Delhi District Court
Mohd Kashif vs Mohd Azam Khan on 27 March, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-008682-2023
CRIMINAL APPEAL No.: 145/2023
MOHD. KASHIF,
S/o. Mohd. Aqil,
R/o. 2668, Baradari,
Sher Afghan, Ballimaran,
Delhi-110006. ... APPELLANT
VERSUS
MOHD. AZAM KHAN,
S/o. Late Sh. Haji Mohd. Ishaq,
R/o. 140, Katra Gokul Shah,
Matia mahal, Jama Masjid,
Delhi-110006. ... RESPONDENT
Date of Institution : 04.07.2023
Date when judgment was reserved : 03.01.2025
Date when judgment is pronounced : 27.03.2025
JUDGMENT
1. The present appeal has been preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter, referred to as 'Cr.P.C.') against the judgment dated 06.06.2023 (hereinafter referred to as 'impugned judgment'), passed by learned Metropolitan Magistrate (NI Act)-02/Ld. MM(NI Act)-02, Central, Tis Hazari Courts, Delhi (hereinafter referred to as the 'Ld. Trial Court/Ld. MM Court') in case bearing; 'Mohd. Azam Khan v. Mohd. Kashif, CC No. 540191/2016', convicting the appellant for the offence punishable under Section 138 Negotiable Instrument Act (hereinafter referred to as 'NI Act') and the consequent order of sentence dated 09.06.2023 (hereinafter referred to as 'impugned order'), passed by the Ld. Trial Court, awarding the appellant; simple imprisonment for a period of 03 CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 1 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.27 16:04:23 +0530 (three) months and fine of Rs. 5,00,000/- (Rupees Five Lakhs only), i.e., the amount of cheque in question along with interest, to be computed at the rate of 9% (nine percent) per annum on the said amount, from the date of filing of the complaint ( i.e., from 22.09.2016) before the Ld. Trial Court till the date of the impugned judgment to be paid by the appellant to the respondent/complainant as compensation. Correspondingly, the impugned order directs that in default of payment of the said fine/compensation amount, the appellant would be liable to undergo simple imprisonment for a further period of 03 (three) months (hereinafter impugned judgment and impugned order are collectively referred to as the 'impugned judgment and order').
2. Succinctly, the present proceedings emanate from a complaint, filed by the respondent/complainant before the Ld. Trial Court in terms of the provisions under Section 138 of NI Act. Markedly, under the said complaint, the respondent inter alia contended that the appellant/accused and the respondent were known to each other and that in the month of February, 2016, the appellant approached the respondent for a friendly loan of Rs. 5,00,000/- (Rupees Five Lakhs only) and promised to return the same within a period of six months. As per the respondent, believing on the words of the appellant, the respondent advanced a friendly loan of Rs. 5,00,000/- (Rupees Five Lakhs only) in cash on 03.02.2016 to the appellant. Subsequently, in the month of July, 2016, when the respondent is asserted to have asked the appellant for the refund/return of the loan amount, the appellant is stated to have issued cheque bearing no. 873983 dated 18.07.2016 for a sum of Rs. 5,00,000/- (Rupees Five Lakhs only), drawn on State Bank of India, Hauz Qazi, Delhi-100006 branch (hereinafter referred to as the 'dishonoured cheque/cheque in question'). The respondent CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 2 of 42 ABHISHEK Digitally signed by ABHISHEK GOYAL GOYAL Date: 2025.03.27 16:04:29 +0530 further avowed under his complaint that when the said cheque would be presented in the bank for encashment, same would be honoured. Ergo, as per the assurances of the appellant, the respondent is proclaimed to have presented the said cheque with its banker, bearing; Oriental Bank of Commerce, Chawri Bazar, Delhi-11006 branch. However, the said cheque, returned dishonored vide return memo dated 26.07.2016 ( hereinafter referred to as the 'return memo') under the remarks, "Funds Insufficient". Consequently, the respondent is asserted to have contacted the appellant, seeking appropriate action, which the appellant is proclaimed to have flatly refused to return the loan amount. Ergo, the respondent issued a demand notice dated 08.08.2016 (hereinafter referred to as the 'legal demand notice/demand notice') to the appellant in terms of the provisions under Section 138 NI Act, however, no payment was made by the appellant, despite due service thereof. Ergo, under such circumstances, the respondent filed the aforenoted complaint in terms of the provisions under Section 138 NI Act. 2.1. Notably, consequent upon pre-summoning evidence by way of affidavit (Ex. CW1/A) having been tendered by the respondent and thereupon, Ld. Trial Court's taking cognizance of the offence on 30.09.2016, summons were issued by the Ld. Trial Court to the appellant/accused. Subsequently, upon the appellant's entering appearance before the Ld. Trial