Delhi District Court
Jitender Singhal vs Mukesh Gupta on 7 June, 2024
IN THE COURT OF SH. AKASH JAIN
ADDITIONAL SESSIONS JUDGE-04
EAST DISTRICT, KARKARDOOMA COURTS: DELHI
CNR No. DLET01-008572-2023
CA No:- 99/2023
Jitender Singhal
S/o Late Om Prakash Singhal
R/o A-305, GD Colony
Mayur Vihar Phase-I, Delhi
...... Appellant
Versus
Mukesh Gupta
S/o Sh. Chander Prakash Gupta
R/o H. No. E-1, Ganesh Nagar
Pandav Nagar Complex, Delhi-92
...... Respondent
Date of Institution : 01.07.2023
Date of reserving Order : 30.04.2024
Date of pronouncement : 07.06.2024
JUDGMENT
1. By way of the present appeal under Section 374 of The Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C'), the appellant has assailed the impugned judgment of conviction dated 20.04.2023 and order on sentence dated 25.04.2023 passed by the Court of Ld. MM (Mahilla Court-01), East District, Karkardooma Court in complaint case No. 4567/2019, titled as Mukesh Gupta v. Jitender Singhal, whereby appellant/ accused was convicted for the offence under Section AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.06.07 16:47:25 +0530 CA No:- 99/2023 Jitender Singhal v. Mukesh Gupta Page No. 1 of 15 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') and was sentenced to undergo simple imprisonment for a period of 06 months and to pay Rs. 3,30,000/- as compensation to the complainant. In default of payment of compensation, the appellant/ convict was further directed to undergo simple imprisonment for a period of 06 months.
2. For the sake of convenience, I shall be referring to the parties as per their nomenclature before the Ld. Trial Court and therefore, the appellant shall be referred to as 'accused' and respondent shall be referred to as 'complainant'.
3. Briefly stated, the facts of the present case as per complainant are that both complainant and accused were well known to each other for last several years. It was averred that in the first week of February, 2019, accused approached the complainant and requested for a sum of Rs.2,20,000/- for the purpose of marriage of his niece namely Shruti, which was fixed on 09.02.2019. In lieu of request made by the accused, the complainant handed over a sum of Rs. 2,20,000/- to the accused by way of cash and the same was to be returned by the accused within 06 months i.e. on or before August, 2019. It was averred that after expiry of 06 months, complainant contacted the accused and demanded his money back, on which accused in discharge of his legal liability issued a cheque bearing no. 886274 dated 24.09.2019 for an amount of Rs.2,20,000/- drawn on IDBI Bank, Raj Nagar Branch, Ghaziabad, UP in favour of the complainant. The complainant presented the said cheque for encashment, however, same was returned unpaid with endorsement "Funds Insufficient" vide cheque return memo dated 26.09.2019. The AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.06.07 16:47:33 +0530 CA No:- 99/2023 Jitender Singhal v. Mukesh Gupta Page No. 2 of 15 complainant thereafter, sent legal demand notice dated 05.10.2019 to the accused by registered post calling upon him to pay the amount of the cheque within 15 days of receipt of the notice. The accused though did not pay the cheque amount despite receipt of the legal notice. Hence, complaint in question bearing no. 4567/2019 was filed by the complainant against the accused for commission of offence under Section 138 of NI Act before the Court of Ld. MM, East District, Karkardooma Courts, Delhi on 04.11.2019.
4. After recording pre summoning evidence, Ld. Trial Court summoned the accused for offence under Section 138 of NI Act. The accused duly appeared before the Court and notice under Section 251 Cr.P.C. was also served upon him to which he pleaded not guilty and claimed trial. In his plea of defence, the accused admitted that the cheque in question belonged to him and bore his his signatures. However, he stated that he did not fill the remaining contents in the cheque in question. He further stated that he did not receive legal demand notice in question. He also stated that he had taken the shop on rent from one Gothwal Ji through the complainant in year 2018 and at that time he had given his blank signed cheque in question to the complainant for the payment of rent. However, later he paid rent for three months to the complainant in cash and after that he paid rent in cash to said Gothwal Ji. Accused further stated that when he asked the complainant to return his cheque in question, he did not return the same and rather misused it by filing the present complaint case.
