Delhi District Court
Gajendra Kaushik vs M/S Pneumax Pneumatic India Pvt Ltd on 7 August, 2024
DLSE010057392023
IN THE COURT OF SH. LOVLEEN, ADDITIONAL SESSIONS
JUDGE-03, SAKET COURTS, NEW DELHI
CRL. APPEAL No. 170/2023
GAJENDRA KAUSHIK
PROPRIETOR OF M/S EXPERT PNEUMATIC,
REGD. OFFICE D-11, LAKHANI CHOWK,
SANJAY COLONY, NEAR AWADHESH SARAI
SECTOR-23, FARIDABAD, HARYANA -121005.
....Appellant
versus
M/S PNEUMAX PNEUMATIC INDIA PVT LTD.,
THROUGH ITS AUTHORIZED REPRESENTATIVE,
D-82, HOSIERY COMPLEX, PHASE-II EXTN.,
NOIDA, U.P.- 201305. ...Respondent
Date of institution : 26.05.2023
Date of Reserving judgment : 11.07.2024
Date of Pronouncement : 07.08.2024
JUDGMENT
1. This is an appeal under section 374 Cr.PC preferred by the appellant LOVLEEN against the impugned judgment dated 24.04.2023 and order on sentence Digitally signed by LOVLEEN Date: 2024.08.07 14:36:59 +0530 Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 1/34 dated 25.04.2023 passed by Court of Ld. Metropolitan Magistrate- (NI Act), Digital Court-02, South East District in CC No. 2592/2021 titled M/s Pneumax Pneumatics India Pvt Ltd Vs. Gajender Kaushik, whereby the appellant/ convict Gajender Kaushik was convicted of the offence punishable under Section 138 of Negotiable Instruments Act and was ordered to pay fine of Rs. 14 lakhs within one month from the date of order, which is payable to the complainant/ respondent as compensation u/s 357 Cr.P.C. and in default, the appellant/ convict is to undergo simple imprisonment for a period of 06 months. For the sake of convenience, the appellant herein shall be referred to as 'accused' and the respondent herein shall be referred to as 'complainant'.
BRIEF FACTS
2. The brief facts of the case are correctly noted by the Ld. Trial Court in the following fashion:
2. Factual Matrix: The complainant's case is that the the complainant is a registered company dealing in the business of Pneumatic components and the accused being the proprietor of M/s Expert Pneumatic was handling it's day to day business affairs. It is stated that the accused had approached the complainant for purchase of various goods on credit and had also made some payments and thus, opened a mutual open current account and as per the statement of account maintained Digitally signed by LOVLEEN by the complainant an amount of Rs. 10,36,381/- was due LOVLEEN Date:
2024.08.07 14:37:17 +0530 upon the accused, towards the complainant for the goods supplied. It is further stated that in partial discharge of the said liability, the accused had issued the cheques bearing No. Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 2/34 913365 dated 23.11.2020 for a sum of Rs. 2,41,837/-, cheque bearing No. 913366 dated 07.12.2020, for a sum of Rs. 2,33,128/-, cheque bearing No. 913367 dated 14.12.2020, for a sum of Rs. 2,43,900/-, cheque bearing No. 913369 dated 28.12.2020 for a sum of Rs. 2,17,516/- all drawn on United bank of India, Sector 55 Faridabad Branch (hereinafter referred to as the "cheques in question"). However, the said cheques upon presentation were dishonoured for the reason "Funds Insufficient" vide return memos dated 13.01.2021. Thereafter, the complainant sent a legal demand notice dated 21.01.2021 U/S 138 of the N.I. Act at the last known address of the accused asking him to make the payment of cheque amount, which was duly served upon the accused on 27.01.2021, however, the accused failed to make the payment despite delivery of the legal demand notice. Hence, being aggrieved, the complainant has filed the present complaint under section 138 of The Negotiable Instruments Act.
TRIAL
3. Vide order dated 28.09.2021, the Ld. Metropolitan Magistrate summoned the accused to face trial u/s 138 NI Act. On 05.05.2022, a notice u/s 251 Cr.P.C. was framed upon the accused to which he pleaded LOVLEEN not guilty and claimed trial. He stated that he had given the cheques in Digitally signed by LOVLEEN question to the complainant 4 years ago as security as he was the Date: 2024.08.07 14:37:27 +0530 distributor of the complainant and the same have been misused by the complainant. He further stated that he had no liability towards the complainant. However, he admitted his signatures on the cheques in Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 3/34 question.
4. During trial, the complainant examined Sh. C. M. Singh Rawat, AR of complainant company as CW1, who deposed in line with the case set up against the accused. Statement of accused was recorded u/s 313 Cr.P.C, wherein he stated that "he had issued blank cheques as security, being the authorized distributor of complainant and not towards discharge of any liability and that he had outstanding liability of approximately Rs. 8 lakhs from the complainant and he had received some defective goods from the complainant so he told them to take back the defective goods and receive the payment after settling the account. He had also communicated this fact to the MD of the complainant company through e-mail. However, they did not respond to his e-mail and presented his cheques". The accused Gajendra examined himself in defence as DW-1 and reiterated the above defence. Upon the conclusion of trial, accused was convicted for the commission of offence punishable u/s 138 NI Act vide the impugned judgment dated 24.04.2023.