Court, notice under Section 251 Cr.P.C. was framed against him vide order dated 10.11.2017, to which, the appellant plead not guilty and claimed trial. Relevantly, during the course of trial, the respondent examined himself as CW-1, while adopting his pre-summoning evidence/ evidence by way of affidavit ( Ex. CW1/A) as well as, relying upon the documents, i.e., cheque in question/cheques CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 3 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.27 16:04:33 +0530 bearing No. bearing no. 873983 dated 18.07.2016 for a sum of Rs. 5,00,000/- (Rupees Five Lakhs only), drawn on State Bank of India, Hauz Qazi, Delhi-100006 (Ex. CW1/2); legal demand notice dated 08.08.2018 (Ex. CW1/3); postal receipts (Ex. CW1/4 and Ex. CW1/5); tracking receipt (Ex. CW1/6); and acknowledgment (Ex. CW1/7). Subsequently, on conclusion of respondent's evidence, and recording of statement of the appellant under Section 313/281 Cr.P.C. on 09.01.2020, appellant's application under Section 315 Cr.P.C., seeking permission to adduce himself as witness in his defence was allowed by the Ld. Trial Court vide order dated 01.09.2021. However, subsequently, on the submissions made by/on behalf of the appellant, appellant's right to lead defence evidence/DE was closed by the Ld. Trial Court vide order dated 16.03.2022. Consequently, upon arguments having been addressed by/on behalf of the appellant as well as the respondent, as aforementioned, the Ld. Trial Court vide impugned judgment and order, while holding the appellant guilty of the offence punishable under Sections 138 NI Act, sentenced him in the manner, as noted hereinabove.
3. Learned Counsel for the appellant vehemently contended that the impugned judgment and order were passed by the Ld. Trial Court on mere conjunctures, surmises and in contravention of the settled principles of law, deserving their setting aside at the outset. Ld. Counsel further submitted that the Ld. Trial Court failed to appreciate that in the instant case, there are copious voids in the case put forth by the respondent and that the respondent's story does not inspire any confidence, nor appeals to the senses of a prudent man. Further, as per the Ld. Counsel, the Ld. Trial Court did not consider the contradiction in the evidence put forth by the respondent. As per the Ld. Counsel, case of the CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 4 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.27 16:04:37 +0530 respondent is replete with contradictions and variations, which have not been considered by the Ld. Trial Court while convicting and sentencing the appellant. In this regard, Ld. Counsel outrightly asserted that the respondent, while under his complaint, alleged that he given friendly loan of Rs. 5,00,000/- (Rupees Five Lakhs only), in cash to the appellant on 03.02.2016, which the appellant promised to return within six months, however, under his cross- examination dated 21.09.2019, the respondent deposed that the cheque was given by the accused, "when I had given the loan on the same day i.e. on 18.07.2016". Further, as per the Ld. Counsel, the respondent under his cross examination dated 28.11.2019, further asserted, "I went to the house of the accused on 18.07.2016 who has given me the subject cheque" , belying the case put forth under his/respondent's complaint. Correspondingly, as per the Ld. Counsel, there are variations regarding the alleged date of return of the loan amount and further that despite specific assertion of the respondent under his cross examination on 21.09.2019 that he maintained good relations with the father of the accused/appellant, the reasons for non-examination of appellant's father as one of the witnesses on behalf of the complainant is not comprehensible, especially when the complainant avowed that the loan was disbursed in the presence of appellant's father. Further, as per the Ld. Counsel, the respondent even failed to prove his financial capacity in granting loan to the appellant before the Ld. Trial Court. In this regard, Ld. Counsel further fervently asserted that the version put forth by the respondent regarding his source of funds to tender the alleged 'loan amount' to the appellant is also not beyond a pale of doubt, in the absence of any source of arrangement of said fund forthcoming on the record of the Ld. Trial Court. It was further submitted that the allegations that the CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 5 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.27 16:04:41 +0530 complainant/respondent that he and the appellant were known to each other is also falsified from the respondent's declaration under his cross that he was not aware of the appellant's profession and further, as per the Ld. Counsel, the complainant even failed to establish any acquaintance between him and the appellant, belying his case.
