Delhi District Court
Virender Kumar vs State (N.C.T. Of Delhi) on 7 March, 2022
IN THE COURT OF SH. SUSHIL ANUJ TYAGI, ASJ (FTSC)
(RC) SOUTH WEST DISTRICT, DWARKA COURTS, NEW
DELHI.
CNR No.DLSW010028572017
CA No. 84/2017
Virender Kumar,
S/o Sh. Chiranji Lal,
R/o H. No. 11, VPO Matiala,
New Delhi110079. .....Appellant
VS.
1. State (N.C.T. of Delhi)
2. Suresh Kumar,
S/o Sh. Kewal Ram,
R/o Plot No.3A, Flat No.702A,
Anmol Apartment, Sector2,
Dwarka, New Delhi110075. .....Respondents
Date of institution of appeal : 22.03.2017
Date on which judgment reserved : 15.02.2022
Date on which judgment pronounced : 07.03.2022
JUDGMENT
1. This is an appeal filed by the appellant Virender Kumar U/s 374 (3) Cr.P.C. against the judgment dated 13.02.2017 and the order on sentence dated 21.02.2017 passed by the court of Ms. Amrita Tonk, ld. MM-01, NI Act, Central, Tis Hazari Virender Kumar Vs. State & Anr.
CA No. 84/2017 1 of 23 Courts in CC No.534685/2016, titled as 'Suresh Kumar Vs. Virender Kumar', U/s 138 of Negotiable Instruments Act.
2. The brief facts of the case, as per the complaint, are that the appellant/accused was carrying on the business of financial investment, claiming himself to be the authorised agent of M/s Amrit Sagar Group and had invited the public to make profitable investment in M/s Amrit Sagar Group with the promise of assured incentive/profit of 264%. The complainant believing the promise of the appellant/accused made large investment in his company and the appellant/accused had entered into separate mutual agreements with the complainant regarding the investments made by the complainant. It is alleged that the appellant/accused had thereupon issued post-dated cheques to the complainant towards the return of the investments along with the assured interest. It is further submitted that three of the aforesaid cheques so issued by the appellant/accused bearing No. 035310 dated 18.08.2009 for Rs.22425/-, bearing No. 035311 dated 18.09.2009 for Rs. 22425/- and bearing No. 035312 dated 18.10.2009 for Rs. 22425/-, all drawn on IDBI Bank Limited, Janakpuri Branch, New Delhi (hereinafter referred to as the 'cheques in question') when presented for encashment were returned dishonoured with the remarks "Account Closed" vide bank Virender Kumar Vs. State & Anr.
CA No. 84/2017 2 of 23 returning memo dated 27.10.2009. Thereafter, complainant/respondent sent a legal demand notice dated 18.11.2009 to the appellant/accused but the appellant/accused failed to make the payment of the dishonoured cheques within the statutory period of fifteen days.
3. The respondent/complainant filed the complaint U/s 138 of Negotiable Instruments Act and led pre-summoning evidence, upon which the accused was summoned U/s 138 of Negotiable Instruments Act and vide order dated 25.10.2010 the accusation was explained to the accused and his plea was recorded by the Ld. Trial Court in terms of Section 263(g) read with section 313 and section 281 (6) Cr. P.C., which is as follows:-
"I do not know the complainant. The cheques in this present complaint is Ex. CW-1/1 is drawn on my bank account and bears my signature. However, other columns were not filled by me. I had never handed over these cheques to the complainant. My bank account was seized with the police authorities prior to the date of the cheques. I had never taken any loan from the complainant as claimed by him. The signatures appearing on the acknowledgment card is not mine. I had never received any notice in the Tihar Jail. I had never issued these cheques to the complainant. I could not issue the cheque since on the relevant date I was in the Tihar Jail.
I am innocent. I want to lead defence evidence."
Virender Kumar Vs. State & Anr.
CA No. 84/2017 3 of 23
4. The respondent/complainant led post summoning evidence by adopting his affidavit Ex. CW-1/X, which was tendered in pre-summoning evidence and also relied upon the documents Ex. CW-1/A to Ex. CW-1/F and the complainant was duly cross examined on behalf of the appellant/accused.
5. The appellant/accused was examined U/s 313 Cr. P.C. and all the incriminating evidence was put to him, to which he replied that he is innocent and he has been falsely implicated in this case. He stated that he has never handed over the cheques in question to the complainant and that his bank account was seized by the police prior to the date mentioned on the cheques. He further stated that he had never taken any loan from the complainant and that the cheques were handed over by Mr. Ishwar Dayal to the complainant, who was corporate head of Amrit Sagar Group. He further stated that the investment made by the complainant are subject to market risk and to this effect separate agreement had been executed. He opted to lead defence evidence, however, no evidence was led by him despite granting several opportunities and thereafter, D.E. was closed.
