, the Hon'ble Supreme Court in R. Vijayan v. Baby, (2012) 1 SCC 260 , while fervently professing towards the grant of reimbursement of the loss by way of compensation to the complainant/victim in cheque dishonour cases, avowed as under;
"17. The apparent intention is to ensure that not only the offender is punished, but also ensure that the complainant invariably receives the amount of the cheque by way of compensation under Section 357(1)
(b) of the Code. Though a complaint under Section 138 of the Act is in regard to criminal liability for the offence of dishonouring the cheque and not for the recovery of the cheque amount (which strictly speaking, has to be enforced by a civil suit), in practice once the criminal complaint is lodged under Section 138 of the Act, a civil suit is seldom filed to recover the amount of the cheque. This is because of the provision enabling the court to levy a fine linked to the cheque amount and the usual direction in such cases is for payment as compensation, the cheque amount, as loss incurred by the complainant on account of dishonour of cheque, under Section 357(1)
(b) of the Code and the provision for compounding the offences under Section 138 of the Act. Most of the cases (except those where liability is denied) get compounded at one stage or the other by payment of the cheque amount with or without interest. Even where the offence is not compounded, the courts tend to direct payment of compensation equal to the cheque amount (or even something more towards interest) by levying a fine commensurate with the cheque amount.
A stage has reached when most of the complainants, in particular the financing institutions (particularly private financiers) view the proceedings under Section 138 of the Act, as a proceeding for the recovery of the cheque amount, the punishment of the drawer of the cheque for the offence of dishonour, becoming secondary.
18. Having reached that stage, if some Magistrates go by the traditional view that the criminal proceedings are for imposing punishment on the accused, either imprisonment or fine or both, and there is no need to compensate the complainant, particularly if the complainant is not a "victim" in the CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 38 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.12.17 15:13:42 +0530 real sense, but is a well-to-do financier or financing institution, difficulties and complications arise. In those cases where the discretion to direct payment of compensation is not exercised, it causes considerable difficulty to the complainant, as invariably, by the time the criminal case is decided, the limitation for filing civil cases would have expired. As the provisions of Chapter XVII of the Act strongly lean towards grant of reimbursement of the loss by way of compensation, the courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine up to twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation. Direction to pay compensation by way of restitution in regard to the loss on account of dishonour of the cheque should be practical and realistic, which would mean not only the payment of the cheque amount but interest thereon at a reasonable rate. Uniformity and consistency in deciding similar cases by different courts, not only increase the credibility of cheque as a negotiable instrument, but also the credibility of courts of justice."
(Emphasis supplied)
31. Ergo, wary of the aforenoted judicial dictates, facts and circumstances of the present case as well as the arguments addressed by the Ld. Counsel for the appellant as well as the respondent, this Court unswervingly observes that the Ld. Trial Court has acted quite leniently with the appellant by awarding sentence/rigorous imprisonment for a period 04 (four) months and fine/compensation to a tune of Rs. 3,00,000/- (Rupees Three Lakhs only), to be paid by the appellant to respondent no. 2/complainant, in default of payment of compensation, the appellant, being further directed to undergo rigorous imprisonment for a further period of 02 (two) months, under the impugned order/order of sentence 01.11.2022. Needless to mention that in the instant case, substantial time has lapsed since the initiation of the complaint proceedings by the respondent in the year, 2018, culminating in its CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 39 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.17 15:13:46 +0530 adjudication in the present appeal, the complainant/respondent no. 2, being embroiled in litigation for dishonoured cheque during the interregnum. Needless to further mention that the appellant has failed to demonstrate any mitigating factor, convincing this Court to grant any relaxation in favour of the appellant. On the contrary, from a perusal of the records of the Ld. Trial Court and this Court, it is observed that the conduct of the appellant has been grossly dilatory, delaying the proceedings, both, before the Ld. Trial Court as well as this Court by repeated deliberate non-appearance and non-compliance of the directions passed by the Ld. Trial Court as well as this Court. Further, it is observed that on an early