3.1. Ld. Counsel for the appellant further vehemently argued that the impugned judgment and order resulted in causing miscarriage of justice as the Ld. Trial Court convicted the appellant merely on the basis of suggestions given on behalf of the appellant as well as statements of the appellant recorded under Section 281 read with Section 313 Cr. P.C., which, as per settled law, cannot form the basis of conviction. Even otherwise, as per the Ld. Counsel, statement of accused was not property recorded as per the mandate of the provisions under Section 313 Cr.P.C. and settled judicial precedents, entitling the appellant to be acquitted on this sole ground. It was further contended that the Ld. Trial Court also failed to appreciate that the in the respondent's cross- examination, the appellant was able to rebut the presumption of 139 NI Act and had further put forward his/appellant's case/defence, as mandated under law on preponderance of probabilities. Ld. Counsel further submitted that apart from the testimony of complainant, and a rough ledger, there is nothing on record to corroborate the assertion of the complainant that any loan was given by him to the accused/appellant. Further, as per the Ld. Counsel, the respondent even failed to bring sufficient documents on record to prove that the cheque in question was issued by the appellant to discharge a legal liability towards him/the respondent.
Even otherwise, as per the Ld. Counsel, there is neither any independent witness nor any sound documentary evidence on CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 6 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.27 16:04:49 +0530 record to prove the alleged transaction. Accordingly, Ld. Counsel submitted that not only did the Ld. Trial Court failed to consider the truth of circumstances and passed the impugned judgment in haste, rather, did not properly appreciate/examine the facts of the present case, wrongly holding the appellant guilty of the aforementioned offence, especially when the respondent failed to prove its case, beyond reasonable doubt against the appellant. Even otherwise, as per the Ld. Counsel, the impugned order on sentence was passed by the Ld. Trial Court, inconsiderate of the correct factual scenario, passing exorbitant sentence and order of compensation against the appellant. Consequently, the Ld. Counsel inter alia prayed that the present appeal be allowed, and the impugned judgment and order be set aside, and the appellant be acquitted of the alleged charges. In support of the said contentions, reliance was placed upon the decision in; Raj Kumar @ Suman v. State (NCT of Delhi), 2023 (5) SCR 754; Sri. Dattatraya v. Sharanappa, Crl. Appeal No. 3257/2024, dated 07.08.2024 (SC); Shivaji Chintappa Patil v. State of Maharashtra, Crl. Appeal No. 1348/2013, dated 02.03.2021 (SC); Naresh Kumar v. State, Crl. Appeal No. 1751/2017, dated 08.07.2024 (SC); Nar Singh v. State of Haryana, MANU/SC/1004/2014; Vijay v. Laxamn 2013 (V) AD (SC) 243; John K. Abraham v. Simon C. Abraham 2014 (1) CCC (SC) 161; Kulvinder Singh v. Kafeel Ahmad, 2013 SCC OnLine Del 34; Javed v. Kalusingh, 2021 ((66)) LAWDIGITA.IN 0603; Pradeep Kumar Verma v. Aparna Mehra, CrlLP 102/2014, dated 21.01.2015 (DHC); Kulvinder Singh v. Gulam Moinuddin, Crl. Appeal No. 122/2018, dated 11.10.2022 (DHC); Jagdish Kumar Bajaj v. State, Crl.LP No. 587/2016, dated 07.09.2022 (DHC); Mrs. Omwati Tokas v. Ram Gopal Sharma, Crl. Appeal No. 171/2022, dated 31.01.2023 (DHC); Ajay Singhania v. CBI, CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 7 of 42 Digitally signed by ABHISHEK GOYAL ABHISHEK GOYAL Date: 2025.03.27 16:04:54 +0530 Crl. MC 2163/2024, dated 18.03.2024 (DHC); Ashok Kumar v.
State, Station House Officer, CRR No. 51/2014, dated 07.05.2024 (Hon'ble J&K HC); Raju J. Vylattu v. PV Alexander & Anr., Crl. Rev. Pet 3007/2011, dated 09.10.2023 (Hon'ble HC of Kerala); M/s. SS Diamond International v. Nameeta Sharma, (2018) 5 DEL CK 0092; and M/s. Century Steel Traders v. M/s. Polaris Steel Castings Pvt. Ltd., (2019) 1 CCC 635.
