Delhi District Court
Jagdish Prasad Gautam vs Rajesh Kumar on 11 January, 2018
IN THE COURT OF R.L. MEENA: ADDL. SESSIONS JUDGE02:
DWARKA COURTS: NEW DELHI
Criminal Appeal No.: 06/16
New No. 440238/2016
ID No. 02405R0073442015
Jagdish Prasad Gautam,
S/o. Late Sh. Jaimal Ram,
R/o. House No. RZ1103,
Street No. 14/01, Sadh Nagar,
Palam, New Delhi110 045
.... Appellant
VERSUS
Rajesh Kumar,
S/o. Late Sh. Ram Chander,
R/o. House no. SRS93, Village Nasirpur,
PO Palam, New Delhi110 045
.... Respondent
Date of institution : 29.06.2015
Date of arguments : 22.12.2017
Date of pronouncement: 11.01.2018
11.01.2018
JUDGMENT:
1. This is an appeal u/s 374 of the Code of the Criminal Procedure, 1973 (Cr.P.C) preferred by Jagdish Prasad, appellant/accused against the impugned judgment dated 26.05.2015 and order on sentence dated Jagdish Prasad v. Rajesh Kumar Crl. Appeal No. 06/16 Page no. 1/22 30.05.2015 passed by the court of Sh. Ravinder SinghII, Metropolitan Magistrate07, Dwarka Courts, New Delhi in complaint case bearing No. 6889/14 u/s 138 NI Act, titled as, 'Rajesh Kumar Vs. Jagdish Prasad Gautam' whereby the appellant/accused was found guilty of having committed offence punishable u/s 138 of Negotiable Instruments Act, 1881 (Act 26 of 1881) and appellant was sentenced to simple imprisonment for a period of six months and to pay a compensation of Rs. 7 Lacs, to the complainant and in default of payment of compensation, the accused shall further undergo SI for three months.
2. In complaint case no. 6889/ 14, the respondent herein made a complaint u/s 138 of the Act 26 of 1881 against the appellant stating that appellant/accused was having friendly relations since last many years with Sh. Kapoor Singh, elder brother of the complainant/respondent and being family friend, the accused is also familiar and known to him. In the month of April, 2012, the appellant/accused approached the complainant with request for financial assistance as the appellant/ accused had to make payment of a plot in Palam as per certain agreement with some other person and the time period for completion of the said transactions was stated by the accused to expire by the end of April. It is further stated that on 22.04.2012, the complainant advanced a sum of Rs. 7 Lacs to the accused and accused borrowed the said Jagdish Prasad v. Rajesh Kumar Crl. Appeal No. 06/16 Page no. 2/22 amount for a maximum period of 6 months only. Appellant/accused promised to return the said loan within four months along with interest @ 24% p.a. It is further stated that the accused in order to discharge his loan liability handed over a post dated cheque bearing no. 589025 dated 23.08.2012 amounting to Rs. 7 Lacs, drawn on State Bank of Patiala, Palam Extn. Branch, New Delhi to the complainant. It is further stated that when the appellant/accused failed to return the said amount, within the prescribed period to the complainant as per his promise, the respondent/complainant presented the said cheque for encashment to his banker Oriental Bank of Commerce, Mahavir Enclave Branch, New Delhi, but the same was dishonored vide cheque returning memo dt 04.10.2012 with the remark "funds insufficient". Thereafter, legal notice dated 18.10.2012 was sent to the appellant/accused however despite service of the notice, he failed to make the payment against the cheque within 15 days.
3. On the basis of the complaint made by the respondent against the appellant, the Learned Metropolitan Magistrate having taking cognizance of the offence passed order u/s 204 of the Cr.P.C whereby appellant was summoned and subsequently put on trial for having committed the offence punishable offence u/s 138 of the Act 26 of 1881 in respect of cheque Ex CW 1/1.
Jagdish Prasad v. Rajesh Kumar Crl. Appeal No. 06/16 Page no. 3/22
4. During the trial of the case, respondent/complainant led oral as well as documentary evidence and the accused/appellant was examined u/s 313 Cr.P.C on 17.02.2015. Appellant/accused has also examined himself as DW1 in defence evidence. The trial court, after hearing counsel for parties, pronounced impugned judgment dated 26.05.2015 whereby appellant was convicted for having committing the offence charged against him and on 30.05.2015 vide separate order, which has also been impugned in the present appeal, sentenced the appellant in the manner indicated above.