GROUNDS OF APPEAL
5. The grounds cited by the accused against the impugned judgement are as under :
LOVLEEN A) BECAUSE the impugned order of Conviction and Digitally signed by LOVLEEN sentence by the learned trial court dated 24.04.2023 and Date: 2024.08.07 14:37:33 +0530 25.04.2023 is bad in law and against the facts and circumstances of the present case.
B) BECAUSE the learned trial court gravely erred in ignoring important question of law that a litigant who conceals the material particulars from the Court has no right to be Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 4/34 heard. The Respondent/Complainant Company is maintaining its Books of Accounts in Electronic form in the Computer and hence is not required to produce the original books of accounts to prove the liability of the Appellant/Accused as well as the alleged issuance of the impugned cheques by the Appellant/Accused in discharge of its liability if the statement of account submitted is supported by a Certificate in accordance with section 65B of the Evidence to the correctness of the statement of account submitted by the Respondent/Complainant Company and if the copy of statement of account submitted by the Respondent/Complainant Company together with the Certificate by way of Affidavit as provided under section 65-B of the Evidence Act to show the liability by the Appellant/Accused is held to be false the entire complaint is not maintainable.
C) BECAUSE the Respondent/Complainant Company with its complaint submitted the statement of account Ex.CW1/4 and also a certificate in terms of Section 65B of the Evidence Act by way of an Affidavit Ex.CW 1/3. The present Complaint by the Respondent Company against the Appellant/Accused was filed on 24.02.2021 but surprisingly the statement of Account Ex.CW 1/4 is only for the period 16.04.2020 to 11.11.2020 when the transaction between the Respondent Company with the Appellant/Accused continued upto 24.12.2020. Even the impugned cheques alleged to have been issued by the Appellant/Accused are dated 23.11.2020, 07.12.2020, 14.12.2020 and 28.12.2020 are not reflected in the Digitally statement of Account Ex.CW-1/4 submitted by the signed by LOVLEEN LOVLEEN Date:
Respondent/Complainant. As per statement of account of the 2024.08.07 14:37:40 Appellant Ex.DW-1/2 the Appellant Accused made a payment +0530 of Rs.1,00,000/- to the Respondent/Complainant Company on 26.11.2020 and also made purchases on 10.12.2020 and Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 5/34 24.12.2020. The learned trial court failed to notice the concealment of material facts that the statement of account Ex.CW-1/4 has been fabricated by editing the same whereby the transactions between the Appellant/Accused and the Respondent/Complainant Company have not been reflected by the Respondent/Complainant Company have not been reflected in the statement of Account Ex.CW-1/4 consequently the certificate by the Respondent/Complainant Company under section 65-B of the Evidence Act by way of Affidavit Ex.CW-
1/3 is false and hence the complaint by the Respondent/Complainant Company was liable to be dismissed only on this ground alone. The Hon'ble Delhi High Court in the case of M/s Gokaldas Paper Products Vs. M/s Lilliput Kidswear Ltd. & Anr. 2023 LiveLaw (Del) 314 "In the opinion of the Court, reply to the contempt petition, supported by Respondent No.2's affidavit, which denies the liability to pay Petitioner's dues is plainly false in view of unambiguous and categorical admission made to the contrary, in the Affidavit of February, 2013. The explanation or the change in stand premised on the Respondents being burdened by multiple pending litigations downsizing/lack of staff and lack of knowledge, is not convincing. In the opinion of the Court, the revised stand in the reply appears to be willful false statement. In the Affidavit of February, 2013, Respondent No.2 verified that he was well-versed with the facts and circumstances of the case and that he is competent to swear the affidavit. He further verified that the statement made therein were true and correct to the best of his knowledge. The legal system relies heavily on the honesty and integrity of individuals who appear before courts. When makes a statement before the Court or signs an LOVLEEN affidavit, they are making a solemn declaration to tell the truth, Digitally signed the whole truth and nothing but truth. Filing of a false affidavit by LOVLEEN Date: 2024.08.07 14:37:47 +0530 is a serious offence that undermines the very foundation of legal system. The subsequent reply and accompanying Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 6/34 affidavit prima facie contain false statements in the course of judicial proceedings, which is punishable under section 193, 199 and 200 of the Indian Penal Code, 1860".
D) BECAUSE the learned trial court has gravely erred and failed to correctly appreciate the testimony by the AR of the Respondent Company. The AR of the Respondent Company during his cross examination by the Counsel of the Appellant admitted the alleged transaction between the Appellant Company but failed to state as to why these transaction are not reflected in the statement of account of the Respondent Company when the AR categorically admitted that he is also maintaining the Books of Accounts of the Respondent Company. The AR of the Respondent Company also failed to explain as to why the transaction between the Respondent Company and Appellant after 11.11.2020 were not reflected in the statement of account Ex.CW.1/4 in view of categorical admission by the AR of the Respondent Company of having transaction between the Respondent Company and Appellant upto December, 2020.
E) BECAUSE the learned trial court failed to appreciate the correct facts of the case. Learned trial court failed to note that the Respondent had been making purchases from the Respondent Company since 2017 on credit basis and the Respondent Company had been maintaining in its books of account a running account of the Appellant and the Appellant had been regularly making part payments from time to time for the goods purchased from the Respondent Company and there Digitally signed by LOVLEEN had not been any occasion in the past that any cheque issued LOVLEEN Date:
2024.08.07 by the Appellant Company was ever dishonored on account of 14:37:56 +0530 insufficient funds. Further the Appellant had been making most of the payments by way of RTGS or NEFT. Even during the period April, 2020 to December the Appellant had made all Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 7/34 the payments by way of RTGS/NEFT and there was neither any occasion or reason for the Appellant to issue the impugned cheques.
