Delhi District Court
Amit Sharma vs Anil Kumar on 23 January, 2025
IN THE COURT OF MS AMBIKA SINGH, ASJ-02/ WEST
DISTRICT, TIS HAZARI COURTS, NEW DELHI
Criminal Appeal No. 234/2022
CNR No. DLWT01-009057-2022
Sh.Amit Sharma
Son of Sh.Rajender Sharma
R/o A-113, Gali no.6, Tilak Enclave
Uttam Nagar(West)
Delhi-110059
.......Appellant
Vs.
Sh.Anil kumar
son of late Sh.Hari Ram
R/o H.No.26, Tihar camp,
New Delhi
......Respondent
Date of institution of the cases : 19.09.2022
Date when the cases reserved for order : 22.01.2025
Date of announcement of order : 23.01.2025
JUDGMENT:-
1. The criminal appeal under Section 374 of 'The Code of Criminal Procedure, 1973' (In short 'Cr.P.C.') is directed against judgment dated 12.08.2022 and order on sentence dated 27.08.2022 in CC no. 8005/2019 titled as 'Anil Kumar Vs. Amit Sharma' under Section 138 of 'The Negotiable Instruments Act, 1881' (in short 'NI Act') whereby Ld. MM (NI Act), West District, Tis Hazari Courts, Delhi (in short 'the trial Court') convicted the appellant for offence under Section 138 NI Act and CA 234/2022 Page No. 1 of 22 Amit Sharma Vs. Anil Kumar sentenced to simple imprisonment for a period of two months and convict/appellant is further sentenced to pay compensation to the complainant for an amount of Rs.3,70,000/- in default of payment of compensation, convict shall undergo further simple imprisonment for a period of 15 days.
2. It is briefly stated that the respondent (hereinafter referred to as 'the complainant') instituted a complaint case under Section 138 NI Act on the averments that in February 2019 the appellant/accused was doing the business of property dealing with his partner Umesh Yadav. Respondent/complainant along with Rinku Diwakar approached him. Appellant and respondent both entered into an agreement to sell dated 18.2.2019 Ex. CW1/1 regarding plot no.1A and 2 measuring about 75 sq.yd out of khasra no.12/25/2 situated in revenue record of village Rajapur Khurd, Delhi known as Tilak Enclave, Mohan Garden Uttam Nagar, New Delhi for total consideration amount of Rs. 28,20,000/- out of which respondent had paid Rs. 2 lacs on 11.2.2019 in cash to Umesh Yadav and Rs. 4 lacs on 18.2.2019 in cash to appellant as the earnest money/Bayana amount. Balance amount of Rs 22,20,000/- was to be paid by respondent to appellant as full and final at the time of execution of transfer documents in favour of respondent on or before 11.05.2019. That at the time of Agreement to Sell Ex. CW1/1, appellant had issued three blank cheques including cheque in dispute to the complainant as the security of earnest money on request of respondent. Further, on 11.5.2019 the respondent did not turn up for the execution of Sale deed nor made the remaining payment CA 234/2022 Page No. 2 of 22 Amit Sharma Vs. Anil Kumar nor made any communication hence appellant forfeited the earnest money as per para 10 of the Agreement to Sell dated 18.2.2019 Ex. CW1/1. Out of these three cheques, one cheque of Rs.10,000/- was encashed on 29.05.2019. That the accused assured that the said cheque would be honoured on presentation to the bank and the complainant presented cheque in question which is Ex. CW1/2 bearing No. 066192 dated 05.09.2019 for an amount of Rs.2,90,000/- drawn on Oriental Bank of Commerce, Dwarka, New Delhi and the same is returned unpaid by the banker for the reason "funds insufficient" vide return memo dated 17.09.2019 which is Ex. CW1/3. Legal demand notice which was sent by speed post on 24.09.2019 is Ex. CW1/4 (Colly). The Postal receipts are Ex. CW1/5 and RC covers are Ex. CW1/6 and Ex. CW1/7. Further, it is submitted by the complainant/respondent that the accused/appellant has failed to pay the amount of cheque in question within the stipulated period of 15 days. Thereafter, complainant/respondent has filed the present written complaint case u/s 138 r/w 142 N.I. Act, 1881.
