Delhi District Court
Tarique Khan vs Parmod Kumar on 14 November, 2024
IN THE COURT OF SH. LOVLEEN, ADDITIONAL SESSIONS
JUDGE-03, SAKET COURTS, NEW DELHI
DLSE010125962023
CRL. APPEAL No. 385/2023
TARIQUE KHAN
Proprietor TK Granites and Mines
C-229, DDA Flats, Jasola
New Delhi-110025.
....Appellant
VERSUS
PRAMOD KUMAR
R/o 19, Masigarh,
Sukhdev Vihar,
New Delhi-110025
...Respondent
Date of institution : 11.12.2023
Date of Reserving judgment : 24.10.2024
Date of Pronouncement : 14.11.2024
Decision : Disposed of.
Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 1/23
JUDGMENT
1. This is an appeal under section 374 Cr.PC preferred by the appellant against the judgment dated 01.08.2022 and order on sentence dated 18.08.2022 passed by Court of Ld. Metropolitan Magistrate (N.I. Act), Digital Court-01, South-East District, whereby the appellant / accused was convicted of the offence punishable under Section 138 NI Act in CT No. 826/2020 titled as Parmod Kumar Vs. Tarique Khan and sentenced him to simple imprisonment for six months and a fine of Rs.58,00,000/- all of which is payable to the respondent / complainant as compensation within two months from the date of sentence. In default, the appellant is liable to undergo simple imprisonment for three months. For the sake of convenience, the appellant herein shall be referred to as 'accused' and the respondent herein shall be referred to as 'complainant'.
BRIEF FACTS
2. The facts of the case have been correctly noted by the Ld. Trial Court in its impugned judgment. The relevant paragraphs are reproduced hereinafter for ready reference:-
"2. The case of the complainant in a nutshell is that the accused and the complainant were on friendly terms and in August, 2017, the accused approached the complainant to discuss his financial problems relating to his business and asked for a friendly loan of Rs.1,00,00,000/- (One crore) for investing in his business. Consequently, a loan agreement dated 11.09.2017 was signed between them. It is further the case of the complainant that again in the year 2019, the accused requested the complainant for another friendly loan of Rs.50,00,000/- (Fifty lakhs) therefore, Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 2/23 they again executed another loan agreement dated 24.01.2019 in continuation of abovesaid 1st loan agreement dated 11.09.2017. In order to discharge his liability, the accused had issued two cheques i.e. cheque bearing No.647559 dated 20.08.2020 for a sum of Rs.20,00,000/- (Twenty lakhs) and cheque No.647560 dated 24.08.2020 for a sum of Rs.25,00,000/- (Twenty five lakhs), both drawn on SBI, Khajuraho, Chatarpur, MP (hereinafter referred to as 'impugned cheques') in favour of the complainant.
3. The complainant alleged that upon presentation of the said cheques to his bank, the impugned cheques got dishonoured vide return memos dated 26.08.2020 and 30.09.2020 respectively with the same remarks "refer to drawer". This constrained the complainant to send a legal demand notice to the accused dated 10.10.2020 and corrigendum of the legal demand notice dated 09.11.2020, which went unheeded. Hence, on payment of the cheque amount by the accused within 15 days of service of the legal notice, the present complaint came to be filed seeking prosecution of the accused of the offence punishable u/s 138/142 NI Act."
TRIAL
3. Vide order dated 08.02.2021, the Ld. Metropolitan Magistrate summoned the accused to face trial u/s 138 NI Act. On 26.02.2022, a notice u/s 251 Cr.P.C. was framed upon the accused wherein he admitted his signatures on the cheques and that he filled the particulars in the cheques. He also admitted receipt of demand notice from the complainant. However, in defence, he submitted that:-
"I do not have any liability towards the complainant. I had Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 3/23 given five cheques to the complainant as security including the two cheques of the present case in lieu of the loan given to me by the complainant. I admit that I have received Rs. 70 lakh from 13 bank account of other persons which were arranged by the complainant and paid to me on the instructions of the complainant. The said amount of Rs. 70 lakhs was given to me in relation to the loan agreement executed between me and the complainant. I have returned certain amount to the complainant in respect of the cheques in question."