F) BECAUSE the learned trial has failed to appreciate the testimony of the Appellant/Accused. The Appellant/Accused submitted the Counterfoils of the Cheque Book Ex.DW 1/1(Colly) in support of the Appellant/accused having issued 6 blank signed cheques in the year 2017 and this testimony of the Appellant was not rebutted by the Respondent Company which clearly proves that the impugned cheques were never issued by the Appellant/Accused in the year 2020 in discharge of any of its liabilities as alleged by the Respondent Company in its Complaint. The learned trial court also failed to appreciate that the impugned cheques are not reflected in the statement of account Ex.CW 1/4 submitted by the Respondent with its Complaint.
G) BECAUSE the learned trial court also gravely in not appreciating the fact that the impugned complaint by the Respondent Company only after the Appellant/Accused sent an E mail Ex. DW 1/1 (Colly) to the Respondent to have a meeting with the Managing Director to discuss the supply of inferior material by the Respondent Company and complaints of supply of inferior material made earlier were not being redressed and it is only after the E mail by the Appellant to the Respondent Company. There was no other reason to file the present complaint by misusing the blank signed cheques obtained by the Respondent Company in the year 2017 LOVLEEN particularly when the transaction between the Appellant and Digitally signed by Respondent were continuing and also that the Appellant was LOVLEEN Date: 2024.08.07 making part payments from time to time and that too by RTGS 14:38:03 +0530 or NEFT.
Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 8/34 H) BECAUSE the learned trial court gravely in not appreciating the judgment by the Hon'ble Supreme Court in the case of M/s TRL Krosaki Refractories Vs M/s SMS Asia Pvt Ltd. & Anr relied upon by the Appellant to show that the AR of the Respondent/Complainant Company who filed the present complaint was competent to file the present complaint but was not competent to testify/give evidence as he was not well conversant with the facts of the present case which is clear from the cross examination of CW 1, AR of the Respondent Company. Learned trial court has not correctly appreciated the judgment. In the above judgment by the Hon'ble Supreme Court the Application was filed challenging the authorization of the AR and his competence to testify in the Court. The application even before the AR was Examined.
The Hon'ble Supreme Court held: "All that is necessary is to demonstrate before the learned Magistrate that the complaint filed in the name of the "payee" and if the person who is prosecuting the complaint is different from the payee, the authorization therefor and that the contents of the 1 complaint are within his, knowledge. When the complainant/payee is a company, an authorized employee can represent the company Such averment and prima facie material sufficient for the learned Magistrate to take cognizance and issue process. If at all, there is any serious dispute with regard to the person prosecuting the complaint not being authorized or if it is to be demonstrated that the person who filed the complaint has no knowledge of the transaction and, as such person could not have instituted and prosecuted the complaint, it would be open for the accused to dispute the position and establish the same LOVLEEN during the course of trial."
Digitally signed by LOVLEENDate: 2024.08.07 The Appellant during the course of cross examination of CW-1 14:38:09 +0530 AR that the AR had no knowledge of the facts of the case whatsoever and, therefore, he was not competent to testify and Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 9/34 give evidence. The learned trial has not correctly appreciated the above judgment by the Hon'ble Supreme Court. Though AR cold file the complaint and the learned trial court took cognizance of alleged offence u/s 138 NI Act on the basis of documents submitted with the complaint but erroneously held the AR to be competent to testify/give evidence without AR having knowledge of the facts of the case. The Jearned trial court has not correctly appreciated Para 17(middle lines on page 12 of the judgment) of the above judgment.
I) BECAUSE the learned trial court has gravely erred in ignoring the judgment by the Hon'ble Delhi High Court in the case of M/s Total Finaelf India Limited Vs. Smt. Rashmi Parnami MANU/DE/1491/2013. The facts in the above judgment by the Hon'ble High Court are almost identical of the present case. In present case the allegations by the Respondent Company is that the Appellant/Accused issued the Impugned four cheques in discharge of its liability but the learned trial court failed to appreciate that throughout the year the Appellant had been making part payments in round figures of Rs.1,00,000/-, Rs.1,50,000/- etc. The Appellant never neither used to pay as per the amount of particular invoice nor ever made any payment in odd amount whereas the impugned cheques are all in odd figures 2,41,837/-; 2,33,128/-, 2,43,900/- and 2,17,516/-(Total four cheques in a sum of Rs.9,36,381/-). The learned trial Court also failed to appreciate the fact that if the Appellant/Accused intended to issue the cheque in discharge of its liability there was no reason to issue four cheques with a gap of one or two weeks and the Appellant could have issued only one cheque to discharge the entire LOVLEEN liability. The trial court has further gravely erred in not observing the conduct of the Appellant/Accused that Digitally signed by LOVLEEN throughout the entire transactions between the parties the Date: 2024.08.07 14:38:15 +0530 Appellant/Accused had been making payments only through Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 10/34 RTGS/NEFT which always made only when there is sufficient balance in the account of drawer. The Appellant/Accused had not been making payments to the Respondent/Complainant through Account payee cheque. The learned trial court has failed to even consider this judgment relied upon by the Appellant/Accused.