3. While assailing the impugned order dated 12.08.2022 and order on sentence dated 27.08.2022, the grounds taken by Ld. Counsel for the appellant are that, Ld. Trial Court has arbitrarily passed the judgment without considering the actual facts and circumstances of the case. Further, Ld. Trial Court has failed to appreciate the rebutted presumption of Negotiable Instrument Act and respondent has to prove his entire case and to prove the same beyond reasonable doubt. Further, Ld. Trial Court has failed to appreciate the fact of admission by respondent in cross CA 234/2022 Page No. 3 of 22 Amit Sharma Vs. Anil Kumar examination that if either party back out from the agreement to Sell dated 18.2.2019 then para 10 of agreement will attract and since the deal was not matured and on the basis of which appellant has forfeited the earnest money. Further, Ld. Trial Court has further failed to appreciate the fact of admission in cross examination by respondent that he never sent any legal notice to the appellant for specific performance of the agreement nor sent any notice regarding sale deed. Further, Ld. Trial Court has failed to appreciate para 10 of the Agreement to Sell. Ld. Trial Court has failed to consider the ingredients of offence u/s 138 NI Act and presumption has been rebutted by the appellant by cogent and clinching evidence. Respondent stated in his complaint that he approached the Bank for loan in the month of April, 2019 where he came to know that appellant was not true and lawful owner of the property. Ld. Trial Court has also failed to appreciate the admission of fact by respondent in his cross examination that he has not filed any document regarding process of loan nor sent any notice to the accused regarding ownership of plot nor made any enquiry from any person nearby. Further, Ld. Trial Court has failed to appreciate the fact that respondent stated that he had paid Rs. 6 lacs to the appellant/accused , rather he had paid Rs. 2 lacs out of Rs. 6 lacs to Sh.Umesh Yadav. Moreover, respondent in his entire cross examination made contrary statement that he did not know whether Umesh Yadav and appellant were joint owner of property or not. Further, Ld. Trial Court has failed to appreciate the contradictory statement given by respondent in his cross examination. Therefore, the appellant has filed this appeal. Further, it is prayed that CA 234/2022 Page No. 4 of 22 Amit Sharma Vs. Anil Kumar judgment dated 12.08.2022 and order of sentence dated 27.8.2022 passed by Ld. Trial Court be set aside.
4. Notice of the Revision petition was issued to the respondent on which the respondent entered his appearance. TCR was also summoned.
5. Also, an application u/s 391 Cr. PC r/w section 311 Cr. PC moved by the appellant/accused for allowing the appellant for leading evidence.
6. It is submitted by appellant that before the Ld. Trial Court, the appellant did not lead evidence as the previous counsel of appellant told him that there is no requirement to lead evidence and the complaint of the complainant will be dismissed. The appellant/accused relied on his previous counsel and did not lead evidence and the complaint was decided against the appellant and he was convicted by the Ld. Trial Court due to non-leading of evidence. It is further submitted that there are various material aspects in the present case which are necessary for the case to be decided on merits and only by leading defence evidence by appellant and the said material facts are the root of the present case and quite necessary to reach the bottom of the case and to have a just and fair decision. It is further submitted that the above facts and circumstances, it is obligatory to permit the appellant to prove all the above stated facts before the court. Lastly it is argued that present application needs to be allowed for one more reason that it has been filed in a process to show that real truth of the respondent and his lies. The present application is also an attempt of an innocent person to prove his innocence before this CA 234/2022 Page No. 5 of 22 Amit Sharma Vs. Anil Kumar court.
7. Per contra, Ld. Counsel for respondent/complainant has argued the matter and stated that the present revision petition is not maintainable on the sole ground of jurisdiction and stated that the present appeal shall be dismissed. As far as application u/s 391 Cr. PC is concerned, it is argued by respondent/complainant that there is no explanation by the appellant/accused why he has not lead DE in the present case and appellant/accused has been rightly convicted by the Ld. Trial Court in the present matter and the appellant/accused has moved the application u/s 391 Cr. PC just to delay the trial, therefore, it should be dismissed and judgment dated 12.08.2022 and order on sentence dated 27.08.2022 should be upheld.