5. The appellant/accused has raised the defence that he has not taken any loan from the complainant and he was not having any relation with the brother of the complainant. He further claimed that he had approached the complainant for taking any financial assistance for the purchase of plot. However, he admits his signatures on the cheque in question. He further admits that he filled up the particulars on the cheque i.e. amount, numerics, date and name of payee. He further claimed that there is a person namely Rajesh Kumar, friend of his deceased son Praveen who approached him in the year 2012 and requested him to issue the cheque in question as same was required for the purpose of security for Government tenders. He further stated that in view of the said request of friend of his son, he left his house for giving the cheque in question but Jagdish Prasad v. Rajesh Kumar Crl. Appeal No. 06/16 Page no. 4/22 same was lost in the way. Thereafter, he instructed his bank on 20.07.2012 for stopping the payment of the said cheque vide complaint Ex.DW1/A. He has also stated that on 19.10.2012, he received a legal demand notice Ex.CW1/3 from one Rajesh Singh Girsha who claimed that he paid a loan of Rs. 7 lakhs to him and he directed to pay the said amount within 15 days. He further stated that since he did not know the said person therefore, he lodged a complaint dt 20.10.2012 Ex.DW1/C in PS Palam Village against the respondent for misusing the cheque in question. He further claimed that complainant has misused his lost cheque and he does not owe any liability towards him.
6. In support of his case, appellant/accused has examined Sh. Rajesh Kumar (DW2), who deposed that accused Jagdish Prashad is known to him since the year 1987 as his late son Sh. Praveen Gautam used to study with him. He has family relations with the complainant since 1987 and he treated him as a son. He further deposed that he demanded a sum of Rs. 7 Lacs from the accused Jagdish Prashad in the year July August, 2012. He went to collect the cheque from the accused Jagdish Prashad on 23.08.2012. The accused replied him that he lost the cheque somewhere, so he was not in a position to give the cheque.
7. Learned trial court, after having gone through the evidence of parties, has held guilty accused/appellant for the offence punishable u/s 138 N.I. Jagdish Prasad v. Rajesh Kumar Crl. Appeal No. 06/16 Page no. 5/22 Act on the following reasons:
(i) Learned trial court while dealing the defence of the accused/appellant regarding issuing the cheque to the friend of his deceased son, observed that accused/appellant stated in his defence evidence that a person namely Rajesh Kumar, friend of his deceased son approached him in the year 2012 and requested him to issue the cheque in question as same was required for applying for government tender. On the contra, accused/appellant stated in his examination u/s 313 Cr.P.C that the said Rajesh required the cheque in question for the purpose for giving the same to another person. Learned trial court further observed that accused/appellant has again taken different version in his complaint Ex PW 1/B made to the police wherein it is stated that he went for purchasing some vegetables to Manglapuri Subzi Mandi and lost cheque along with certain other documents kept in the envelope. In view of the aforesaid facts, learned trial court observed that the version of accused/appellant is in grave contradiction with the evidence of accused/appellant as DW1 and his statement u/s 313 Cr.P.C.
(ii) Learned trial court further observed that the complaint Ex DW 1/B made by the accused/appellant to the police does not bear any receiving of the police except the stamp nor it bears the date of receiving by the concerned police station. It is further observed that the said police Jagdish Prasad v. Rajesh Kumar Crl. Appeal No. 06/16 Page no. 6/22 complaint does not even find mention of the cheque in question or the name of payee or any other particulars therein. It is further observed that complaint Ex DW 1/A made by accused/appellant to his bank simply states that cheque no. 589025 has been lost by him and the said complaint does not mention the name of payee or any other particulars such as amount and date. Moreover, accused/appellant has also not examined the police officials in respect of his complaint Ex DW 1/B nor the bank officials in respect of intimation and stop payment instructions Ex DW 1/A.
(iii) Learned trial court while discrediting the testimony of DW2 Rajesh Kumar claiming friend of deceased son of accused/appellant, observed that DW2 stated in the course of his crossexamination that he had requested the accused for granting a loan of Rs. 7 lakhs from him for purchasing some plot which itself is in clear contradiction with the statement and testimony of the accused where accused stated that said Rajesh Kumar demanded the cheque merely for the purpose of security for giving it to someone or for applying for government contracts. It is further observed that DW2 stated that he went to accused for taking the cheque of loan amount which is also contrary to the testimony of accused as accused claimed to have lost the cheque in question Ex CW 1/1 when he was travelling to the house of DW2 Rajesh Kumar for Jagdish Prasad v. Rajesh Kumar Crl. Appeal No. 06/16 Page no. 7/22 handing over the same to him. It is further observed that it is highly inconceivable that when in the month of July, the accused was allegedly travelling for handing over the cheque in question Ex CW 1/1 to the said DW2 Rajesh Kumar as per his demand then the loss of said cheque would be disclosed by him to the said Rajesh Kumar only on 23.08.2012 and that too when he approached the accused for taking the cheque.