6. The Ld. Trial Court after hearing the final arguments from both the sides, vide its impugned judgment dated 13.02.2017 convicted the appellant/accused U/s 138 of Negotiable Virender Kumar Vs. State & Anr.
CA No. 84/2017 4 of 23 Instruments Act, 1881 and vide impugned order on sentence dated 21.02.2017, passed the sentence of simple imprisonment of one year and also directed the appellant/accused to pay fine of Rs. 2,79,000/-, out of which Rs.2,69,000/- shall be payable to the complainant as compensation U/s 357(1) Cr.P.C. and rest of the amount i.e. Rs.10,000/- shall be deposited with the State as fine and in default of payment of fine, the convict shall undergo further simple imprisonment for three months.
7. Feeling aggrieved the appellant/accused challenged the aforesaid impugned judgment and order on sentence of the Ld. Trial Court by filing the present appeal on several grounds, alongwith the application U/s 391 Cr. P.C. seeking permission to take additional evidence on behalf of the appellant/accused.
8. Ld. Predecessor vide order dated 06.04.2017 allowed the application U/s 391 Cr. P.C. of the appellant/accused and sent the Trial Court Record back to the Trial Court for recording additional evidence and also directed the Ld. Trial Court to send the file back after recording of additional evidence to this Appellate court for disposal of this appeal.
9. In compliance thereof, Ld. Trial Court recorded evidence led on behalf of the appellant/accused. In defence evidence, Virender Kumar Vs. State & Anr.
CA No. 84/2017 5 of 23 appellant/accused examined himself U/s 315 Cr. P.C. as DW1 and was cross-examined on behalf of the complainant. One more witness was summoned from EOW Cell however, the said witness was discharged unexamined, on the statement of Ld. Counsel for the complainant recorded on 07.08.2019, the contents of which were as follows:-
"I state that my client/complainant had made an investment with the accused and in lieu of the said investment the accused had issued the cheques in question and I could not dispute regarding execution of the document in respect of the investment made with the accused by the complainant."
10. Accused closed his defence evidence and the file was again sent to this Appellate Court for disposal of the present appeal.
11. Ld. Counsel for the appellant/accused has contended that the complainants are related to each other as Renu Sharma is wife of Ishwar Dayal and Sunil Kumar, Suresh and Jaswant Singh are brothers and after the arrest of accused in FIR No.77/09, PS EOW, U/s 420/406/34 IPC, they had misused the profit cheques. It is further argued that the Ld. Trial Court has failed to appreciate that the complainant made the investments on market risk and he used the post-dated cheques, which were given to the complainant after three days of the investment and no liability has arisen at such time Virender Kumar Vs. State & Anr.
CA No. 84/2017 6 of 23 of investment when the cheques of profit were given to the complainant. It is further argued that the complainant did not tell, which amounts were invested and how much amount he has received and how many cheques were used by the complainant.
12. Ld. Counsel has further argued that complainant is relative of Ishwar Dayal, who was corporate head of the company Amrit Sagar Group of appellant/accused and was well aware that the business of investment was based on market risk. It is argued that the appellant/accused was arrested in case FIR No.77/09, U/s 420/406 IPC, PS EOW Malviya Nagar and Ishwar Dayal had filled all the alleged cheques in his handwriting and distributed to other complainants when investment was made.
13. Ld. Counsel for the appellant/accused has further argued that Ishwar Dayal is co-accused with the appellant/accused in the FIR No. 77/09 PS EOW and is facing trial before the court of Ld. ACMM, Tis Hazari, Delhi.
14. Ld. Counsel for the appellant/accused has also filed written arguments and it is mainly argued that agreements were executed between the appellant/accused and the respondents when the respondents invested in the business of financial investment of the appellant/accused. It is submitted that the Virender Kumar Vs. State & Anr.
CA No. 84/2017 7 of 23 Hon'ble High Court of Delhi in Crl LP 310/2010 in the matter of Ram Sharan Pal Vs. Virender Kumar, vide order dated 10.05.2011 upheld the judgment of acquittal passed by the court of Sh. Vishal Gogne, Ld. M.M. Dwarka Courts in CC No. 2952/1. It is argued that the present case is also based on the similar facts and the appellant/accused is entitled to be acquitted in the present case as well.