(Emphasis supplied)
4. The complainant examined himself as CW-1 in support of his allegations against the accused in this case. Statement of accused was recorded u/s 313 Cr.P.C. In defence, the accused examined himself as DW-1. Upon the conclusion of trial, accused was convicted for the commission of offence punishable u/s 138 NI Act vide judgment dated 01.08.2022.
GROUNDS OF APPEAL
5. The grounds cited by the accused against the impugned judgement are as under :
A). Because the impugned judgment and impugned order on sentence are neither maintainable on facts nor on legal aspect. Thus, the impugned judgment and impugned sentence are liable to be set aside and appellant is entitled to compensation for undue hardship and frivolous complaint's trial; B). Because the impugned judgment and impugned order on sentence suffer from material factual and legal misconceptions and such misconception has given rise to the impugned judgement and impugned sentence, Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 4/23 which would have never been caused if the facts and legal aspects were appreciated diligently; C). Because the Ld. Trial Court has failed to apply its mind and come to a conclusion in favour of the Respondent, whereas the cross examination of the CW-1, comes to a different conclusion;
D). Because the Ld. Trial Court has failed to appreciate various aspects of the case, alongwith the pin pointing of lacuna by the Appellant that the legal notice was barred by the time limitation as it was sent around/after 50 days while it should be sent within 30 days as per the directions of section 138 NI Act neither it was proved by the Bank;
E). Because the Ld. Trial Court read and considered such documents while pronouncing judgment, which did not merit attention of the Ld. Trial Court; F). Because as per S. 103 of Indian Evidence Act, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 of Indian Evidence Act provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of S. 103 of Indian Evidence Act amplifies the general rule of S. 101 of Indian Evidence Act that the burden of proof lies on the person who Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 5/23 asserts the affirmative of the facts in issue; G). Because the Ld. Trial Court has failed to consider the material contradictions and confrontations in the testimony of CW.
H). That the judgment and order is based on surmises and conjectures.
I). That appellant craves leaves of this Hon'ble court to refer and rely on additional grounds at the time of final arguments. X. That the present appeal could not filed within 30 days of pronouncement of the impugned judgment i.e. within limitation, no such or similar appeal or petition has been filed by the Appellant against impugned sentence dated 18.08.2022. It is pertinent to mention here that the Appellant was assured by his lawyer namely Mr. Yasir Arafat that Appeal is filed and the Appellant was regularly paying his fees, the last online transaction was done on 21.07.2023 by the Appellant.
J). That the trial of the complainant case was concluded, and the present Appeal arises within the territorial jurisdiction of this Hon'ble Court and there is no impediment in granting the relief prayed by the Appellant.
6. It is prayed that the judgment dated 01.08.2022 and and the order on sentence dated 18.08.2022 may be set aside. Reliance is place upon the observations made by Hon'ble Supreme Court of India in Basalingappa Vs. Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 6/23 Mudibasappa Crl. Appeal No. 636/2019 (arising out of SLP (Crl) No. 8641/2018); Vijay Vs. Laxman & Anr. Criminal in Rangappa Vs. Sri Mohan Crl. Appeal No. 1020/2010 (Arising out of SLP (Crl) No. 407 of 2006); K Subramani Vs. K Damodara Naidu Crl. Appeal No. 2402/2014 (arising out of Slp (Crl). No. 6197/2014), John K Abraham Vs. Simon C Abraham & Anr Crl. Appeal No. 2043/2013 (SLP (Crl.) No. 9505 of 2011); Shri Bhagwan Yadav Vs. Adarsh Khandelwal Crl. L.P. 392/2024; Krishan Bidhrui Vs. Kalyan Singh Crl. L.P. 221/2017 ; Bijender Sharma Vs. Anil Sabharwal Cr. Rev. P 388/2017; Mahdoom Bawa Vs. Bahruddin Noorul Vs. Kaveri Plastics Crl. MC 2164/2022 & Crl.M.A 9155/2022; Smt. G.N. Rashmi Vs. Sri Suresh N.G. dated 23.04.2021 passed the Court of Metropolitan Magistrate Bengaluru City.