J) BECAUSE the learned trial court has also failed to even consider the judgments relied upon by the Hon'ble Supreme Court in the case of Rangappa Vs. Mohan, MANU/SC/0376/2010 and Basalingappa Vs. Mudisappa, (2019) 5 SCC 418. In the above two judgments the Hon'ble Supreme Court regarding the Presumption against the Accused in the cases under section 138 N.I.Act. The Hon'ble Supreme Court has held: "To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist". The Hon'ble Supreme further held that it is a settled position that when an accused has to rebut the presumption under section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail.
K) BECAUSE the learned trial court has gravely erred in LOVLEEN not correctly appreciating the following defense raised:
i) The Appellant/Accused has been able to
Digitally signed
by LOVLEEN demonstrate before this Hon'ble Court that the impugned
blank signed Cheques were given to the
Date: 2024.08.07
14:38:21 +0530
Respondent/Complainant Company in the year 2017 and were never issued by the Appellant Company in 2020 as Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 11/34 alleged by the Respondent/Complainant Company. Further the details in the impugned cheques were not filled in by the Appellant and were filled in by the Respondent Company. The Respondent Company has failed to rebut these facts and the Respondent/Complainant Company has failed to show that the alleged impugned cheques were drawn and issued by the Appellant/Accused in the Year 2020 as the AR of the Respondent/Complainant Company admitted in his cross examination that he did not know as to when the impugned cheques were issued by the Appellant/Accused and he received from the dispatch branch all the impugned cheques which were duly filled in. AR also admitted that he do not know as to who filled in the particulars in these cheques.
ii) The Appellant/Accused has also been able to demonstrate before the learned trial court that the Respondent/Complainant Company filed the present Complaint by concealment of facts deliberately and intentionally the statement of account for part of the period without reflecting therein the complete transactions between the Appellant/Accused and the Respondent/Complainant Company and accordingly the Affidavit by the Respondent/Complainant certifying the correctness of the statement of account Ex.CW 1/4 is false.
iii) The Appellant/Accused has been able to demonstrate the the AR of the Respondent/Complainant LOVLEEN Company was competent to file the Complaint was not competent to give evidence as he was not in the Digitally signed by LOVLEEN knowledge of the facts of the present case in view of the Date: 2024.08.07 14:38:26 +0530 judgment by the Hon'ble Supreme Court in the case of Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 12/34 M/s TRL Krosaki Refractories Ltd. referred to above.
6. It is prayed that the impugned judgment dated 24.04.2023 and the order on sentence dated 25.04.2023 may be set aside.
7. On the other hand, Ld. Counsel for the complainant has argued that the accused has been correctly convicted by Ld. Metropolitan Magistrate and an appropriate sentence has been imposed upon him. He prays for dismissal of the appeal.
DISCUSSION
8. This Court has considered the oral submissions as well as the records.
9. Recently, the Hon'ble Supreme Court was pleased to define the contours of the law relating to the provision u/s 138 of Negotiable Instruments Act in Rajesh Jain Vs. Ajay Singh 2023 INSC 888. The relevant extracts of the observations are reproduced below for ready reference:-
Section 138 of the NI Act - Necessary Ingredients
25. Essentially, in all trials concerning dishonour of cheque, the courts are called upon to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act.
LOVLEEN
26. In Gimpex Private Limited vs. Manoj Goel Digitally signed by LOVLEEN Date: 2024.08.07 (2022) 11 SCC 705 , this Court has unpacked the 14:38:32 +0530 ingredients forming the basis of the offence under Section Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 13/34 138 of the NI Act in the following structure:
(1) The drawing of a cheque by person on do account maintained by him with the banker for the payment of any amount of money to another from that account;
(i) The cheque being drawn for the discharge in whole or in part of any debt or other liability;
(iii) Presentation of the cheque to the bank arranged to be paid from that account,
(iv) The return of the cheque by the drawee bank as unpaid either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount
(v) A notice by the payee or the holder in due course making a demand for the payment of the amount to the drawer of the cheque within 30 days of the receipt of information from the bank in regard to the return of the cheque; and
(vi) The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days of the receipt of the notice.
LOVLEEN 27. In K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7 Digitally signed SCC 510 this Court had summarised the constituent by LOVLEEN Date: 2024.08.07 14:38:38 +0530 elements of the offence in fairly similar terms by holding:
"14. The offence Under Section 138 of the Act can be completed only with the concatenation of a Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 14/34 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 the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (3) failure of the drawer to make payment within 15 days of the receipt of the notice."
28. The five (5) acts as set out in K Bhaskaran's case (supra) are, generally speaking, matters of record and would be available in the form of documentary evidence as early as, at the stage of filing the complaint and initiating prosecution. Apart from the above acts, it is also to be proved that cheque was issued in discharge of a debt or liability (Ingredient no. (ii) in Gimpex's case). The burden of proving this fact, like the other facts, would have ordinarily fallen upon the complainant. However, through the introduction of a presumptive device in Section 139 of the NI Act, the Parliament has sought to overcome the general norm as stated in Section 102 of the Evidence Act and has, thereby fixed the onus of proving the same on the accused. Section 139, in that sense, is an example of a reverse onus clause and requires the accused to prove the non-existence of the presumed fact, i.e., that cheque was Digitally signed by not issued in discharge of a debt/liability.