(iv) Learned trial court further observed that it is also surprising to see that throughout the entire evidence, the receipt of legal demand notice has been admitted by the accused however he had simplicitor preferred to file a police complaint dated 20.10.2012 Ex DW 1/C which was also undated and does not bear any receipt number or daily dairy number. Further more, the accused has also not even examined any witness from the police authority to prove the said letter Ex DW 1/C.
(v) Learned trial court in view of the aforesaid facts and circumstances observed that accused has failed to lead any plausible evidence on record to rebut the statutory presumption u/s 139 of the N.I. Act. It is further observed that he has also not been able to set a probable defence, therefore, all the ingredients of Section 138 N.I. Acts stands proved against the accused persons. Learned trial court while dealing the principle of preponderance of probability has also relied upon the law Jagdish Prasad v. Rajesh Kumar Crl. Appeal No. 06/16 Page no. 8/22 laid down in case titled as (i) Krishan Janardhan Bhatt Vs. Dattatraya G. Hegde (2008) 4 SCC 54 and (ii) Rangappa Vs. Shri Mohan AIR 2010 SC 1898.
8. I have heard Sh. Ranveer Singh Learned counsel for the appellant and Sh. S.K. Sangwan Learned counsel for respondent at length and have gone through the material on record.
9. After having gone through the rival submissions of both the parties, I find that there is one point of determination in the present appeal which is as under:
(a) Whether accused has rebutted the statutory presumption u/s 139 of the N.I. Act.
10. Before dealing the said aspect, it is relevant to refer the relevant provision of N.I. Act which is as under: Section 118. Presumptions as to negotiable instruments - Until the contrary is proved, the following presumptions shall be made
(a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
Section 139. Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability."
11. Bare perusal of the said provision of law, it is apparent that there is a Jagdish Prasad v. Rajesh Kumar Crl. Appeal No. 06/16 Page no. 9/22 legal presumption that cheque is issued for discharging an antecedent liability and the presumption can be rebutted only by the person who drew the cheque. The aforesaid presumption is in favour of holder of the cheque.
12. In the light of aforesaid statutory presumption u/s 139 of N.I. Act which is in favour of the complainant, now, it is to be examined by this court as to whether accused/appellant has raised a probable defence or able to rebut the said statutory presumption.
13. During the course of arguments, counsel for appellant/accused has raised several contentions by which he claimed that appellant/accused has rebutted the statutory presumption under Section 139 of the N.I. Act. In order to examine the said claim of the counsel for appellant/accused, I take up all the contentions raised by the counsel for appellant.
14. I take up the first and foremost contention of counsel of appellant is that learned trial has failed to appreciate the fact that no receipt or agreement has been placed by the respondent/complainant on record despite the fact of granting huge alleged loan amount of Rs. 7 lakhs to the appellant/ accused. The said argument is vehemently opposed by the counsel for respondent/complainant stating that since appellant/accused is friend of his brother Kapoor Singh since last many years, therefore, respondent/ Jagdish Prasad v. Rajesh Kumar Crl. Appeal No. 06/16 Page no. 10/22 complainant was also familiar with him. It is further submitted that in view of the said relationship between the parties, respondent/ complainant advanced a loan of Rs. 7 lakhs to the appellant/accused as he was in need of money to make the payment of plot in Palam. It is further submitted that since appellant/accused had issued the cheque in question after obtaining the said loan amount, therefore, there was no need for execution of any written agreement/ receipt.
15. After having gone through the submissions of both the parties, I am of the view that since there is a legal presumption u/s 139 of N.I. Act in favour of complainant that cheque is issued for discharging an antecedent liability, therefore, no adverse inference can be drawn against the complainant in the absence of written agreement/receipt.