SUBMISSIONS OF COMPLAINANT/ RESPONDENT
7. On the other hand, Ld. Counsel for the complainant has argued that the accused has been correctly convicted by the Trial Court and an appropriate sentence has been imposed upon him. He prays for dismissal of the appeal.
DISCUSSION
8. This Court has considered the oral submissions as well as the records.
9. Recently, the Hon'ble Supreme Court was pleased to define the contours of the law relating to the provision u/s 138 of Negotiable Instruments Act in Rajesh Jain Vs. Ajay Singh 2023 INSC 888. The relevant extracts of the observations are reproduced below for ready reference:-
Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 7/23 Section 138 of the NI Act - Necessary Ingredients
25. Essentially, in all trials concerning dishonour of cheque, the courts are called upon to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act.
26. In Gimpex Private Limited vs. Manoj Goel (2022) 11 SCC 705 , this Court has unpacked the ingredients forming the basis of the offence under Section 138 of the NI Act in the following structure:
(1) The drawing of a cheque by person on do account maintained by him with the banker for the payment of any amount of money to another from that account;
(i) The cheque being drawn for the discharge in whole or in part of any debt or other liability;
(iii) Presentation of the cheque to the bank arranged to be paid from that account,
(iv) The return of the cheque by the drawee bank as unpaid either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount
(v) A notice by the payee or the holder in due course making a demand for the payment of the amount to the drawer of the cheque within 30 days of the receipt of information from the bank in Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 8/23 regard to the return of the cheque; and
(vi) The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days of the receipt of the notice.
27. In K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7 SCC 510 this Court had summarised the constituent elements of the offence in fairly similar terms by holding:
"14. The offence Under Section 138 of the Act can be completed only with the concatenation of a number of acts.The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (3) failure of the drawer to make payment within 15 days of the receipt of the notice."
28. The five (5) acts as set out in K Bhaskaran's case (supra) are, generally speaking, matters of record and would be available in the form of documentary evidence as early as, at the stage of filing the complaint and initiating prosecution. Apart from the above acts, it is also to be proved that cheque was issued in discharge of a debt or liability (Ingredient no. (ii) in Gimpex's case). The burden of proving this fact, like the other facts, would have ordinarily fallen upon the complainant. However, through the introduction of a presumptive device in Section 139 of the NI Act, the Parliament has sought to overcome the Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 9/23 general norm as stated in Section 102 of the Evidence Act and has, thereby fixed the onus of proving the same on the accused. Section 139, in that sense, is an example of a reverse onus clause and requires the accused to prove the non-existence of the presumed fact, i.e., that cheque was not issued in discharge of a debt/liability.
Burden of Proof and Presumptions: Conceptual Underpinnings
29. There are two senses in which the phrase 'burden of proof' is used in the Indian Evidence Act, 1872 (Evidence Act, hereinafter). One is the burden of proof arising as a matter of pleading and the other is the one which deals with the question as to who has first to prove a particular fact. The former is called the 'legal burden' and it never shifts, the latter is called the 'evidential burden' and it shifts from one side to the other. [See Kundanlal v. Custodian Evacuee Property (AIR 1961 SC 1316)]
30. The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party's case. If, at the conclusion of the trial a party has failed to establish these to the appropriate standards, he would lose to stand. The incidence of the burden is usually clear from the pleadings and usually, it is incumbent on the plaintiff or complainant to prove what he pleaded or contends. On the other hand, the evidential burden may shift from one party to another as the trial progresses according Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 10/23 to the balance of evidence given at any particular stage; the burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be is adduced by either side (See Halsbury's Laws of England, 4th Edition para 13). While the former, the legal burden arising on the pleadings is mentioned in Section 101 of the Evidence Act, the latter, the evidential burden, is referred to in Section 102 thereof. [G.Vasu V. Syed Yaseen (AIR 1987 AP139) affirmed in Bharat Barrel Vs. Amin Chand [(1999) 3 SCC 35] ]
31. Presumption, on the other hand, literally means "taking as true without examination or proof". In Kumar Exports v. Sharma Exports (2009) 2 SCC 513, this Court referred to presumption as "devices by use of which courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence."