15. Ld. Counsel for respondent/complainant has filed reply to the present appeal. It is argued that the Ld. Trial Court has rightly passed the judgment in favour of the respondent/ complainant. It is further argued that the appeal is misconceived and is liable to be dismissed as the appellant/ accused is a chronic offender and has cheated many persons of their hard earned money, by alluring the respondent/complainant and many other investors through false promises of assured profits to the tune of 264% of the amount invested and succeeded in his malafide motive, by misusing the faith reposed in him by issuance of several cheques in discharge of his legal liability to the respondent/complainant. It is further argued that after dishonouring of the cheques, given by the appellant/accused, he has not even replied to the legal demand notice sent by the respondent/complainant, which clearly indicates that he had admitted the contents of the said notice at the very first Virender Kumar Vs. State & Anr.
CA No. 84/2017 8 of 23 instance. It is further argued that at the time of making an application U/s 145(2) of N.I. Act, the appellant/accused did not make any endeavour to disclose his defence in accordance with the provisions of Negotiable Instruments Act. It is argued that at the time of recording the plea of the appellant/accused on 25.10.2010 before the Ld. Trial Court, the appellant/accused admitted his signatures on the said cheques but did not take any defence and in the entire cross- examination of respondent/complainant, he took different stands. It is argued that the defence undertaken by the appellant in his statement U/s 263(g), 313 read with Section 281(6) C.P.C. is not in consonance with the plea taken by him in the present appeal and he has adopted inconsistent pleas throughout the trial to evade the clutches of law that were set in motion upon the complaint of respondent/complainant. It is further argued that the factum of the other complainants namely Ms. Renu being wife of Ishwar Dayal and Sh. Suresh, Jaswant Singh or Sunil Kumar being relative of Ishwar Dayal, does not absolve or dilute the legal liability of the appellant/accused towards honouring of the cheques issued by him to the respondent. It is argued that the appellant/accused has failed to file the charge-sheet of FIR No.77/2009, which was filed way back in the year 2009 itself, in which the respondent/complainant was made a co-
Virender Kumar Vs. State & Anr.
CA No. 84/2017 9 of 23 accused, for the consideration of the court and this fact even finds mention in the 6th para of the impugned judgment of the Ld. Trial Court. It is argued that the appellant/accused has admitted in his statement U/s 313 Cr.P.C. that he had entered into an agreement with the respondent/complainant regarding the investments and had also issued the cheques in question to the respondent/complainant towards the investments made by respondent/complainant. It is further argued that the appellant/accused has failed to provide in his defence, any detail with regard to 'market risk', which was involved in the investments of respondent/complainant alongwith the investments of other complainants.
16. Ld. Counsel for the respondent/complainant has also filed written arguments. It is mainly argued that the appellant/accused has taken contradictory defences during the trial of the present case. It is argued that in the application 145 (2) NI Act the appellant/accused stated that the cheques were never issued, however, in his statement U/s 313 Cr. P.C. he stated that security cheques were issued to the complainant for the investments made by the complainant. It is argued that the appellant/accused has admitted his signatures on the impugned cheques and all the ingredients of section 138 NI Act have been established in the present case. The Ld. Counsel placed reliance upon the judgment of Virender Kumar Vs. State & Anr.
CA No. 84/2017 10 of 23 Hon'ble Supreme Court of India in M/s Gimpex Pvt Ltd. Vs. Manoj Goel, Crl Appeal No. 1068/2021. It is prayed that the present appeal is liable to be dismissed. It is argued that as per the contention of the appellant/accused the returns were subject to accumulation of profit, however, there is no averment in the Trial Court Record to establish that the appellant/accused had invested the amount which he had received from the complainant and therefore it is crystal clear that the appellant/accused had hoodwinked the complainant for investing amount in the firm of the appellant/accused and while issuing the impugned cheques as assurances towards the repayment of the invested amount. It is further argued that the Hon'ble Supreme Court of India in Sunil Todi & Ors. Vs. State of Gujarat, Crl. Appeal No. 1446 of 2021 has laid down that the security cheques will attract the liability U/s 138 NI Act, if the said cheques are dishonoured on presentation. Ld. Counsel also relied upon the judgment of the Hon'ble Supreme Court of India in Sripati Singh (since deceased) through his son Gaurav Singh Vs. State of Jharkhand and anr, Crl Appeal No. 1269-1270/2021 to support his arguments that the security cheques are covered U/s 138 NI Act. It is prayed that the present appeal is liable to be dismissed.