5. During the course of trial, complainant got examined himself as CW-1 and proved his affidavit in evidence, cheque in AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.06.07 16:47:39 +0530 CA No:- 99/2023 Jitender Singhal v. Mukesh Gupta Page No. 3 of 15 question dated 24.09.2019, returning memo dated 26.09.2019, legal notice in question dated 05.10.2019, postal receipt of speed post dated 05.10.2019 and internet generated tracking report. Complainant got duly cross-examined by Ld. Counsel for accused and thereafter, closed his evidence on 02.02.2023.
6. Statement of accused was consequently, recorded under Section 313 Cr.P.C whereby the accused denied the incriminating evidence regarding friendly loan allegedly taken by him from the complainant. The accused further denied issuance of cheque in question in favour of the complainant in discharge of his legal liability on 24.09.2019. While, admitting the factum of dishonour of cheque in question, accused denied the receipt of legal demand notice. The accused further stated that he took a shop at D-1 Ganesh Nagar on rent through complainant and had to pay rent of Rs.17,000/- in advance and Rs. 17,000/- as security to the owner of the shop. He also had to pay Rs. 17,000/- to the complainant as commission. Since, he was not having Rs. 51,000/- at that time, he gave blank signed cheque in question to the complainant which was later on misused by the complainant. Accused further stated that during the period from December, 2018 to January, 2019, an agreement was executed between him and the owner of the shop and on the day of execution of said agreement, he withdrew money from his bank account and paid sum of Rs. 51,000/- to the complainant in cash in the presence of Mr. Gothwal i.e. owner of the shop. Accused further stated that when he asked complainant to return his cheque, he made excuse that he had not brought the cheque at that time and would return the same to him later. However, the complainant never returned the cheque in question to him and thus, he has no liability towards the AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.06.07 16:47:47 +0530 CA No:- 99/2023 Jitender Singhal v. Mukesh Gupta Page No. 4 of 15 complainant in respect of cheque in question.
7. Despite opportunity granted by the Court, accused failed to lead any defence evidence and in lieu of his separate statement recorded on 25.02.2023, defence evidence stood closed and the matter proceeded for final arguments.
8. After hearing the final arguments and appreciating the evidence on record, the accused was convicted by the Court of Ld. MM, East District, Karkardooma Courts, Delhi by way of impugned judgment dated 20.04.2023. The relevant excerpts of the judgment are reproduced as under:-
"..... 15. Looking closely at the testimonies and documents on record, it is the considered opinion of this court that the accused has failed to discharge his initial burden of proof as the accused has failed to lead any evidence in his defence. In the cross-examination of complainant as well, the accused has failed to dislodge the case of the complaint. The accused has not furnished any evidence, documentary or oral, which would show to this court that the averments made by the accused pertaining to one Mr. Gothwal Ji holds any truth. It was incumbent upon the accused to bring such evidence before this court which could show to this court that the defence taken by the accused is not a mere possibility but is reasonably probable defence. Further, the plea of defence taken by the accused at the stage of framing of notice of accusation u/s 251 Cr.P.C. and the plea of defence taken by the accused at the stage of recording of his statement u/s 313 Cr.P.C. shows remarkable differences. In his statement u/s 313 Cr.P.C., the accused has stated that he entered into an agreement with the owner of the shop at D- 1, Ganesh Nagar in December, 2018 to January, 2019 and he had paid cash of Rs. 51,000/- to the complainant in the presence of Mr. Gothwal Ji on the day of the execution of said agreement after withdrawing money from his IDBI Bank account. However, the accused had willfully chosen not to lead DE. The statement of the accused u/s 313 Cr.P.C. cannot suffice for leading of evidence as the same has no probative value. The accused has also not confronted the complainant with any document such as agreement or AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.06.07 16:47:53 +0530 CA No:- 99/2023 Jitender Singhal v. Mukesh Gupta Page No. 5 of 15 withdraw slip of IDBI bank, during the cross-examination of the complainant. Therefore, in light of successive failures on part of the accused to bring any evidence on record which could justify his version of the facts, it is the considered opinion of this Court that the accused has failed to probabilize his defence. Therefore, accused Jitender Singhal S/o Late Om Prakash Singhal stands convicted of the offence punishable u/s 138 NI Act. Let the convict be heard on the point of sentencing...."