32. Broadly speaking, presumptions are of two kinds, presumptions of fact and of law. Presumptions of fact are inferences logically drawn from one fact as to the existence of other facts. Presumptions of fact are rebuttable by evidence to the contrary. Presumptions of law may be either irrebuttable (conclusive presumptions), so that no evidence to the contrary may be given or rebuttable. A rebuttable presumption of law is a legal rule to be applied by the Court in the absence of conflicting evidence (Halsbury, 4th Edition paras 111, 112]. Among the class of rebuttable Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 11/23 presumptions, a further distinction can be made between discretionary presumptions ('may presume') and compulsive or compulsory presumptions ('shall presume'). [G. Vasu V. Syed Yaseen (Supra)]
33. The Evidence Act provides for presumptions, which fit within one of three forms: 'may presume' (rebuttable presumptions of fact), 'shall presume' (rebuttable presumption of law) and conclusive presumptions (irrebuttable presumption of law). The distinction between 'may presume' and 'shall presume' clauses is that, as regards the former, the Court has an option to raise the presumption or not, but in the latter case, the Court must necessarily raise the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved, [G.Vasu V. Syed Yaseen (Supra)] Section 139 NI Act-Effect of Presumption and Shifting of Onus of Proof
34. The NI Act provides for two presumptions: Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that 'unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability'. It will Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 12/23 be seen that the 'presumed fact' directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138.
35. Section 139 of the NI Act, which takes the form of a 'shall presume' clause is illustrative of a presumption of law. Because Section 139 requires that the Court 'shall presume' the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase 'unless the contrary is proved'.
36. The Court will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel Vs. Amin Chand] [(1999) 3 SCC 35]
37. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that 'a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar (2019) 4 SCC 197]. Therefore, Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 13/23 mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption.
38. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.
39. John Henry Wigmore12 on Evidence states as follows:
"The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption 'disappears as a rule of law and the case is in the Jury's hands free from any rule."
40. The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non- existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of 'preponderance of Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 14/23 probabilities', similar to a defendant in a civil proceeding. [Rangappa vs. Mohan (AIR 2010 SC 1898)]
41. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words 'until the contrary is proved' occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513]25
42. In other words, the accused is left with two options. The first option-of proving that the debt/liability does not exist-is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non- existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused's case may be even fifty one to forty nine and arising out of the entire circumstances of the case, which includes: the complainant's version in the original complaint, the case in the legal/demand notice, Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 15/23 complainant's case at the trial, as also the plea of the accused in the reply notice, his 313 statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was 'no debt/liability'. [Kumar Exports and Sharma Carpets, (2009) 2 SCC 513]
43. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact.
44. The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. In Kundanlal's case- (supra) when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non- existence of consideration. Though, in that case, this Court Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 16/23 was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Section 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well.
45. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption 'disappears' and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa vs. Mudibasappa, AIR 2019 SC 1983; See also, Rangappa vs. Sri Mohan (2010) 11 SCC 441].