4. Per contra Ld. Counsel for the respondent submitted that the impugned judgment and order were passed by the Ld. Trial Court after due appreciation of the facts and circumstances of the case as well as in consonance with the settled judicial precedents. In this regard, Ld. Counsel outrightly asserted that the appellant had admitted in the notice framed under Section 251 Cr.P.C. as well as in his statement under Sections 281/313 Cr.P.C. that the cheque in question bear his signatures. Further, the cheque in question was drawn on the account of the appellant, leading to the raising of presumption under Sections 118/139 NI Act, which the appellant failed to rebut. Ld. Counsel further submitted that at no point in time during the trial, the appellant disputed his signatures on the cheque in question or of the receipt of the legal demand notice. On the contrary, the appellant, despite receipt of the said notice, deliberately opted not to reply to the same or to make payment to the appellant against the due amount. Correspondingly, it was asserted by the Ld. Counsel that the appellant took contradictory defence during the trail and failed to even clarify whether he was the purchaser or broker of the 'so called property', as asserted by the appellant. Even otherwise, no agreement against the alleged property transaction between the respondent and his brother-in-law/jija has been placed on record by the appellant, despite being afforded opportunity by the Ld. Trial Court. It was CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 8 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.27 16:04:58 +0530 further contended by the Ld. Counsel that the testimony of the complainant/CW-1/respondent has not only been consistent, rather, unblemished as well as lucidly points towards the only inference of guilt of the appellant. It was concomitantly averred that the respondent clarified his source of loan amount in his cross examination. Ld. Counsel strenuously reiterated that the facts and circumstances put forth as well as the evidence placed on record, unerringly point out towards the guilt of the appellant and that no fault can be attributed to the finding of the Ld. Trial Court, which is based on proper appreciation of facts as well as law. Accordingly, Ld. Counsel for the State submitted that the present appeal deserves to be dismissed at the outset, as grossly malicious and devoid of merits. In support of the said contentions, reliance has been placed upon the decision in Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore, AIR 2010 SC 1402; Sumeti Vij v. Paramount Tech Sab Industries, AIR 2021 SC 1281; and Rangappa v. Sri Mohan, (2010) 11 SCC 441.
5. The arguments of Ld. Counsel for the appellant as well as that of Ld. Counsel for the respondent have been heard and the record(s), including the Trial Court Record, case laws relied upon by the parties as well as the written submissions/arguments, placed on record have been thoroughly perused.
6. At the outset, this Court deems it apposite to enunciate the scope of jurisdiction of this Court in the present proceedings, i.e., in appeal. In this regard, this Court it is pertinent to make a reference to the decision of the Hon'ble Supreme Court1 in Atley v. State of U.P., 1955 SCC OnLine SC 51, at the outset, wherein the Hon'ble Court, while delving into the 'scope an ambit' of appellate court's jurisdiction inter alia noted as under;
1Reference further made to; Padam Singh v. State of U.P., (2000) 1 SCC 621.
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.03.27
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"8. ... It is also well settled that the Court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated..."
(Emphasis supplied)
7. Correspondingly, the Hon'ble Apex Court in Narendra Bhat v. State of Karnataka, (2009) 17 SCC 785, iterated in respect of the foregoing as under;
"3. This Court has in a series of judgments held that a court exercising appellate power must not only consider questions of law but also questions of fact and in doing so it must subject the evidence to a critical scrutiny. The judgment of the High Court must show that the Court really applied its mind to the facts of the case as particularly when the offence alleged is of a serious nature and may attract a heavy punishment."
(Emphasis supplied)
8. Quite evidently, from a conjoint reading of the aforenoted judicial dictates it can be perspicuously deduced that the jurisdiction of this Court in an appeal extends to reappreciation of the entire material placed on record of the trial court and to arrive at an independent conclusion as to whether the said evidence can be relied upon or not. In fact, as aforenoted, court(s), while exercising appellate power is not required to consider the question of law, rather, also question of facts to affirmatively reach a conclusion of guilt or innocence of an accused. In fact, it is trite law1 that non-re-appreciation of the evidence on record in an appeal may affect the case of either the prosecution or even the 1 State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
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accused. Needless to reemphasize that the appellate court is to be further wary of fact that presumption of innocence of an accused, even extents until an accused is held guilty by the final court of appeal and that such a presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court.
9. Therefore, being cognizant of the aforesaid principles, however, before proceeding further with the appreciation of the merits of the case as well as rival contentions of/on behalf of the parties, this Court deems it pertinent to outrightly reproduce the relevant provisions under law/NI Act, for the purpose of present adjudication, as under;
"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;
(b) as to date: that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance: that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer: that every transfer of negotiable instrument was made before its maturity;
(e) as to order of indorsement: that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamp: that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course: that the holder of a negotiable instrument is a holder in due course:
Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud or for CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 11 of 42 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.27 16:05:13 +0530 unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
*** *** ***
138. Dishonour of cheque for insufficiency, etc., of funds in the account-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.