8. I have heard the arguments of ld. Counsels for both the parties on the application u/s 391 Cr. PC as well as petition and perused the record carefully.
9. First of all, I shall be dealing with the application u/s 391 Cr. PC. It has been argued that the earlier counsel did not tell the appellant that DE is to be lead in the present case. It is well settled law the ignorance of the law is no excuse. Further, the advocates are just mouth piece of the parties. At this stage, appellant/accused can not take the stand that they did not know that the evidence was to be led in the present case. Perusal of the records shows that the opportunity has been granted to the appellant/accused to lead DE, however, he has failed to do so and only thereafter, DE was closed vide his separate statement dated 22.07.2022 to this effect. Therefore, the present application lacks bonafide and does not have merits and in view thereof, CA 234/2022 Page No. 6 of 22 Amit Sharma Vs. Anil Kumar application u/s 391 Cr. PC is hereby dismissed. Merits of the appeal.
CONTENTIONS OF THE COMPLAINANT/ RESPONDENT:
10. Ld. Counsel for the complainant/respondent contended that the accused has admitted that the cheque in question bears his signature. Accused has not led any defence evidence to rebut the case of respondent herein and whole case of the respondent has been admitted by the appellant except the time of issuance of cheque in question and same was not proved by the appellant. In his statement u/s 313 Cr.PC appellant admitted tht he had forfeited the earnest money of Rs. 6 lacs paid by complainant. The main defence of the accused was that he had forfeited the earnest money as per para 10 of the agreement to sell and cheque in question was issued as security at the time of payment of earnest money and not later on, to return earnest money. Appellant has not led any evidence to prove this fact. It is further submitted that admission of signature and account number has itself creates the presumption u/s 139 NI Act in favour of the respondent and appellant has completely failed to rebut the presumption raised u/s 139 NI Act that such liability do not exist. It is prayed that present criminal appeal be dismissed and convict the appellant for the imprisonment of 2 years ordering him to pay double amount of cheque i.e. Rs. 6 lacs to the respondent.
11. The jurisdiction of the appellate court is co- extensive with that of the trial court in the matter of assessment, appraisal and appreciation of the evidence and also to determine the disputed CA 234/2022 Page No. 7 of 22 Amit Sharma Vs. Anil Kumar issues. A court exercising appellate power must not only consider questions of law but also questions of fact and in doing so it must subject the evidence to a critical scrutiny. In Surinder Mohan Katwal vs. State of Himachal Pradesh, (2018) 15 SCC 349, Hon'ble Supreme Court of India held as under:
"14.....The powers of the appellate court under Section 386 CrPC are the same as that of the trial court. It is true that the trial court being a primary court of facts, which has the advantage of seeing and observing the witnesses has to thoroughly analyse the evidence and record its findings. In an appeal from a conviction, it is for the appellate court to be satisfied affirmatively that the prosecution case is substantially established and record its own findings to confirm the conviction....."
POINTS FOR CONSIDERATION:
(a) Whether the appellant had drawn a cheque on an account maintained by him with a banker for payment of an amount of Rs. 2,90,000/- in favour of the complainant?
12. Throughout the trial, the accused has admitted that cheque bears his signatures. In his plea of defence as recorded on 24.01.2020, he has admitted that cheque bears his signature. Accused/appellant in his statement u/s 313 Cr. PC r/w Section 281 Cr. PC as recorded on 21.05.2022, has also admitted that the cheque was issued by him but it was a security cheque. Therefore, it stands proved that appellant had drawn cheque on an account maintained by him with a bank.
(b) Whether statutory presumption under Section 118 (a) and 139 NI Act that the said cheque was drawn for consideration and the complainant received the said cheque CA 234/2022 Page No. 8 of 22 Amit Sharma Vs. Anil Kumar for discharge of any debt or other liability can be raised?