16. Now coming on the second contention of the counsel for appellant/ accused regarding financial condition of the respondent/complainant. It is vehemently argued by counsel for appellant/accused that learned trial court has also failed to appreciate the fact of financial capacity of respondent/complainant. It is further submitted that since the complainant has failed to show his source of income to lend money to the accused, therefore, the version of the complainant cannot be relied upon. Counsel for appellant/accused in support of his arguments has Jagdish Prasad v. Rajesh Kumar Crl. Appeal No. 06/16 Page no. 11/22 relied upon law laid down in case titled K.Subramani Vs. K.Damadora Naido decided on 13.11.2014 by Hon'ble Supreme Court of India.
17. On the contra, counsel for respondent has submitted that respondent is having financial capacity to pay the loan amount of Rs. 7 lakhs to the appellant/accused in the year 2012. It is further submitted that complainant sold his plot in the year 2011 vide agreement dated 17.07.2011, therefore, he was having sale proceeds of the said plot.
18.After having gone through the arguments of both the parties and the evidence of complainant/respondent, I find that complainant/respondent has deposed in his evidence that he paid a sum of Rs. 7 lakhs to the accused as he was having the sale proceeds after selling his plot in the year 2011 vide agreement dated 17.07.2011 Mark A. It is to be note here that no suggestion was given by the appellant/accused to the complainant/respondent during his course of crossexamination with this effect that he was not having any sale proceed at time of giving the alleged loan to the appellant/accused, particularly after when he clearly deposed that he was having the sale proceeds of his plot. Even no witness of the said bayana agreement Mark A was summoned by the appellant/accused for discrediting the version of complainant/respondent regarding selling the plot in the year 2011. It is further to be note here Jagdish Prasad v. Rajesh Kumar Crl. Appeal No. 06/16 Page no. 12/22 that the citations relied upon by the appellant/accused i.e. K.Subramani's case (Supra) is not applicable upon the facts and circumstances of the present case as complainant/respondent has shown his financial position at the relevant time of payment of loan.
19. Now coming on the third contention of the counsel for appellant/ accused regarding not showing the loan amount in his income tax return. It is vehemently argued by the counsel for appellant/accused that respondent has not even placed any income tax return towards the extension of loan to the appellant. It is further submitted that if the amount is large and same is not repayable within few months then the failure to disclose the loan amount in the income tax return or book of accounts may rebut the presumption under Section 139 of the N.I. Act. Reliance has been placed upon the law laid down in case titled Sanjay Mishra Vs. Kanishka Kapoor decided by Hon'ble High Court of Bombay on 24.02.2009.
20. On the contra, counsel for complainant/respondent submitted that if the complainant has not shown the loan amount in her income tax return then the case of complainant cannot be thrown away.
21. After having gone through the rival submissions of both the parties, I am also of the view that case of the complainant cannot be thrown away Jagdish Prasad v. Rajesh Kumar Crl. Appeal No. 06/16 Page no. 13/22 merely on the ground that loan amount disbursed to accused is not shown in the income tax return and balance sheet of complainant. Reliance can be placed upon the law laid down in Lekh Raj Sharma Vs. Yashpal Sharma (Crl.lp) 567/2014. It is to be note here that the citations relied upon by the counsel for appellant/accused i.e. Sanjay Mishra's case (Supra) is not applicable upon the facts and circumstances of the present case. In the said referred case, the amount of Rs. 15 lakhs was involved and the said amount was unaccounted. In the present case, the loan amount is Rs. 7 lakhs which was to be paid for maximum period of six months. Further, in the present case, the loan amount was not unaccounted as the said amount was claimed to be sale proceeds of property sold by the complainant in the year 2011 vide agreement dated 17.07.2011 Mark A.
22. Now coming on the fourth contention of counsel for appellant/accused.
It is vehemently argued by counsel for appellant/accused that learned trial court has failed to appreciate the fact that appellant/accused is not known person to the complainant/respondent. It is further submitted that respondent has claimed that he paid the loan amount of Rs. 7 lakhs to the appellant/accused as he was the friend of his brother namely Kapoor Singh. In fact, appellant did not know the respondent or his brother and Jagdish Prasad v. Rajesh Kumar Crl. Appeal No. 06/16 Page no. 14/22 he had never taken any loan of Rs. 7 lakhs from the respondent/ complainant. It is further submitted that respondent/complainant has not summoned his brother Kapoor Singh for showing the fact that appellant/accused was his friend. In view of the aforesaid facts, no loan transaction is said to have taken place between the parties. It is further submitted that in view of the aforesaid facts and circumstances, appellant/accused cannot be held guilty for the offence u/s 138 of N.I. Act. Reliance has been placed upon the law laid down in case titled as Muthu Kumaran Vs. Peri Yasamy decided on 29 th March 2012 by Hon'ble High Court of Madras and Kamalamman Vs. Mohan decided on 18.07.2006 by Hon'ble High Court of Kerela.