17. Heard. Record perused.
Virender Kumar Vs. State & Anr.
CA No. 84/2017 11 of 23
18. It is trite in law that in the prosecution under section 138 Negotiable Instruments Act, the statutory presumptions U/s 118 and 139 Negotiable Instruments Act stands in favour of the complainant. Once the complainant proves that the negotiable instrument/cheque is executed by the maker in favour of the holder of the cheque, the law presumes that the same is drawn for consideration and the holder of the same received it in discharge of any debt or liability. The burden shifts on the shoulder of the accused to prove to the contrary, which he can do so by demolishing the case of complainant through cross-examination or by leading any cogent evidence in defence. The burden on the accused is not heavy as that of prosecution but only of preponderance of probabilities.
19. The Hon'ble Supreme Court of India in K. Bhaskaran Vs. Sankaran Vaidhya Balan (1999) 7 SCC 510 summarized the ingredients of the offence U/s 138 NI Act. The relevant extract is reproduced below for reference:-
"The offence U/s 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning of the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make the payment within 15 days of the receipt of notice."
Virender Kumar Vs. State & Anr.
CA No. 84/2017 12 of 23
20. In the present case, the respondent/complainant has discharged his burden of prima-facie case by leading evidence by satisfying the basic ingredients of Section 138 of Negotiable Instruments Act. The burden shifted upon the accused to rebut the presumptions U/s 118 & 139 Negotiable Instruments Act standing in favour of the complainant. This court will now analyze whether the appellant/accused has been able to indirectly show the preponderance of probabilities in her favour by leading defence evidence or by the cross examination of the prosecution witnesses or by pointing out the fallacies in the prosecution version to prove the non- existence of any debt or liability.
21. The admitted facts of the present case are that the appellant/accused advertised for public investment in his firm namely Amrit Sagar Group and many people including the respondent/complainant invested money in the projects of the appellant/accused. The appellant/accused has also admitted that he was the sole proprietor of his proprietorship concern and he has opened the bank account in the name of Amrit Sagar Group which was operated by him. It is also not in dispute that the appellant/accused used to enter into a mutual agreement with the public persons who used to invest money in his proprietorship concern. It is an admitted fact that in the present case the mutual agreement between the Virender Kumar Vs. State & Anr.
CA No. 84/2017 13 of 23 respondent/complainant and the appellant/accused was entered into in which the terms and conditions of the investment were mentioned. Two of such mutual agreements between the appellant/accused and Jaswant Singh are Ex. DW1/C1 and Ex. DW1/C2. The appellant/accused also admitted that he also used to handover the receipt to the investors who used to invest money in his concern and one of such document is Ex. DW1/C3 bearing his signatures at point A, which was executed between him and Sunil Kumar.
22. In the present case, the appellant/accused has not disputed the investment made by the respondent/complainant. The appellant/accused has also admitted his signatures on the impugned cheques. It is one of the defence of the appellant/accused that the other contents in the impugned cheques were filled by Ishwar Dayal who was the corporate head in his firm, but this sole contention is of no help to the appellant/accused as it is not the case of the appellant/accused that Ishwar Dayal used to fill the details without his authority. Merely because the impugned cheques have been filled by Ishwar Dayal, does not dissolve the liability of the appellant/accused U/s 138 NI Act. The relation between Ishwar Dayal and the respondent/complainant also does not make any difference, when the signatures on the impugned cheques are admittedly of the appellant/accused Virender Kumar Vs. State & Anr.
CA No. 84/2017 14 of 23 and the investment of the respondent/complainant on profits is also admitted.
23. The main defence taken by the appellant/accused is that the impugned cheques were issued for security purpose and not for any legally enforceable liability as on the date of issuance of the cheques no legally enforceable liability was existing. It is also defence of the appellant/accused that the investment made by the respondent/complainant was subject to market risk and the same is mentioned in the terms and conditions of the mutual agreement entered into between the parties. In the present case, the investment by the respondent/complainant in the business of the appellant/accused is not disputed. It is also not in dispute that the impugned cheques were issued to the respondent/complainant at the time when the respondent/complainant made the investment in the projects of the appellant/accused. It is important to refer to the mutual agreement which was used to be entered into by the appellant/accused with the respondent/complainant. One of such agreement is Ex. DW1/C1. First page of this mutual agreement has the following paragraphs:-
"Whereas the first party is in the business of financial investments into various projects and also invite other persons/public for profitable investments with good returns with their company.