13. In Hiten P. Dalal Vs. Bratindranath Banerjee, (2001) 6 SCC, Hon'ble Supreme Court of India held that presumption under Section 139 NI Act is a presumption of law, as distinguished from a presumption of fact. It is obligatory on the court to raise this presumption in every case where factual basis for raising of presumption is established.; There is no discretion with the court but to draw the statutory presumption.
14. In Rangappa Vs. Sri Mohan, (2010) 11 SCC 441, Hon'ble Supreme Court of India interepreted Section 139 NI Act as under:
"27. Section 139 of the Act is an example of a reverse onus clause that has been inclused 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 chequs, the rebuttable presumption under Section 139 is a device to prevent undeu 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 bounding 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 intrepretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard or proof."
15. In Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513, Hon'ble Supreme Court of India held that in a trial under Section 138 NI Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted.
CA 234/2022 Page No. 9 of 22Amit Sharma Vs. Anil Kumar As soon as the complainant discharges the burden to prove that the instrument was executed by the accused, the rules of presumptions under Section 118 and 139 NI Act help him shift burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability.
16. In Rohit Bhai Jivanlal Patel vs. State of Gujarat & Another, (2019) 18 SCC 106, the accused could not deny his signatures on the cheques and that the said cheques were presented to the bank within the period of their validity and returned unpaid for the reason of either the balance being insufficient or the account being closed. Hon'ble Supreme Court of India held as under:
"15.......Therefore, it is required to be presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e. the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the appellant- accused to establish a probable defence so as to rebut such a presumption."
17. In Kalamani Tex and Another Vs. P. Balasubramanina, (2021) 5 SCC 283, Hon'ble Supremene Court of India held that the statue mandates that once the signature of an accused on cheque is established, then these "reverse onus" clause become operative and the obligation shifts upon the accused to discharge the presumption imposed upon him.
18. The appellant/accused admitted his signature and account number maintained by him with respect to cheque in questioned.
CA 234/2022 Page No. 10 of 22Amit Sharma Vs. Anil Kumar As already noted, it is proved that the said cheque was signed by the appellant/accused. Therefore, statutory presumption under Section 118(a) and 139 NI Act that the said cheque was drawn for consideration and the complainant received it in discharge of an existing debt or other liability are drawn against the appellant.
(c)Whether the Trial Court rightly presumed existence of legal liability against the appellant?
19. Ld. counsel for the appellant contended that the Trial Court committed a patent error of law in presuming existence of legally enforceable liability of the appellant towards the complainant.
20. In Hiten P. Dalal Vs. Bratindranath Banerjee (supra), Hon'ble Supreme Court of India held that the effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability.
21. In Bhupesh Rathod vs. Dayashankar Prasad Chaurasia & Anr., Crl. Appeal No. 1105/2021 decided on 10.11.2021, Hon'ble Supreme Court of India held that the words of Section 139 NI Act are quite clear that unless the contrary is proved, it shall be presumed that the holder of the cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.
22. In Rangappa vs. Sri Mohan (Supra), Hon'ble Supreme CA 234/2022 Page No. 11 of 22 Amit Sharma Vs. Anil Kumar Court of India held that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat may not be correct.
23. Therefore, the Trial Court has not committed any error in presuming existence of a legally enforceable debt or liability against the appellant.
(d) Whether the complainant was required to prove existence of any legally enforceable debt or liability against the appellant?
24. Ld. Counsel for the appellant contended that the complainant did not prove existence of any legally enforceable debt or liability against the appellant. Ld. Counsel for the appellant further contended that accused has also admitted whole case of the complainant except the fact of issuance of cheque in question. It is further contended that in para 10 of agreement to sell Ex. CW1/1, it is specifically written that accused can forfeit the earnest money if the complainant failed to get the sale deed executed on or before 11.05.2019 and therefore, the accused is very well in his rights to forfeit the earnest money of Rs.6,00,000/- paid by the complainant. It is further contended that when accused has forfeited the earnest money then why would he issued cheques for the payment of that earnest money back and the cheque in question was given as security at the time of payment of earnest money by the complainant to the accused CA 234/2022 Page No. 12 of 22 Amit Sharma Vs. Anil Kumar as they were not known to each other. Lastly it is contended that complainant has misused the cheque in question in order to harass the accused and to extort money from him.