9. Further, the operative portion of order on sentence dated 25.04.2023 reads as under:-
".... Considering the totality of circumstances, convict is sentenced to simple imprisonment for 06 months and is further ordered to pay the amount of Rs.3,30,000/- to the complainant U/s 357(3) Cr.P.C.. In default of the said payment of compensation, the convict shall undergo further simple imprisonment for 06 months...."
10. Aggrieved by the impugned judgment and order on sentence as above, the accused has assailed his conviction on inter- alia following grounds:-
(i) That the impugned judgment passed by Ld. Trial Court was arbitrary and based on conjectures and surmises;
(ii) That Ld. Trial Court erred in not considering that there was no legally enforceable debt or liability in favour of the complainant and against the accused;
(iii) That Ld. Trial Court did not consider that the complainant failed to provide any date of alleged loan in his complaint or during his cross-
examination;
(iv) That Ld. Trial Court failed to appreciate that the cheque in question was given by accused in blank signed form as security to the complainant, which was later on misused by him;
(v) That Ld. Trial Court failed to appreciate that legal demand notice dated 05.10.2019 was never served AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.06.07 16:47:59 +0530 CA No:- 99/2023 Jitender Singhal v. Mukesh Gupta Page No. 6 of 15 upon the accused, hence, the offence under Section 138 of NI Act was never completed.
11. The respondent filed a reply to the present appeal and submitted that Ld. Trial Court passed comprehensive judgment covering each and every aspect of the defence of the accused. It was further submitted that the judgment of conviction was passed by Ld. Trial Court after thoroughly examining the evidence on record and there is no illegality or impropriety in the impugned judgment. It was stated that the contention of the accused that the cheque in question was a security cheque allegedly misused by the complainant does not find support from any material available on record and accused further failed to rebut statutory presumption raised against him under Section 139 of NI Act.
12. I have heard the arguments on behalf of both the parties and carefully perused the record.
13. At the outset, the factum of cheque in question being signed by the accused and drawn on his bank account is not in dispute. A defence is though raised on behalf of accused that besides signatures, the other details in the cheque were not filled by him. To this effect, judgment of Hon'ble Supreme Court of India in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197 is worth consideration wherein it was observed as under:-
".... 33. A meaningful reading of the provisions of the Negotiable Instrument Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.06.07 16:48:05 +0530 CA No:- 99/2023 Jitender Singhal v. Mukesh Gupta Page No. 7 of 15 the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.
34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
35. It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative.
36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt...."
(Emphasis supplied)
14. In the case of Rangappa v. Sri Mohan, (2010) 11 SC, a three Judge Bench of Hon'ble Supreme Court observed that if an accused in a complaint under Section 138 of NI Act admits his/ her signature on the cheque, presumption that the cheque pertains to a legally enforceable debt or liability arises under Section 138 of NI Act. No doubt, such presumption is rebuttable in nature, however, the onus is on the accused to raise a probable defence. The law on this proposition is now well settled, for which it is apt to refer to the judgment of Basalingappa v. Mudibasappa, (2019) 5 SCC 418, wherein Hon'ble Apex Court was pleased to hold as under:-
Digitally signed by AKASH JAIN AKASH Date:
JAIN 2024.06.07
16:48:11
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CA No:- 99/2023 Jitender Singhal v. Mukesh Gupta Page No. 8 of 15
".... 25 We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:-
25.1 Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2 The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3 To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
25.4 That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5 It is not necessary for the accused to come in the witness box to support his defence...."
(Emphasis supplied)
15. Thus, the onus is upon the accused to raise a probable defence and standard of proof for raising such defence is "preponderance of probabilities". The accused is though required to bring some material or to demonstrate defects in the case of complainant. Mere bald and unsubstantiated assertions would not be sufficient to disprove the statutory presumptions. Thus, accused is obliged to set up a probable defence and it cannot be premised on the mere ipse dixit of the accused.