LOVLEEN LOVLEEN Date:
2024.08.07 Burden of Proof and Presumptions: Conceptual 14:38:44 +0530 Underpinnings
29. There are two senses in which the phrase 'burden Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 15/34 of proof' is used in the Indian Evidence Act, 1872 (Evidence Act, hereinafter). One is the burden of proof arising as a matter of pleading and the other is the one which deals with the question as to who has first to prove a particular fact. The former is called the 'legal burden' and it never shifts, the latter is called the 'evidential burden' and it shifts from one side to the other. [See Kundanlal v. Custodian Evacuee Property (AIR 1961 SC 1316)]
30. The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party's case. If, at the conclusion of the trial a party has failed to establish these to the appropriate standards, he would lose to stand. The incidence of the burden is usually clear from the pleadings and usually, it is incumbent on the plaintiff or complainant to prove what he pleaded or contends. On the other hand, the evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; the burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be is adduced by either side (See Halsbury's Laws of England, 4th Edition para 13). While the former, the legal burden arising on the pleadings Digitally signed by LOVLEEN is mentioned in Section 101 of the Evidence Act, the latter, LOVLEEN Date:
2024.08.07 14:38:51 the evidential burden, is referred to in Section 102 thereof. +0530 [G.Vasu V. Syed Yaseen (AIR 1987 AP139) affirmed in Bharat Barrel Vs. Amin Chand [(1999) 3 SCC 35] ] Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 16/34
31. Presumption, on the other hand, literally means "taking as true without examination or proof". In Kumar Exports v. Sharma Exports (2009) 2 SCC 513, this Court referred to presumption as "devices by use of which courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence."
32. Broadly speaking, presumptions are of two kinds, presumptions of fact and of law. Presumptions of fact are inferences logically drawn from one fact as to the existence of other facts. Presumptions of fact are rebuttable by evidence to the contrary. Presumptions of law may be either irrebuttable (conclusive presumptions), so that no evidence to the contrary may be given or rebuttable. A rebuttable presumption of law is a legal rule to be applied by the Court in the absence of conflicting evidence (Halsbury, 4th Edition paras 111, 112]. Among the class of rebuttable presumptions, a further distinction can be made between discretionary presumptions ('may presume') and compulsive or compulsory presumptions ('shall presume'). [G. Vasu V. Syed Yaseen (Supra)]
33. The Evidence Act provides for presumptions, which fit within one of three forms: 'may presume' (rebuttable presumptions of fact), 'shall presume' (rebuttable LOVLEEN presumption of law) and conclusive presumptions Digitally signed by LOVLEEN (irrebuttable presumption of law). The distinction between Date: 2024.08.07 14:38:57 +0530 'may presume' and 'shall presume' clauses is that, as regards the former, the Court has an option to raise the presumption Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 17/34 or not, but in the latter case, the Court must necessarily raise the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved, [G.Vasu V. Syed Yaseen (Supra)] Section 139 NI Act-Effect of Presumption and Shifting of Onus of Proof
34. 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.
35. 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 Digitally signed by to raise this presumption in every case where the factual LOVLEEN LOVLEEN Date:
2024.08.07 basis for the raising of the presumption had been 14:39:02 +0530 established. But this does not preclude the person against whom the presumption is drawn from rebutting it and Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 18/34 proving the contrary as is clear from the use of the phrase 'unless the contrary is proved'.
36. The Court will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel Vs. Amin Chand] [(1999) 3 SCC 35]
37. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that 'a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar (2019) 4 SCC 197]. Therefore, mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption.
38. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under LOVLEEN Section 139 of the Act helps shifting the burden on the Digitally signed accused. The effect of the presumption, in that sense, is to by LOVLEEN Date: transfer the evidential burden on the accused of proving that 2024.08.07 14:39:08 +0530 the cheque was not received by the Bank towards the Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 19/34 discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.
39. John Henry Wigmore12 on Evidence states as follows:
"The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption 'disappears as a rule of law and the case is in the Jury's hands free from any rule."
40. The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non- existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of 'preponderance of probabilities', similar to a defendant in a civil proceeding. [Rangappa vs. Mohan (AIR 2010 SC 1898)]
41. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words 'until the contrary is proved' occurring in Section 139 do not mean that Digitally signed by accused must necessarily prove the negative that the LOVLEEN LOVLEEN Date:
2024.08.07 instrument is not issued in discharge of any debt/liability 14:39:18 +0530 but the accused has the option to ask the Court to consider Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 20/34 the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513]25
42. In other words, the accused is left with two options. The first option-of proving that the debt/liability does not exist- is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non- existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused's case may be even fifty one to forty nine and arising out of the entire circumstances of the case, which includes: the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his 313 statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a LOVLEEN preponderance of probabilities justifying a finding that Digitally signed there was 'no debt/liability'. [Kumar Exports and Sharma by LOVLEEN Date:
2024.08.07 14:39:24 +0530 Carpets, (2009) 2 SCC 513]
43. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 21/34 i.e., oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact.
44. The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. In Kundanlal's case- (supra) when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non- existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Section 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well.
45. Therefore, in fine, it can be said that once the accused Digitally signed by LOVLEEN adduces evidence to the satisfaction of the Court that on a LOVLEEN Date:
2024.08.07 14:39:30 +0530 preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 22/34 complainant and the presumption 'disappears' and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa vs. Mudibasappa, AIR 2019 SC 1983; See also, Rangappa vs. Sri Mohan (2010) 11 SCC 441].
Existence of Statutory Presumptions
10. Trial court record reflects that at the time of framing of notice u/s 251 Cr.P.C the accused admitted that all the cheques in question belong to him and also bear his signatures. The accused also admits the handing over of the cheques in question to the complainant albeit for a different purpose then what is claimed by the complainant. Admittedly, the cheques in question were dishonored upon being presented for encashment by the complainant. A legal notice was then sent by the complainant to the accused demanding the amount due under the cheques in question. Service of the said legal notice was denied by the accused at the time of framing of notice u/s 251 CrPC. However, during the course of his cross-examination as DW1, the accused has admitted the receipt of said legal notice.