Virender Kumar Vs. State & Anr.
CA No. 84/2017 15 of 23 And whereas the second party is interested for short term investment with the first party and the first party have agreed for the same and now both the parties have agreed on the following terms and conditions......."
The para 5 of the aforesaid mutual agreement reads :
"5. The first party has assured the second party that they will give the assured incentive/profit of 264% to 264% based on the business progress and profit level of the first party/its company. However, minimum net profit of 264% will be given to the second party by the first party."
24. The Ld. Counsel for the appellant/accused have heavily relied on the mutual agreement between the appellant/accused and the respondent/complainant to augment their defence that the investment of the respondent/complainant was subject to market risk, which is mentioned in para 9 of the mutual agreement that the investment scheme/automatic money earning scheme of the first party totally depends upon the business profits of the Amrit Sagar Group and depend on market risk/circumstances. The Ld. Counsel for the appellant/accused has not explained that if the investment was subject to market risk then why minimum net profit of 264% is mentioned to be given to the second party by the first party in para 5 of the mutual agreement.
Virender Kumar Vs. State & Anr.
CA No. 84/2017 16 of 23
25. Be that as it may, the appellant/accused has not made a single averment about the business of Amrit Sagar Group and there is not a single whisper where the investment of the respondent/complainant or the investors was being used by the Amrit Sagar Group and how it was associated with the market risk. It is not the case that the impugned cheques were issued in blank to the respondent/complainant but rather they are post-dated cheques filled with specific amount of profit which the appellant/accused has assured in minimum to the investors. If the investment was subject to market risk and the profit was to be given according to the prevailing market and after proper calculation, then there was no reason to issue cheques with a definite amount and with a definite date.
26. The present complaint is not the single case but there are numerous investors with which the appellant/accused has dealt in the same way, which is so reflected in the FIR No. 77/2009 PS EOW, U/s 406/420/120B IPC and the supplementary charge-sheet (main charge-sheet not produced), which records the brief facts of the FIR that in the month of April 2009, 53 complaints were received regarding cheating and fraud against the accused that he had deceived the investors by inducing them to invest in its various investment schemes alluring and assuring them to pay high returns on their investments and that in order to gain faith of Virender Kumar Vs. State & Anr.
CA No. 84/2017 17 of 23 people and to give legal colour to the duping transaction, the accused issued post-dated cheques of returns along with the principal amount, receipt of investments and a legal agreement with the investors on stamp paper. The modus oprendi of the appellant/accused has remained the same in all the cases.
27. Now without disgressing from the issue in the present case, the answer to the question whether impugned cheques were issued by the appellant/accused towards security is answered in negative. The reasons are quite obvious. The investment by the respondent/complainant in the business project of the appellant/accused wherein the appellant/accused has assured very high returns is admitted. The issuance of the impugned cheques by the appellant/accused to the respondent/complainant is also not in dispute. The mutual agreement between the respondent/complainant and the appellant/accused also provide for the payment of minimal amount of profit of Rs. 264% to the respondent/complainant. The appellant/accused has failed to show that how the investment of the respondent/complainant was subject to the market risk and what was the actual business of the firm Amrit Sagar Group of the appellant/accused. The impugned cheques were not issued as blank but rather they are filled with a proper amount and post dates. The appellant/accused Virender Kumar Vs. State & Anr.
CA No. 84/2017 18 of 23 cannot evade his liability only by saying that the impugned cheques were for security. The impugned cheques were towards the profit/incentive for the investment made by the respondent/complainant and were post-dated cheques and not the security cheques.
28. The arguments by the defence counsel that the date on which the impugned cheques were issued, the appellant/accused does not have legally enforceable liability is misconceived. The issuance of the post-dated cheques at the time of signing of the contract has to be considered against a liability as the amount written in the cheques is payable on the date mentioned in the cheques. The purpose of enacting section 138 NI Act was to enhance the acceptability of the cheques in commercial transaction to infuse trust and reliability on the Negotiable Instruments. The purpose of the Act would stand nugatory if the post-dated cheques are to be treated as cheques without any legally enforceable liability. The existence legally enforceable liability is to be seen on the date mentioned on the cheque and not otherwise.
29. Reliance is placed upon Sunil Todi's case (supra), wherein Hon'ble Apex Court observed as follows:
"26. The object of the NI Act is to enhance the acceptability of cheques and inculcate faith in the efficiency of negotiable instruments for transaction Virender Kumar Vs. State & Anr.