occasion, Ld. Predecessor Judge pleased to refer the parties to mediation, whereupon, settlement agreement dated 03.08.2023, was executed between the appellant and respondent No. 2. However, despite the same, the appellant deliberately failed to abide by the said settlement agreement. Subsequently, from perusal of the case record, it is observed that the appellant even failed to appear before this Court on several occasions. Pertinently, it is only when the judgment was reserved in the present case on 30.09.2024, fresh vakalatnama was filed on behalf of the appellant, seeking permisson to readdress arguments, which was permitted by this Court. Subsequently, on 04.12.2024, Ld. Counsel for the appellant requested for re-reference of the case to mediation, which was denied by/on behalf of respondent No. 2. Infact on the said date, Ld. Counsel for respondent No. 2 had specifically submitted that even the earlier mediation settlement terms cannot be complied with by the appellant for the timeframe specified under the said agreement had already lapsed. Ld. Counsel for the appellant has further entreated that the parties may be referred to mediation as a matter of right. However, it is settled law that mediation cannot be CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 40 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.12.17 15:13:51 +0530 claimed as a matter of right and in no instance, can be permitted to be exploited by unscrupulous persons for their own advantage. Needless to mention that the conduct of the appellant has clearly been such so as to not entitle him to any benefit even on equity, in light of the record of the present case. Clearly, under such circumstances, this Court is of the considered opinion that no interference in the quantum of sentence awarded by Ld. Trial Court is warranted by this Court, while determining the present appeal, as the sentence awarded to the appellant by the Ld. Trial Court not only corresponds with the crime involved, rather, falls in tandem with the resolute declarations of the superior courts, as hereinunder noted. However, it is apposite to note here that during the proceedings before this Court, the appellant deposited 20% (twenty percent) of the fine amount, in terms of the provisions under Section 148 NI Act by means of demand drafts, bearing no. 213412 dated 13.12.2023 and 213413 dated 14.12.2023 for a sum of Rs. 40,000/- (Rupees Forty Thousand only) and Rs. 20,000/- (Rupees Twenty Thousand only), respectively, which have since been released in favour of respondent no. 2, pursuant to orders dated 17.05.2024 and 11.07.2024 of this Court, in terms of the provisions under Section 148(3) NI Act, which requires due consideration while determining the quantum of fine/compensation directed to be paid by the appellant in the instant case. Needless to mentioned that though this Court holds highest regard to the decision relied upon by the Ld. Counsel for the appellant, however, the same is not come to the aid and rescue of the appellant as the facts of the present case are clearly distinguishable.
32. Conclusively, in view of the above discussion, the present appeal deserves to be rejected/dismissed and is hereby CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 41 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.12.17 15:13:55 +0530 dismissed. The judgment dated judgment dated 27.10.2022 and the consequent order of sentence dated 01.11.2022, passed by learned Metropolitan Magistrate-01/Ld. MM-01 (NI Act), Central, Tis Hazari Courts, Delhi in case bearing; "Fancy Creations Pvt. Ltd. v.
Brijesh Kumar, Unique/New Case No. 12147/2018", convicting the appellant for the offence punishable under Section 138 Negotiable Instrument Act and awarding the appellant; rigorous imprisonment for a period of 04 (four) months and fine/compensation to a tune of Rs. 3,00,000/- (Rupees Three Lakhs only), to be paid by the appellant to respondent no. 2/complainant, in default of payment of compensation, the appellant, being further directed to undergo rigorous imprisonment for a further period of 02 (two) months, respectively, are hereby upheld. Appellant is, accordingly, taken into custody to undergo the remaining period of his sentence. Needless to reiterate that the amount released in favour of the complainant/respondent no. 2 in terms of the orders dated 17.05.2024 and 11.07.2024 of this Court, in terms of the provisions under Section 148(3) NI Act, i.e., a sum of Rs. 60,000/- (Rupees Sixty Thousand only) shall be adjusted from the fine/compensation amount to be paid by the appellant to respondent no. 2/complainant. Lastly, the appellant shall be entitled to Section 428 Cr.P.C. for the period, if any, undergone.
33. Trial Court Record be sent back along with a copy of this order/judgment. Copy of this order/judgment be also given dasti to the appellant.
34. Appeal file be consigned to record room after due compliance.
Digitally signed by
ABHISHEK ABHISHEK
GOYAL
GOYAL Date: 2024.12.17
15:13:59 +0530
Announced in the open Court (Abhishek Goyal)
on 17.12.2024. ASJ-03, Central District, Tis Hazari Courts, Delhi CA No. 160/2023 Brijesh Kumar v. State & Anr. Page No. 42 of 42