16. The primary defence taken by the accused in the present case is that the cheque in question was a security cheque given by him to the complainant in the year 2018 at the time of taking a shop on rent from one Gothwal Ji through the complainant. It was argued on behalf of accused that the accused AKASH Digitally AKASH JAIN signed by JAIN Date: 2024.06.07 16:48:16 +0530 CA No:- 99/2023 Jitender Singhal v. Mukesh Gupta Page No. 9 of 15 had given blank signed cheque in question to the complainant for payment of rent to the owner of the shop, however, when the accused made the payment of rent for three months to the complainant in cash, the complainant failed to return the cheque in question to accused despite his request. It was argued that later on the said cheque in question was misused by complainant in the present complaint.
17. A careful perusal of the record though shows that the accused had taken mutually contradictory pleas in his statement under Section 251 Cr.P.C. and statement under Section 313 Cr.P.C. While in his plea of defence recorded under Section 251 Cr.P.C. accused stated that he had given blank signed cheque in question to the complainant for payment of rent, in his statement recorded under Section 313 Cr.P.C. accused stated that the blank signed cheque in question was given by him to the complainant in lieu of advance rent amount, security amount as well as commission to be given to the complainant. The factum of alleged execution of agreement between accused and owner of the shop was not mentioned anywhere by the accused in his plea of defence under Section 251 Cr.P.C..
18. While, it was claimed by the accused in his plea of defence at the time of framing of notice that the blank signed cheque was given by him to the complainant for payment of rent, during cross-examination of complainant, a contradictory suggestion was put to the witness by Ld. Counsel for accused that the blank signed cheque was infact given to the complainant in respect of commission qua shop rented by the accused.
AKASH Digitally signed
by AKASH JAIN
JAIN Date: 2024.06.07
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19. It is the case of accused that during the period from December, 2018 to January, 2019, an agreement was executed between accused and owner of the shop Mr. Gothwal and on the day of execution of said agreement, accused withdrew money from his bank account and paid Rs. 51,000/- in cash to the complainant in presence of Mr. Gothwal. It is further the case of accused that when accused asked the complainant to return his alleged blank cheque in question, the complainant made an excuse and asked him that he would return the same to him later on. The accused though failed to examine Mr. Gothwal in support of his defence regarding execution of the agreement, payment of rent and demand of blank signed cheque from the complainant in his presence. The accused further failed to examine himself or a bank witness to prove his statement of bank account in respect of withdrawal of Rs. 51,000/- during the relevant period of December, 2018 to January, 2019. The accused further failed to confront complainant with the agreement in question alleged to have been executed between accused and owner of the shop.
20. It remains unexplained that when Rs. 51,000/- was allegedly paid by the accused to the complainant in cash during December, 2018 to January, 2019 and complainant failed to return the blank cheque in question to the accused despite his request, why did he kept mum and did not take any appropriate action against the complainant. Nothing cogent is further brought on record by the accused to show the efforts made by him, either by filing any complaint before the concerned bank to invalidate the said cheque or before any other competent authority, when complainant allegedly failed to hand over cheque in question to him despite several requests. In the case of Suresh Chandra Goyal AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.06.07 16:48:28 +0530 CA No:- 99/2023 Jitender Singhal v. Mukesh Gupta Page No. 11 of 15 v. Amit Singhal, Crl. Appeal No. 601/2015 decided on 14.05.2015, Hon'ble Delhi High Court was pleased to hold that mere defence taken by the accused that cheque was given as security is not enough to absolve him.
21. Thus, the contention of accused that cheque in question was a security cheque, in the absence of any cogent material on record, is without any merit and consequence.
22. With respect to another contention of accused that Ld. Trial Court did not consider that the complainant failed to provide any date of alleged loan in his complaint or during his cross- examination, it may be noted that accused himself also nowhere disclosed the exact dates of taking the shop on rent, giving the alleged blank signed cheque to the complainant or making the alleged payment of rent by way of cash at later stage to the complainant. Even otherwise, mere non mention of date of grant of loan by the complainant to the accused is not fatal to his case in lieu of statutory presumption already raised against the accused under Section 118 and 139 of NI Act which could not be rebutted by him.