25. In Bir Singh Vs. Mukesh Kumar, (2019) 4 SCC 197, Hon'ble Supreme Court of India held that the loan was not advanced through banking mode or there was no receipt regarding the said loan would not make any difference and the finding of the High Court that the burden was on the appellant to prove that the had advanced the loan and the blank signed cheque was given to him in repayment of the same was patently erroneous. The finding of the High Court that the case of the appellant was highly doubtful was set-aside as under:
"37. The fact that the appellant complainant might have been an Income tax Practitioner conversant with knowledge of law does not make any difference to the law relating to the dishonour of a cheque. The fact that the loan may not have been advanced by a cheque or demand draft or a receipt might not have been obtained would make no difference.....
39. In our considered opinion, the High Court patently erred in holding that the burden was on the appellant complainant to prove that he had advanced the loan and the blank signed cheque was given to him in repayment of the same. The finding of the High Court that the case of the appellant complainant became highly doubtful or not beyond reasonable doubt is patently erroneous for the reasons discussed above."
26. In Rohit Bhai Jivanlal Patel vs. State of Gujarat & Another (supra), Hon'ble Supreme Court of India held as under:
"20.....Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not.....CA 234/2022 Page No. 13 of 22
Amit Sharma Vs. Anil Kumar
22. The result of discussion in the foregoing paragraphs is that the major considerations on which the trial court chose to proceed clearly show its fundamental error of approach where, even after drawing the presumption, it had proceeded as if the complainant was to prove his case beyond reasonable doubt....."
27. In Kalamani Tex and Another vs. P. Balasubramanian (supra), Hon'ble Supreme Court of India held as under:
"14. Once the 2nd appellant had admitted his signatures on the cheque and the deed,the trial court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The trial court fell in error when it called upon the respondent complainant to explain the circumstances under which the appellants were liable to pay. Such approach of the trial court was directly in the teeth of the established legal position as discussed above, and amounts to a patent error of law."
28. The complainant is not required to prove existence of a legally enforceable debt or other liability as if, the complainant is to prove a debt before a civil Court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount.
29. A dishonour of the cheque carries a statutory presumption of consideration. The holder of cheque in due course is required to prove that the cheque was issued by the accused and that when it was presented, it was not honoured. After drawing presumption under Section 118 (a) and 139 NI Act, the onus is shifted to the accused and unless the accused discharges the onus by bringing on record such evidence demonstrating a probable defence, the complainant cannot be called upon to show existence of a legally enforceable debt or other liability.
CA 234/2022 Page No. 14 of 22(e) What is the manner and standard of proof for dislodging presumption under Section 118 (a) and 139 NI Act?
30. As regards standard of proof for displacing presumption under Section 118 (a) and 139 NI Act, it is settled that the defence has to establish its case on the principle of preponderance of probability.
31. In Rangappa vs. Sri Mohan (supra), Hon'ble Supreme Court of India held that standard of proof for rebutting presumption under Section 139 NI Act is preponderance of probabilities and for that matter, the accused can rely on the material submitted by the complainant, as under:
"28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities".
Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his / her own.
32. In Kishan Rao vs. Shankargouda, (2018) 8 SCC 165, Hon'ble Supreme Court of India held that the accused may adduce evidence to rebut the presumption, but mere denial CA 234/2022 Page No. 15 of 22 Amit Sharma Vs. Anil Kumar regarding existence of debt shall not serve any purpose. It was held in para 20: (Kumar Exports case, SCC p. 520) as under;-
"20..... The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non- existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist....."
33. Once the signature of the appellant on the said cheque are established, then "reverse onus" clauses become operative. The obligation to discharge the presumption is shifted upon the appellant/accused.