Admittedly, the accused did not make any payment demanded vide the said LOVLEEN legal notice within the period prescribed u/s 138 of NI Act. All the above Digitally signed by LOVLEEN Date: facts are sufficient to invoke the presumptions available to the complainant 2024.08.07 14:39:37 +0530 Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 23/34 u/s 118 NI Act and u/s 139 NI Act. As such, the evidential burden stood transferred upon the accused to prove that the cheques in question were not issued towards discharge of any liability. Until the said evidential burden is discharged by the accused, the presumptions available against the accused u/s 118 NI Act and u/s 139 NI Act will have to be assumed to be true, without expecting the complainant to do anything further. The said burden could be discharged by the accused either by leading defence evidence to conclusively establish that the cheques were not issued in discharge of a debt / liability or by proving the non existence of debt / liability on preponderance of probabilities by referring to the particular circumstances of the case. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence. Once the accused produces such evidence, the burden shifts back to the complainant and the above mentioned presumptions disappear.
Rebuttal of Statutory Presumptions
11. Now, the question left to be decided is whether the said presumptions have been successfully rebutted by the accused or not. In order to adjudicate the same, this Court must deal with the facts adduced on record by the accused during the cross-examination of complainant or during the defence evidence.
12. The said adjudication requires an understanding of the respective stands taken by the parties. As per complainant, the cheques in question LOVLEEN were issued by the accused in favour of the complainant in order to Digitally signed by LOVLEEN discharge his liability towards the goods purchased by him (from the Date: 2024.08.07 14:39:44 +0530 complainant). On the other hand, the accused denies any such liability and claims, in response to notice framed upon him u/s 251 Cr.P.C, that the Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 24/34 cheques in question were handed over 4 years ago as 'security'. In his statement recorded u/s 313 Cr.PC, the accused states that "he had issued blank cheques as security, being the authorized distributor of complainant and not towards discharge of any liability and that he had outstanding liability of approximately Rs. 8 lakhs from the complainant and he had received some defective goods from the complainant so he told them to take back the defective goods and receive the payment after settling the account. He had also communicated this fact to the MD of the complainant company through e-mail. However, they did not respond to his e-mail and presented his cheques". In his defence, accused examined himself as DW-1 and reiterated his above defence.
13. Now we delve into the testimony of complainant, who examined himself as CW-1. CW-1 deposed in line with the facts mentioned in the afore-going paragraphs. He was cross-examined at length on behalf of the accused. However, he did not betray any signs of falsity or untruth, nor any inconsistency has been noticed in his oral testimony. It must be noted here that the accused has not bothered to challenge the knowledge of CW-1 regarding the facts of the case or his authorization to file the complaint at any point of time during his cross-examination. As such, he could not be permitted to raise the issue of 'authorization' in the present proceedings. Even otherwise, the issue of 'authorization' has been dealt with at length by the Ld. Magistrate on the basis of factual position of the LOVLEEN case and various judgments pronounced by the superior Courts in the impugned judgment dated 24.04.2023 in the following manner:-
Digitally signed by LOVLEEN Date: 2024.08.07"14. Accused has also tried to dispute his liability by claiming 14:40:11 +0530 that the AR of the complainant company did not have authority to file this case as he is not aware of the facts of the case. In Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 25/34 support of his submissions, Ld. Counsel for accused has relied upon judgment of Hon'ble Supreme Court in case titled as M/S TRL Krosaki Refractories Ltd. v M/S SMS Asia Pvt. Ltd. and Anr. (arising out of SLP (Crl.) No. 3113 of 2018 decided on 22.02.2022. In this judgment, it has been held by Hon'ble Apex Court that:
"...17. In that view, the position that would emerge is that when a company is the payee of the cheque based on which a complaint is filed under Section 138 of N.I. Act, the complainant necessarily should be the Company which would be represented by an employee who is authorized. Primafacie, in such a situation the indication in the complaint and the sworn statement (either orally or by affidavit) to the effect that the complainant (Company) is represented by an authorized person who has knowledge, would be sufficient. The employment of the terms "specific assertion as to the knowledge of the power of attorney holder" and such assertion about knowledge should be "said explicitly" as stated in A.C. Narayanan (supra) cannot be understood to mean that the assertion should be in any particular manner, much less only in the manner understood by the Digitally signed by LOVLEEN accused in the case. All that is necessary is to LOVLEEN Date:
2024.08.07 14:40:18 +0530 demonstrate before the learned Magistrate that the complaint filed is in the name of the "payee" and if the person who is prosecuting the complaint is Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 26/34 different from the payee, the authorisation therefor and that the contents of the complaint are within his knowledge. When, the complainant/payee is a company, an authorized employee can represent the company. Such averment and prima facie material is sufficient for the learned Magistrate to take cognizance and issue process. If at all, there is any serious dispute with regard to the person prosecuting the complaint not being authorized or if it is to be demonstrated that the person who filed the complaint has no knowledge of the transaction and, as such that person could not have instituted and prosecuted the complaint, it would be open for the accused to dispute the position and establish the same during the course of the trial. As noted in Samrat Shipping Co. Pvt. Ltd. (supra), dismissal of a complaint at the threshold by the Magistrate on the question of authorisation, would not be justified. Similarly, we are of the view that in such circumstances entertaining a petition under Section 482 to quash the order taking cognizance by the Magistrate would be unjustified when the issue of proper authorisation and knowledge can only be an issue for trial....".