Explanation-For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
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."
(Emphasis supplied)
10. At the outset, this Court observes that the objective behind the introduction of the provision(s) under Section 138 CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 12 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.27 16:05:17 +0530 under the NI Act, by virtue of amendment/insertion in the year 1989 is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instrument. Notably, at the time of introduction of the said provision(s), the executive was cognizant of the fact that the civil remedies were proving to be inadequate to curb the menace on the part of unscrupulous persons and a need was felt for introduction of a penal provision to cease the propensity on the part of dishonest persons to exploit negotiable instruments for personal gains. Consequently, being wary of the imminent requirement for a penal provision to bring about faith in monetary transactions, Chapter XVII was introduced in the NI Act, comprising of the provisions from Sections 138 to 148. In particular, penal provisions under Section 138 NI Act were designed to1, "safeguard the faith of the creditor in the drawer of the cheque, which is essential to the economic life of a developing country like India. The provision has been introduced with a view to curb cases of issuing cheques indiscriminately by making stringent provisions and safeguarding interest of creditors". Notably, the Hon'ble Supreme Court in Goa Plast (P) Ltd. v. Chico Ursula D'Souza, (2004) 2 SCC 235 , while inter alia analyzing the intent of introduction of Section 138 NI Act as well as scope and objective of the said provision(s) observed as under;
"26. The object and the ingredients under the provisions, in particular, Sections 138 and 139 of the Act cannot be ignored. Proper and smooth functioning of all business transactions, particularly, of cheques as instruments, primarily depends upon the integrity and honesty of the parties. In our country, in a large number of commercial transactions, it was noted that the cheques were issued even merely as a device not only to stall but even to defraud the creditors. The sanctity and credibility of issuance of cheques in 1 Vinay Devanna Nayak v. Ryot Sewa Sahakari Bank Ltd., (2008) 2 SCC 305.
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.03.27
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commercial transactions was eroded to a large extent. Undoubtedly, dishonour of a cheque by the bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious setback. Parliament, in order to restore the credibility of cheques as a trustworthy substitute for cash payment enacted the aforesaid provisions. The remedy available in a civil court is a long-drawn matter and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee."
(Emphasis supplied)
11. Relevantly, in order to attract culpability under the provisions of 138 NI Act, the prosecution is inter alia required to prove1; (a) that the cheque was issued/drawn by a person on an account maintained by him for payment of any sum of money to another person from out of that account; (b) the cheque must have been issued against the discharge, either in whole or in part, of any debt or other liability, though, in the absence of proof to the contrary, it shall be presumed that it was issued for the same; and
(c) the cheque was returned by the bank unpaid either because the amount of money standing to the credit of that account is insufficient to honour the cheque; or because it exceeds the amount arranged to be paid from the account by an agreement with that bank. Reference in this regard is further made to the decision of Hon'ble Supreme Court in Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd., (2000) 2 SCC 745 , wherein the Hon'ble Court, while conscientiously analyzing the provisions under Section 138 NI Act inter alia explicated the ingredients of the said provision/offence, as under;
"10. On a reading of the provisions of Section 138 of the NI Act it is clear that the ingredients which are to be satisfied for making out a case under the provision are:1
N. Doraisamy v. Archana Enterprises, 1995 SCC OnLine Mad 25 CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 14 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.27 16:05:26 +0530
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;
(ii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice..."
(Emphasis supplied)
12. Here, it is further pertinent to observe that the statute/NI Act also provides for raising of a presumption/statutory presumption, casting/permitting a reverse burden on an accused and requiring the accused to prove the non-existence of the presumed fact. Quite evidently, Section 139 NI Act provides for/creates one such exception(s) to the general rule as to the burden of proof and shifts the onus on an accused to rebut the presumption envisaged under law, against him. Another such presumption under law being, under Section 118 NI Act. Reference in this regard, is made to the decision of the Hon'ble Supreme Court in Rajesh Jain v. Ajay Singh, (2023) 10 SCC 148 , wherein the Hon'ble Court noted in regard the foregoing as under;
"33. 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 CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 15 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.27 16:05:30 +0530 was made or drawn for consideration. Section 139 of the Act stipulates that "unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability". It will be seen that the "presumed fact" directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138...
34. 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"..."