CA No. 84/2017 19 of 23 of business. The purpose of the provision would become otiose if the provision is interpreted to exclude cases where debt is incurred after the drawing of the cheque but before its encashment. In Indus Airways, advance payments were made but since the purchase agreement was cancelled, there was no occasion of incurring any debt. The true purpose of Section 138 would not be fulfilled, if 'debt or other liability' is interpreted to include only a debt that exists as on the date of drawing of the cheque. Moreover, Parliament has used the expression 'debt or other liability'. The expression "or other liability' must have a meaning of its own, the legislature having used two distinct phrases. The expression 'or other liability' has a content which is broader than 'a debt' and cannot be equated with the latter...."
30. The Ld. Counsel for the appellant/accused has also relied upon the judgment of ld. M.M. dated 25.06.2010 in CC No. 2952/1 titled as Ram Sharan Pal Vs. Virender Kumar. It is to be noted that the said judgment was passed by the Ld. M.M. at the very initial stage in the year 2010 on the basis of facts and circumstances of that case and on the limited information available on that file at that time and the leave to appeal was dismissed by the Hon'ble High Court of Delhi without any decision on merits on appeal. The judgment of the Ld. M.M. could not have any reference to the FIR, charge-sheet or other material relevant to the case. The decision of the Ld. M.M. in Ram Sharan's case also cannot be considered being in contrast with the ratio laid down by the Hon'ble Apex Virender Kumar Vs. State & Anr.
CA No. 84/2017 20 of 23 Court in Sunil Todi's case (supra) and judgments of the Hon'ble High Court of Delhi on this subject, which are detailed later in this dicta. This court is of the considered opinion that the said judgment of the Ld. Trial Court is of no help to the appellant/accused in the present case.
31. Ld. Trial Court has rightly relied upon the judgment of the Hon'ble High Court of Delhi in Suresh Chandra Goel Vs. Amit Singhal, Crl. Appeal No. 601/2015 and Credential Leasing and Credits Ltd. Vs. Shruti Investments and Ors., Crl. LP No. 558/2014, wherein it was held that the scope of Section 138 NI Act would cover cases where the ascertained and crystallized debt or other liability exists on the date when the cheque is presented and not only to cases where the debt or other liability exists on the date, on which it was delivered to the seller as a post-dated cheque or as a current cheque with credit period.
32. In Credential Leasing and Credits Limited Vs. Shruti Investments and Anr, the Hon'ble High Court of Delhi has observed thus:-
"27. Thus, the "debt or other liability" has to be a legally enforceable debt or other liability. Neither the main provision of Section 138, nor the explanation suggest that the debt or other liability should be in existence on the date of issuance of the cheque, i.e. on the date of its delivery to the Virender Kumar Vs. State & Anr.
CA No. 84/2017 21 of 23 drawee or someone on his behalf or, on the date that the cheque bears. The only reference to time in the Section, is the point of time when the cheque is returned unpaid by the drawer's bank.
28. In my view, therefore, the scope of Section 138 NI Act, would cover cases where the ascertained and crystallised debt or other liability exists on the date that the cheque is presented, and not only to case where the debt or other liability exists on the date on which it was delivered to the seller as a post-dated cheque, or as a current cheque with credit period. The liability, though, should be in relation to the transaction in respect whereof the cheque is given, and cannot relate to some other independent liability. If, on the date that the cheque is presented, the ascertained and crystallised debt or other liability relatable to the dishonoured cheque exists, the dishonor of the cheque would invite action under Section 138 NI Act...."
33. This court finds the impugned judgment dated 13.02.2017 and order of sentence dated 21.02.2017 of the Ld. Trial Court to be free from any illegality, infirmity or perversity. They are detailed, well reasoned and legally sound decisions. Therefore, the appeal filed by the appellant/accused is hereby dismissed and impugned judgment and order on sentence dated 13.02.2017 and 21.02.2017 passed by the ld. Trial Court are accordingly upheld.
34. Trial Court Record be sent back to the ld. Trial Court alongwith a copy of this judgment to execute the order of sentence passed by the ld. Trial Court.
Virender Kumar Vs. State & Anr.
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35. The appellant/accused is already in custody and he be produced before the Ld. Trial Court on 10.03.2022.
36. A copy of this judgment be also supplied to both the parties.
37. Appeal file be consigned to Record Room. Pronounced in open Court 07th day of March, 2022 (SUSHIL ANUJ TYAGI) Additional Sessions Judge, Fast Track Special Court (RC) South West District:
Dwarka Courts: New Delhi.
Virender Kumar Vs. State & Anr.
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