LOVLEEN
15. In view of the case law cited above, it becomes clear that Digitally signed by LOVLEEN the complaint on behalf of a company can be filed by it's duly Date: 2024.08.07 14:40:39 +0530 authorized representative, who has knowledge about the facts of the case. In the present case, CW-1 namely MR. C.M Singh Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 27/34 Rawat has been authorized to file this complaint by Board or Resolution of the complainant company dated 01.02.2021 i.e. EX.CW1/1 and throughout the trial, the accused has not objected to the validity of board of resolution or the authority of CW- 1, to file this complaint. For the first time during final arguments, accused has tried to challenge capacity of CW-1 to file this complaint stating that CW-1 is not aware about the fact of the case, however, I do not find any merits in this argument advanced on behalf of accused, as CW-1 during his cross- examination has stated that he was working with the complainant company since the year 2017 in the accounts branch of the complainant company and he has even prepared the statement of account EX.CW1/3. CW-1 has also confirmed that the goods were sold by the complainant company to accused even in December 2020, and he has even confirmed that the accused has made payment of Rs.1 Lac to the complainant company on 26.12.2020, which is not reflected in statement of account EX.CW1/3. All these facts clearly shows that CW-1 had knowledge about the facts and transaction of the present complaint and he has been duly authorized by the complainant company to prosecute this complaint.
16. As per section 142 of NI Act, a complaint U/S 138 NI Act on behalf of a company/payee or holder in due course, has to be LOVLEEN made by its Manager/ Authorised person. In the present case, Digitally signed by LOVLEEN the complainant company has authorized CW-1 Mr. C M Singh Date: 2024.08.07 14:40:46 +0530 Rawat, to prosecute this complaint vide it's Board of Resolution EX. CW1/1. Further, in the present case admittedly the accused Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 28/34 has received goods from the complainant company and even handed over the cheques in question to the complainant company, thus, it is established that the complainant company is the payee/holder in due course. Thus, it cannot be said that present complaint has not been filed by the complainant company by it's duly authorized representative. On this point, I draw reference from the judgment of Hon'ble Supreme court in Shankar Finance Investments v State of Andhrapradesh and Ors. (2008) 24 CLA-BL Supp 62 (SC), wherein the Hon'ble Supreme Court observed that:
"...the requirement of Section 142 of the NI Act are that the complaint should be in writing and the complainant should be made by the payee and holder in due course...once the complaint is in the name of the payee and is in writing, the requirement of Section 142 are fulfilled..."
17. On this point, reference can also be drawn from Eita India Pvt. Ltd. v NCT of Delhi (2003) 114 Comp Cas.32(Del.) wherein it was held that-
"... the conspectus of judicial opinion establishes a principle that complaint in respect of the offence punishable U/S 138 of the Act need not be personally filed by the payer or holder in due course. It can be filed by a natural person to act as defacto complainant..."
LOVLEEN Digitally signed by LOVLEEN
18. Thus, as per Section 142 of the NI Act, a manager or any Date: 2024.08.07 14:40:57 +0530 other person authorized by the complaint can represent it during Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 29/34 the course of legal proceedings before the court and file a complaint. Since, in the present case the complaint has been filed by the Authorised Representative of the complainant company regarding the cheques in question which were issued for payment of material supplied by the complainant company to the accused, thus, it cannot be said that Mr. C.M. Singh Rawat is not authorized to pursue this complaint on behalf of complainant company.
13.1. This Court does not find any reason to differ with the said opinion of Ld. Magistrate on the issue as the same is supported by judicial pronouncements cited in the impugned judgment. 13.2 The next claim of the accused is that the cheques in question were handed over as a 'security' to the complainant and the same have been misused. It may be noted here that CW-1 denied all the suggestions given by the accused to the effect that the cheques in question were security cheques. Moreover, accused has not bothered to place any documentary material in order to support his said claim. As such, it could be safely held that the said claim of the accused remains unsubstantiated. Even if the cheques in question were handed over as a security, as is claimed by accused, still the same is insufficient to absolve him. Reason being the fact that the complainant was impliedly authorized to utilize the same to the extent of the outstanding liability of the accused. Regarding the outstanding liability of the accused, CW1 has categorically deposed that a LOVLEEN sum of Rs. 10,36,381/- was due and payable by the accused as on December 2020. Although during the cross-examination of CW-1 the Digitally signed by LOVLEEN Date: 2024.08.07 14:41:04 +0530 accused has attempted to challenge the said dues computed by the Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 30/34 complainant, but he seems to have failed miserably in his endeavor. Reason being the fact that CW1 never admitted that the outstanding liability of accused was less than the aforesaid amount. It must be noted here that accused has not bothered to put any account statement prepared by him to CW1 during his cross-examination so as to rebut the claim of complainant regarding the outstanding liability of accused. That apart, it must be mentioned here that the said liability was computed by the complainant on the basis of statement of account Ex. CW1/3 pertaining to the accused, which statement bears the 'stamp' of the firm of the accused (signatures thereupon have been denied by the accused). This court fails to understand as to how the said 'stamp' came to be affixed on the said statement of account and as to why the accused has not bothered to take any action qua the availability of the said 'stamp' despite denying his signatures. All the above factors seem to operate against the claim put forth by the accused. In fact, here it would be appropriate to refer to the admission made by the accused in his cross examination dated 23.03.2023 wherein he has admitted that he owes an amount of Rs. 9,39,884.78/- as on 24.12.2020. The said liability was sufficient for the complainant to present the cheques in question for encashment, particularly when the cumulative value of cheques in question is Rs.9,36,381/-.