23. On the contra, counsel for respondent/complainant submitted that appellant/accused was the friend of brother of respondent/complainant, therefore, he was also familiar with the appellant. It is further submitted that non examining of the brother of complainant does not mean that appellant/accused is not known to the respondent or his brother.
24. After having gone through the submissions of both the parties, I find that it is an admitted fact that appellant/accused has issued the cheque in question in the name of Rajesh Kumar (i.e. the name of complainant/respondent). Further appellant/accused has also not Jagdish Prasad v. Rajesh Kumar Crl. Appeal No. 06/16 Page no. 15/22 disputed the particulars of the cheque i.e. filling the amount in words and digits, date and signatures on the cheque. He raised only one contention that the said cheque was not issued to the complainant against discharging of any liability but the said cheque was issued to the person namely Rajesh Kumar, friend of his deceased son. In the light of the aforesaid facts, particularly the defence of the appellant/ accused, I am of the view that onus was upon the appellant/accused to rebut the presumption under Section 139 of N.I. Act. In order to examine the said fact I find that accused/appellant has raised three contentions in support of his defence.
i). He issued the cheque in question in the name of Rajesh Kumar, friend of his deceased son as same was to be applied for receiving government tender.
ii). The said cheque in question was lost by accused/appellant during his travel to the house of said Rajesh Kumar.
iii). He informed his bank on 20.07.2012 vide complaint Ex.DW1/A regarding loss of the cheque and for stopping the payment of the said cheque. A complaint was also made in this regard in PS Palam Village Ex.DW1/B.
25. It is to be note here that learned trial court, while dealing with the first contention of the accused/appellant, has observed that there is a Jagdish Prasad v. Rajesh Kumar Crl. Appeal No. 06/16 Page no. 16/22 material contradiction in the version of accused/appellantDW1 and Rajesh KumarDW2. Accused/appellant has claimed that he issued the cheque in question in the name of Rajesh KumarDW2, friend of his deceased son, as he required the same for obtaining government tender. Whereas, DW2Rajesh Kumar deposed that he requested the accused for granting loan of Rs. 7 Lacs for the purpose of purchasing the land. The said contradictions between the accused and his defence witness DW2 has disbelieved the version of complainant regarding issuing of cheque to Sh. Rajesh Kumar, friend of his deceased son.
26. Learned trial court, while dealing with the second contention of the accused/appellant observed that accused/appellant has claimed that he lost the cheque when he was going to the house of Rajesh KumarDW2. Whereas, he took different stand in the police complaint dt 20.07.2012 Ex.DW1/B stating that he lost the cheque in question alongwith certain documents kept in the envelope when he was going to Mangla Puri Subzi Mandi for purchasing the vegetables.
27. Learned trial court while dealing with the third contention observed that accused/appellant has failed to prove his complaints Ex.DW1/A and Ex.DW1/B regarding loss of the cheque in question as he has neither summoned the police official of PS Palam and Bank Official to prove that he intimated to the bank and the police about the fact of loss of the Jagdish Prasad v. Rajesh Kumar Crl. Appeal No. 06/16 Page no. 17/22 cheque in question. Learned trial court has also observed that the said police complaint also does not bear any date on the police stamp showing the fact that the same was received by the police on a particular day.
28. In view of the abovesaid facts and the finding of the learned trial court, I am of the considered view that learned trial court has correctly observed that accused/appellant has failed to prove the fact that he issued the cheque in question to the person namely Rajesh, friend of his deceased son or he lost the cheque in question. In the light of the abovesaid fact and the presumption u/s. 139 of the NI Act, it can be said that the cheque in question was issued by the accused/appellant to the complainant/ respondent.
29. Now coming on the fifth contention of counsel for appellant/accused regarding change of name of respondent/complainant. It is vehemently argued by the counsel for appellant/accused that learned trial has also failed to appreciate the fact that legal notice was sent by the respondent/ complainant in the name of Rajesh Singh Girsa and complainant case was filed in the name of Rajesh Kumar. It is further submitted that in view of the said change in name of complainant, the complaint case is not maintainable. Reliance has been placed upon the law laid down in Jagdish Prasad v. Rajesh Kumar Crl. Appeal No. 06/16 Page no. 18/22 case titled as M/s Laxmi Sriniwas Savings Vs. Bhoj Rajan decided on 6th September 2006 by Hon'ble High Court of Madras.