23. It was lastly contended on behalf of accused that legal demand notice dated 05.10.2019 was never served upon the accused, hence, the offence under Section 138 of NI Act was never completed. It was argued that the address of accused as mentioned in the complaint as well as legal demand notice was House No. A- 30, Durga Park, Dallupura, Delhi-96. However, accused was residing at A-305, G. D. Colony, Mayur Vihar, Phase-I, Delhi and AKASH Digitally signed by AKASH JAIN Date: 2024.06.07 JAIN 16:48:34 +0530 CA No:- 99/2023 Jitender Singhal v. Mukesh Gupta Page No. 12 of 15 never received the said legal demand notice. Thus, the offence under Section 138 of NI Act is not made out as service of legal demand notice upon the accused is one of the essential ingredient of the said offence.
24. Perusal of the record shows that the bail bond and surety bond furnished on behalf of the accused and his surety i.e. his wife Ms. Sweety Singhal reflects their residential address as House No. A-30, Durga Park, Dallupura, Delhi-96. Moreover, copy of aadhar card of surety/ wife of accused also reflects their residential address as above. It is pertinent to note that legal demand notice Ex CW 1/C dated 05.10.2019 was duly sent on the aforesaid address by the complainant to the accused by way of registered post, receipt of which is duly proved vide Ex. CW 1/D and Ex. CW 1/E i.e. tracking report. Therefore, a presumption of due service is clearly drawn under Section 27 of General Clauses Act, 1897 which provides that where a notice is sent by registered post to the correct address of a party, the same shall be presumed to have been duly served. Further, Hon'ble Supreme Court in the case of C. C. Alavi Hazi v. Palapetty Muhammad & Anr., (2007) 6 SCC 555 was pleased to hold as under:-
".... Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.06.07 16:48:40 +0530 CA No:- 99/2023 Jitender Singhal v. Mukesh Gupta Page No. 13 of 15 Section 27 of the G.C. Act and Section 114 of the Evidence Act...."
25. Thus, the contention of accused that the legal demand notice dated 05.10.2019 was not served upon him is without any merit.
26. In view of the foregoing discussion, I do not find any merit or substance in the present appeal. The accused has failed to establish any infirmity in the impugned judgment passed by Ld. Trial Court and therefore, I do not find any reason to set-aside the same.
27. As regards sentence, I am of the view that Ld. Trial Court had already shown sufficient leniency by awarding compensation to the tune of Rs.3,30,000/- in respect of cheque for the sum of Rs.2,20,000/- when it could have awarded compensation to the extent of double the cheque amount. Moreover, the substantive sentence is also found to be on lower side and during the course of arguments, no reason whatsoever could be assigned as to why the sentence should be further reduced.
28. Accordingly, order on sentence is also hereby maintained and convict Jitender Singhal is directed to undergo simple imprisonment for a period of 06 months and is ordered to pay compensation to the tune of Rs.3,30,000/- to the complainant. He is granted time of one month to pay the aforesaid payment of compensation and in default therewith, he shall undergo further simple imprisonment for a period of 06 months. AKASH Digitally signed by AKASH JAIN Date: JAIN 2024.06.07 16:48:46 +0530 CA No:- 99/2023 Jitender Singhal v. Mukesh Gupta Page No. 14 of 15
29. Appeal stands disposed of accordingly. Appellant be taken into custody to serve the sentence and be sent to jail under appropriate warrants.
30. Copy of this judgment along with Trial Court record be sent to the Ld. Trial Court for information. A copy of the judgment be supplied to appellant free of cost.
31. File of criminal appeal be consigned to record room after due compliance.
Digitally
signed by
AKASH AKASH JAIN
Date:
JAIN 2024.06.07
16:48:54
+0530
ANNOUNCED IN OPEN (AKASH JAIN)
COURT ON 07.06.2024 ASJ-04, EAST DISTRICT
KARKARDOOMA COURTS
DELHI
This judgment contains 15 pages and each paper is signed by me.
Digitally
signed by
AKASH AKASH JAIN
Date:
JAIN 2024.06.07
16:49:00
+0530
(AKASH JAIN)
ASJ-04, EAST DISTRICT
KARKARDOOMA COURTS
DELHI
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