34. The presumptions raised under Section 118 (a) and 139 NI Act are rebuttable in nature. The appellant is required to raise a probable defence and the standard of proof for displacing the presumption is preponderance of probability and not mere possibility. The appellant can lead evidence or rely upon the evidence adduced by the complainant to show non-existence of a legally enforceable debt or other liability or want of consideration.
(f) Whether the appellant is able to raise a probable CA 234/2022 Page No. 16 of 22 Amit Sharma Vs. Anil Kumar defence?
35. Perusal of the pleadings shows that appellant/accused has entered into an agreement to sell dated 18.2.2019 with the respondent regarding one plot for total consideration amount of Rs. 28,20,000/- out of which respondent had paid Rs. 2 lacs on 11.2.2019 in cash to Umesh Yadav, partner of appellant and Rs. 4 lacs on 18.2.2019 in cash to appellant, total amount of Rs. 6 lacs as earnest money/Bayana amount. Balance of Rs. 22,20,000/- was to be paid by the respondent to the appellant as full and final at the time of execution of documents in favour of respondent. Appellant further stated that on 18.2.2019 at the time of execution of agreement to Sell, appellant/accused had issued three blanks cheques including cheques in dispute to the respondent as security of earnest money/Bayana amount was paid in cash on request of respondent as both parties were not known to each other. In his cross examination CW-1 Respondent/complainant has deposed that he had paid Rs. 2 lacs to accused Amit sharma and not Umesh Yadav. Hefurther paid Rs. 4 lacs to accused/appellant Amit sharma. CW-1 further stated in his cross examination that he did not pay the remaining amount because accused was not the true and lawful owner of said plot. CW-1 denied that the cheque in question was handed over to him for security purpose and misused by him. He denied the suggestion that cheque in question was given to him as security cheque in lieu of transaction regarding the plot.
36. After carefully scrutinizing the testimony of aforesaid CA 234/2022 Page No. 17 of 22 Amit Sharma Vs. Anil Kumar witness, it is crystal clear that the defence taken by accused is a sham one. Appellant did not lead any DE. He taken the stand that 18.2.2019 at the time of agreement to Sell, appellant/accused had issued three blanks cheques including cheques in dispute to the respondent as security of earnest money/Bayana amount. It has been argued that the Ld. Trial Court has not taken into consideration the Bayana receipt. However, as discussed earlier, the accused/appellant has not brought any evidence on record to prove this fact. No witness has been brought by him in his defence evidence that the amount was bayana amount. Further, it is beyond comprehension of this court that why no complaint or recourse to the public authorities has been taken by the appellant/accused if the complainant/respondent has misused the cheque. Thus, there is no evidence on record to prove that the cheques were given as security. Accused/appellant has not led any evidence in his defence. Ld. Trial Court has rightly observed that accused did not place any kind of evidence on record to prove his defence. It clearly shows that entire defence taken by the accused is sham and he just created a false story to escape from his liability. Thereafter respondent approached the appellant for return of said amount and after active persuasions and follow ups , the accused issued aforesaid three postdated cheques out of which cheque no. 066193 dated 28.5.2019 of Rs. 10,000/- drawn on Oriental Bank of Commerce was honoured on presentation. Cheque in question bearing no. 066192, dated 5.9.2019 for Rs. 2,90,000/- was dishonored. Accused had intentionally issued the cheques and not arranged the requisite funds in his account.
CA 234/2022 Page No. 18 of 2237. Further, as regards contention that the said cheque was a security cheque and it can be stated that the complainant, in his examination-in-chief Ex.CW1/A, categorically stated that the appellant had issued the said cheque. There is nothing in the cross examination to suggest otherwise. No defence eidence has been led.
38. Moreover, a security cheque issued for discharge of the present liability as security would not absolve the accused from penal consequences under Section 138 NI Act.
39. Further, it is well settled law that a security cheque issued for discharge of the present liability as security would not absolve the accused from penal consequences under Section 138 NI Act.
40. In Sripati Singh vs. The State of Jharkhand & Anr., Crl. Appeal Nos. 1269-1270 of 2021 decided on 28.10.2021, Hon'ble Supreme Court of India held as under:
"16.....If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified time-frame and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow."