30. On the contra, it is vehemently argued by counsel for respondent/ complainant that particulars of the complaint mentioned in legal notice dated 18.10.2012 Ex CW 1/3 and the particulars mentioned in the complaint like name, parentage and address of the complainant are the same, therefore, the said arguments of counsel for appellant/accused is not tenable.
31.After having gone through the submissions of both the parties and perusal of the record, I find that particulars mentioned in the legal notice Ex CW 1/3 and particulars mentioned in the complaint shows that complainant is the same person who sent legal notice and instituted the present complaint case. Simply mentioning the sir name of complainant i.e. Girsa in his legal notice does not make any difference. The citation M/s Laxmi Sriniwas Savings's (Supra) is not applicable upon the facts and circumstances as the present complaint has been filed by the same person.
32. Now coming on the sixth contention of counsel for appellant/accused.
It is vehemently argued by the counsel for appellant/accused that learned M.M has failed to appreciate the fact that as per the guidelines of RBI no Jagdish Prasad v. Rajesh Kumar Crl. Appeal No. 06/16 Page no. 19/22 amount in excess of Rs. 20,000/ shall be paid or receive by anyone in cash.
33. On the contra, it is submitted by the counsel for respondent/complainant that there is no such guideline of the RBI which may caste duty upon the person giving the loan by way of cheque.
34. After having gone through the submissions of both the parties and perusal of the record, I find that no guidelines of RBI has been filed by the appellant on record for showing the fact that loan exceeding Rs. 20,000/ must be paid by way of cheque only. In the absence of the said fact, no adverse inference can be drawn against the complainant/ respondent.
35.Now coming on the seventh contention of counsel for appellant/accused.
It is vehemently argued by the counsel for appellant/accused that as per the complainant/respondent, the amount of Rs. 7 lakhs was borrowed by the appellant/accused for a period of six months on an interest @ 24% per annum, but the cheque in question is dated 23.08.2012 (four months of issuance) which creates doubt about the loan transaction. It is further submitted that the complainant/respondent has claimed that the said amount of Rs.7,00,000/ was to be paid with interest @24% per annum and the interest of the alleged loan amount was Rs.56,000/ (for four months) which has not been claimed in the present case. The said fact Jagdish Prasad v. Rajesh Kumar Crl. Appeal No. 06/16 Page no. 20/22 also creates doubt over the complaint case.
36. On the contra, it is submitted by the counsel for respondent/ complainant that the present complaint was filed for recovery of cheque amount whereas civil suit filed by the respondent/complainant pending before the court of Sh. Bhupesh Kumar, the then Learned ADJ, Dwarka Courts is for entire amount i.e. principal amount and the interest.
37. After having gone through the submissions of both the parties and perusal of the record, I find that since complainant/respondent has already filed two separate proceedings i.e. present complaint case u/s 138 N.I. Act for recovery of cheque amount and civil suit for recovery of loan amount along with interest, therefore, there is no ambiguity regarding not claiming the interest on the loan amount of Rs. 7 lakhs in the present complaint case. The said contentions of counsel for appellant/accused is devoid of merit.
38. In view of the said discussions, it is apparent that accused could not rebut the statutory presumption under Section 139 of Negotiable Instruments Act.
39. To sum up, in view of the above discussion, it is found that accused has been rightly and lawfully convicted for the offence punishable u/s 138 of Negotiable Instrument Act. Sentence awarded to appellant/accused i.e., simple imprisonment for a period of six months and direction to pay a Jagdish Prasad v. Rajesh Kumar Crl. Appeal No. 06/16 Page no. 21/22 compensation of Rs. 7,00,000/ to the complainant/respondent, in default of payment of said compensation, he shall further undergo SI for three months, is in accordance with the law. Appeal is without merit, accordingly, same is dismissed. Appellant/accused be taken into custody. His bail bond furnished u/s 389(1) Cr.P.C is hereby cancelled. His surety is discharged. Bail Bond u/s 437A Cr.P.C already furnished and accepted, shall remain in force for the statutory period of six months. Appeal file be consigned to record room. Trial court record be sent back along with the copy of this judgment.
Pronounced in the open court (R.L. Meena)
th
On 11 January 2018 Additional Sessions Judge02
Dwarka courts, New Delhi
Jagdish Prasad v. Rajesh Kumar
Crl. Appeal No. 06/16 Page no. 22/22