EXISTENCE OF STATUTORY PRESUMPTIONS
10. Trial court record reflects that at the time of framing of notice u/s 251 Cr.P.C the accused admitted that the cheques in question belong to him and also bear his signatures. He further admitted that the particulars in the cheques were filled by him. He has further admitted the factum of handing over of the same to the complainant, albeit for a different purpose Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 17/23 than what is claimed by the complainant. Admittedly, the cheques in question were dishonored upon being presented for encashment by the complainant. Service of the legal demand notice is admitted by the accused. Admittedly, the accused did not make any payment demanded vide the said legal notice within the period prescribed u/s 138 of NI Act. All the above facts are sufficient to invoke the presumptions available to the complainant u/s 118 NI Act and u/s 139 NI Act. As such, the evidential burden stood transferred upon the accused to prove that the cheques in question were not issued towards discharge of any liability. Until the said evidential burden is discharged by the accused, the presumptions available against the accused u/s 118 NI Act and u/s 139 NI Act will have to be assumed to be true, without expecting the complainant to do anything further. The said burden could be discharged by the accused either by leading defence evidence to conclusively establish that the cheques were not issued in discharge of a debt / liability or by proving the non existence of debt / liability on preponderance of probabilities by referring to the particular circumstances of the case. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence. Once the accused produces such evidence, the burden shifts back to the complainant and the above mentioned presumptions disappear.
REBUTTAL OF STATUTORY PRESUMPTIONS
11. Now, the question left to be decided is whether the said presumptions have been successfully rebutted by the accused or not. In order to adjudicate the same, this Court must deal with the facts adduced on record by the accused during the cross-examination of complainant.
12. The said adjudication requires an understanding of the stand taken Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 18/23 by the parties. As per complainant, the cheques in question were issued by the accused in order to repay the friendly loans advanced to accused in the years 2017 and 2019. On the other hand, the accused denies any such liability and claims, in response to notice framed upon him u/s 251 Cr.PC, that the cheques in question were handed over as a security to the complainant in lieu of the loan advanced to him (by the complainant). Accused further claims that he received Rs. 10 lakhs from the account of complainant and Rs. 70 lakhs from 13 bank accounts of other persons which sum was also arranged by the complainant and paid to him (accused) at the instructions of the complainant. Accused further claims that the said 70 lakhs was paid to him in respect of the loan agreements executed between him and the complainant. He further claims that he has returned some amount to the complainant. In his statement recorded u/s 313 Cr.P.C, the accused has simply stated that the complainant gave him Rs. 10 lakhs, out of which a sum of Rs. 4 lakhs has already been returned to the complainant. Accused further claims that he had handed over the cheques in question to the complainant as a 'security'. Accused examined himself as DW-1 and deposed as under:-
".................In 2017, I have extraction deals in granite in MP. For the same purpose I entered into a partnership with the complainant. There was a partnership deed signed between us. Between 2017-19, the complainant gave me 10 lakhs rupees. Under this partnership deed, I gave five security cheques to the complainant. I gave a DD for Rs. 4,03,540/-. Now, I owe only the rest of the account from this above mentioned 10 lakhs rupees to the complainant. I gave the complainant cheque for Rs. 20 lakhs and Rs. 25 lakhs. I signed these two Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 19/23 cheques and also filled up the details. These cheques were given by me as security cheques and form part of the above mentioned five cheques ........................"
13. Now we delve into the testimony of complainant, who examined himself as CW-1. CW-1 deposed in line with the facts mentioned in the afore-going paragraphs. He was cross-examined on behalf of the accused on two occasions. However, he did not betray any signs of falsity or untruth, nor any inconsistency has been noticed in his oral testimony. That apart, the accused made several admissions during the course of trial, which admissions corroborate the case of the complainant in all material aspects. It would be appropriate to reproduce the said admissions made during the cross-examination of complainant hereinafter for convenience of all. The relevant portions of cross-examination of complainant / CW-1 are as under:-
".................I know the complainant since he year 2017. There is no loan agreement made between the parties before the present loan agreements........................"
(CW-1 Parmod Kumar in his cross-examination dated 11.04.2022 on behalf of accused.)