13.3. The next claim of the accused is that he was supplied inferior quality goods by the complainant but the complainant has failed to resolve the grievance of the accused and rather proceeded to misuse the cheques in question. It may be noted here that except for a sole suggestion given to LOVLEEN CW-1, to the effect that the cheques in question were misused by Digitally signed by LOVLEEN complainant to pressurize the accused to make payments of inferior quality Date: 2024.08.07 14:41:12 +0530 goods supplied to him (accused), nothing else has been brought on record Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 31/34 by the accused to suggest that any inferior quality goods were indeed supplied to him by the complainant. Infact, the accused has not bothered to specify the nature of said inferior quality goods supplied to him or the date and time of the said supply. Nor has he specified the 'quality defects' in the said goods. As such, the mere suggestion regarding supply of inferior quality goods, which was declined by CW-1, is not sufficient to uphold the claim of the accused that he was actually supplied some inferior quality goods by the complainant, which required any adjustment of accounts. 13.4 When seen and considered in totality, it could be safely held accused could not bring any material on record favoring his defence during the cross examination of CW-1. In such circumstances, it must be held that the accused has not been able to rebut the presumptions operating against him during the course of cross examination of CW1.
14. Now this court proceeds to assess the defence evidence led on record by accused. At the cost of repetition, it must be observed here that the accused examined himself as DW1 and deposed as under:-
"I adopt my statement recorded U/s 313 Cr. P.C as my examination in chief. I am doing business with the complainant company since the year 2017. I use to pay the advance payment for my purchases from the complainant company. In the year 2017, the complainant company agreed to supply the goods on credit basis subject to giving of 6 Blank Signed Security cheques, which were accordingly Digitally issued by me to complainant company in month of October, signed by LOVLEEN 2017. Copy of my counterfoils of the cheque book showing LOVLEEN Date:
2024.08.07 14:41:20 the issuance of 6 security cheques in favour of the +0530 complainant company is EX. DW1/1 (OSR) (Colly consisting Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 32/34 of 12 pages) showing the relevant entry at Page No. 9. Thereafter, our dealing were continued and during the year 2019-2020 and 2020-2021, I have paid most of the payment towards purchases from the complainant company through NEFT and that no payment was made by cheque. Copy of my statement of account in my books of account for the period from 01.04.2020 till 24.12.2020, showing my payments to the complainant company through bed NEFT, is annexed as EX. DW1/2 (Colly consisting of 3 pages). During the year 2020, the complainant company supplied inferior quality of material to us, thus, we sent a mail to the complainant company for arranging a meeting to settle the matter which was duly replied by complainant company that firstly I will have to make payment only then they will settle the matter. The copy of said e mail conversation is Ex. DW1/3. Instead of settelling the matter the complainant company has filed present complaint against me misusing my 4 blank signed security cheques out of total 6 blank signed security cheques which were obtained by complainant company in October, 2017. The cheques in questions were never issued towards any due payment to the complainant company. The certificate U/S 65 B of Indian Evidence Act is Ex. DW1/4."
LOVLEEN 14.2. However, during his cross-examination, accused admitted that as Digitally signed per his ledger account Ex. DW1/2 (colly), he owes an amount of Rs. by LOVLEEN Date:
2024.08.07 14:41:27 +0530 9,39,884.78/- to the complainant as on 24.12.2020. Admittedly, the cumulative value of the cheques in question is Rs.9,36,381/-, which is less than his outstanding liability admitted by the accused himself. In such Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 33/34 circumstances, there is no need to delve any further into the other aspects of the oral testimony of accused, as the same are in the nature of bald oral statements, unsubstantiated by any documentary material and have already been dealt with in the aforegoing paragraphs. Having ruled so, this Court holds that the accused has not been able to rebut the statutory presumptions operations against him through the defence evidence either.
DECISION
15. Apparently, all the statutory presumptions available to the complainant remain unrebutted and intact. All the ingredients of the offence punishable u/s 138 NI Act are available against the accused. Consequently, it has to be held that accused was correctly convicted u/s 138 NI Act by the Ld. Metropolitan Magistrate concerned. For the afore-going reasons, the impugned judgment dated 24.04.2023 is hereby affirmed and upheld.
SENTENCE
16. Admittedly, the cheques in question were issued for a payment of Rs.9,36,381/-, in the year 2020. Admittedly, the complainant has been running from pillar to post to recover the said amount. So far as the aspect of sentencing by Ld. Trial Court is concerned, I am of the view that Ld. Trial Court has already taken quite a lenient view while sentencing the accused. As such, the sentence imposed by the Ld. Trial Court does not call for any interference. Benefit of Section 428 Cr.P.C. be also given to the accused.
17. Appeal filed by accused therefore stands disposed of in above Digitally terms. signed by LOVLEEN LOVLEEN Date:
Announced & Dictated in the 2024.08.07
14:41:37
Open Court today i.e. 07.08.2024 +0530
(Lovleen)
ASJ-03 (South East)
Saket Courts, Delhi
Crl. Appeal No: 170/2023 Gajendra Kaushik. Vs M/s Pheumax Pneumatic India Ltd 34/34