41. The complainant presented the said cheque dated CA 234/2022 Page No. 19 of 22 Amit Sharma Vs. Anil Kumar 05.09.2019 Ex. CW1/2 for encashment within its period of validity. The said cheque was returned unpaid by the banker of the appellant with the endorsement "fund insufficient" vide bank memo dated 17.09.2019 Ex CW1/3. The complainant issued demand notice dated 24.09.2019 Ex. CW1/4 (Collly) within the prescribed period. The appellant stated in his notice u/s 251 Cr. PC, he has not received any legal demand notice. The appellant failed to make payment of the cheque amount within statutory period. The complaint was within limitation. The complaint established all pre-requisites as required under Section 138 NI Act.
42. The appellant was rightly convicted for committing offence under Section 138 NI Act.
43. There is no manifest error of law or procedure or perversity in the impugned judgment.
44. On the aspect of sentence, it may be noted that the cheque was returned for the first time unpaid on 17.09.2019 and the complaint was instituted on 21.10.2019.
45. In Bhupesh Rathod (supra), Hon'ble Supreme Court of India held that the respondent should be sentenced with imprisonment for a term of one year and with fine twice the amount of the cheque as under:
"29.....The complaint was instituted in July, 2006. Fifteen (15) years have elapsed since then. The punishment prescribed for such an offence under Section 138 of the NI Act is imprisonment for a term which may extend to two years, or with fine which CA 234/2022 Page No. 20 of 22 Amit Sharma Vs. Anil Kumar may extend to twice the amount of the cheque, or with both. We are of the view that in the given scenario the respondent should be sentenced with imprisonment for a term of one year and with fine twice the amount of the cheque, i.e. Rs. 3,20,000/-."
46. In Kalamani Tex vs. P. Balasubramanian (supra), Hon'ble Supreme Court of India held as under:
"19. As regards the claim of compensation raised on behalf of the respondent, we are conscious of the settled principles that the object of Chapter XVII of NIA is not only punitive but also compensatory and restitutive. The provisions of NIA envision a single window for criminal liability for dishonour of cheque as well as civil liability for realization of the cheque amount. It is also well settled that there needs to be a consistent approach towards awarding compensation and unless there exist special circumstances, the courts should uniformly levy fine up to twice the cheque amount along with simple interest @ 9% p.a."
47. In the present case, the cheque amount is Rs. 2,90,000/-. The complaint case was instituted on 21.10.2019. The Ld. Trial Court is sentenced to undergo simple imprisonment for a period of two months and convict/appellant is further sentence to pay compensation to the complainant for an amount of Rs.3,70,000/-. In default of payment of compensation, convict shall undergo further simple imprisonment for a period of 15 days.
48. The Trial Court has taken lenient view in imposition of compensation. There is no reason to interfere in the quantum of compensation.
49. Accordingly, the appeal filed by the appellant challenging conviction for commission of offence under Section 138 NI Act is dismissed. I find no infirmity in the order passed by the Ld. Trial Court. As per the order on sentence dated 27.08.2022, CA 234/2022 Page No. 21 of 22 Amit Sharma Vs. Anil Kumar accused is sentenced for simple imprisonment for a period of two months and convict/appellant is further sentence to pay compensation to the complainant for an amount of Rs.3,70,000/-. In default of payment of compensation, convict shall undergo further simple imprisonment for a period of 15 days. I do not find any reason to interfere with the same. Appellant is directed to pay fine amount before the Ld. Trial Court itself after adjusting amount already paid, if any. Appellant is directed to appear before the Ld. Trial Court to undergo the said punishments within 10 days from today.
50. A copy of the judgment along-with trial Court record be sent to the Trial Court. Appeal file be consigned to record room. Digitally signed by AMBIKA AMBIKA SINGH SINGH Date:
2025.01.28 10:45:11 +0530 Announced in the open court (Ambika Singh) on 23.01.2025 ASJ-02/THC, West/Delhi 23.01.2025 CA 234/2022 Page No. 22 of 22 Amit Sharma Vs. Anil Kumar