14. It is apparent from the above extracts of cross-examination of the complainant / CW-1 that the accused has admitted (i) that he (accused) was acquainted with the complainant and; (ii) that he entered into 'loan agreements' with the complainant. The above admissions are binding upon the accused in view of the observations made by Hon'ble Supreme Court in Balu Sudam Khalde and Anr. Vs. State of Maharashtra 2023 SCC Online SC 355. That apart, this Court finds it appropriate to refer to the plea Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 20/23 of defence of (accused), recorded at the time of framing of notice u/s 251 Cr.P.C., wherein the accused has categorically admitted receipt of Rs.10 lakhs from the complainant and receipt of a further sum of Rs. 70 lakhs from other persons at the instance and instructions of the complainant. The said plea corroborates the claim of complainant at least to the extent of receipt of Rs. 80 lakhs. Here, it would also be appropriate to refer to the arguments made by Ld. Counsel for the accused to the effect that the complainant has deliberately withheld the fact that the parties entered into a 'Partnership Deed' at the relevant time, which partnership still exists. It is submitted that the complainant never advanced a sum of Rs. 1.5 crores, as was stipulated in the loan agreements; rather a sum of Rs. 10 lakhs only was paid at the time of entering into said partnership. It is argued that the cheques in question were issued merely as a 'security' in pursuance of the said partnership and the same were not to be presented for encashment. Having considered the said arguments, this Court finds that the accused has failed to explain as to why the said defence was not put forth at the stage of framing of notice u/s 251 Cr.P.C. The said defence surfaced on record for the first time only during cross-examination of complainant. Even then, accused did not deny receipt of Rs. 1.5 crores. It seems that the accused is trying to raise the above defence as an after thought. Even if the said defence is upheld for the sake of arguments, still the accused miserably fails to explain as to why he issued cheques worth Rs. 45 lakhs (being the cheques in question) as a 'security' in favour of the complainant if the complainant had paid him a sum of Rs. 10 Lakhs only. Rather, the admission regarding receipt of Rs. 80 lakhs (as made by accused at the stage of framing of Notice u/s 251 Cr.P.C.), seem to explain the handing over of cheque was worth Rs. 45 lakhs. In the considered opinion of this Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 21/23 Court, the above facts are sufficient to discard the above defence and to hold that the accused has not been able to rebut the legal presumptions available in favour of the complainant during the cross-examination of complainant.
15. Coming to the oral evidence led on record by the accused as DW-1, it must be noted that the accused has deposed that he entered into a partnership with the complainant in the business of 'mining' and the complainant paid him a sum of Rs. 10 lakhs during the relevant period. He further deposed that he handed over five security cheques to the complainant under the Partnership Deed Ex.DW1/1. However, the accused has failed to explain the grave contradictions between his above oral testimony and the statement he made in defence at the time of framing of notice u/s 251 Cr.P.C. Apparently, accused is blowing hot and cold while raising his defences, none of which are liable to be sustained for the reasons mentioned in the aforegoing paragraph. There is no other material on record which corroborates the claim of the accused. As such, it could be safely held that the accused has failed to rebut the statutory presumption through defence evidence also.
DECISION
16. Apparently, all the statutory presumptions available to the complainant remain unrebutted and intact. All the ingredients of the offence punishable u/s 138 NI Act are available against the accused. Consequently, it has to be held that accused was correctly convicted u/s 138 NI Act by the Ld. Metropolitan Magistrate concerned. For the afore-going reasons, the impugned judgment dated 01.08.2022 is hereby affirmed and upheld.
Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 22/23 SENTENCE
17. Admittedly, the two cheques in question were issued for a payment of Rs. 20 lakhs and Rs. 25 lakhs on 20.08.2020 and 24.08.2020 respectively. Admittedly, the complainant has been running from pillar to post to recover the said amount. So far as the aspect of sentencing by Ld. Trial Court is concerned, I am of the view that Ld. Trial Court has already taken quite a lenient view while sentencing the accused. As such, the sentence imposed by the Ld. Trial Court does not call for any interference. Benefit of Section 428 Cr.P.C. be also given to the accused.
18. Appeal filed by accused therefore stands disposed of in above Digitally terms.
signed by LOVLEEN LOVLEEN Date:
2024.11.14 Dictated and Announced 16:53:50 +0530 in open Court on 14.11.2024 (Lovleen) ASJ-03 (South East), Saket Courts, New Delhi Crl. Appeal No: 385/2023 Tarique Khan Vs. Parmod Kumar 23/23