(Emphasis supplied)
13. Strikingly, the Hon'ble Supreme Court in Rangappa v. Sri Mohan, (Supra.), while painstakingly evaluating the intent and purpose behind the introduction of Section 139 under the Statute books/NI Act, observed as under;
"26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat [(2008) 4 SCC 54: (2008) 2 SCC (Cri) 166] may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.
27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 16 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.27 16:05:35 +0530 to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard or proof."
(Emphasis supplied)
14. Markedly, it is observed from above that the presumption envisioned under Section 139 NI Act not only pertains to the fact that the cheque in question was drawn in discharge of debt or liability, rather, also includes a presumption that there exists a legally enforceable debt or liability at the time of such drawing. Indisputably1, the burden to rebut the presumption lies on an accused, by establishing probable defence. Needless to further observe here that, though, in order to rebut the statutory presumptions2, "an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial", however, the law is settled3 that a bare denial of the passing of the consideration or of existence of debt/liability by an accused, would not serve the purpose or come to the aid/rescue of an accused. In fact, law is well settled that under such circumstances, it is expected from an accused to bring 'something which is probable', on record for getting the burden of proof shifted to the complainant. Reference in this regard is made to the decision in Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513, wherein the Hon'ble Apex Court, explicated the law in regard the foregoing as under;
1Rajaram v. Maruthachalam, 2023 SCC OnLine SC 48.
2Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18 SCC 106.
3Kishan Rao v. Shankargouda, (2018) 8 SCC 165.
CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 17 of 42
Digitally signed by
ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2025.03.27
16:05:39 +0530
"20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him . However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non- existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act."
(Emphasis supplied)
15. Further, Section 118(a) NI Act provides for a presumption in favour of the complainant1 inter alia to the effect that the negotiable instrument or the endorsement was made or endorsed for consideration. Ergo, being cognizant of the aforenoted principles/judicial dictates, this Court would now 1 Kundan Lal Rallaram v. Custodian, Evacuee Property, 1961 SCC OnLine SC 10.
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Digitally signed by
ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2025.03.27
16:05:43 +0530
proceed with the assessment of the rival contentions of the appellant and the respondent. Pertinent in this regard to outrightly note that the appellant by means of the present appeal, challenged the financial capacity of the respondent to lend the loan of Rs. 5,00,000/- (Rupees Five Lakhs only) to the appellant, as specified under the complaint. Notably, no such assertion/averment was raised by/on behalf of the appellant before the Ld. Trial Court during the cross examination of the respondent or even during the arguments, as noted from a conscientious perusal of the case records. Needless to mention that the appellant even deliberately opted not to reply to the legal demand notice dated 08.08.2016, making any such assertion, as raised before this Court for the first time in the present proceedings. Nevertheless, in this regard this Court deems it apposite to note that it is wary of the settled law 1 that it is not obligatory on the part of the complainant to first assert his financial capacity in cheque dishonour case(s), unless the accused sets up a case regarding the complainant's wherewithal. Reference in this regard is made to the decision of the Hon'ble Supreme Court in Tedhi Singh v. Narayan Dass Mahant, (2022) 6 SCC 735, wherein the Hon'ble Court expounded the law regarding the foregoing as under;
"10. The trial court and the first appellate court have noted that in the case under Section 138 of the NI Act the complainant need not show in the first instance that he had the capacity. The proceedings under Section 138 of the NI Act is not a civil suit. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent, the courts in our view were right in holding on those lines. However, the accused has the right to demonstrate 1 APS Forex Services (P) Ltd. v. Shakti International Fashion Linkers, (2020) 12 SCC 724; and K. Ilayarajalingam v. K. Karthikeyan, Crl. R.C. No. 1123 of 2017, dated 20.06.2022 (Madras HC).
CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 19 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.27 16:05:47 +0530
that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross-examination of the witnesses of the complainant. Ultimately, it becomes the duty of the courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence"
(Emphasis supplied)
16. Clearly, law does not require the complainant to prove/to initially lead evidence to show that he had the financial capacity, unless a case is set up in the reply notice to the statutory notice sent averring that such a complainant did not have the wherewithal. As a corollary, it is only when an accused puts up a defence of lack of financial capacity on the part of such complainant, it becomes obligatory on the complainant to demonstrate his financial soundness to lend the amount or to encumber an accused with debt or liability as asserted under his complaint. However, as aforenoted, in the instant case, it is noted form the material placed on record that the appellant, nowhere before the Ld. Trial Court, challenge the financial capacity of the respondent either by issuing any reply to legal demand notice dated 08.08.2016 (Ex. CW1/3) nor at the time of framing of notice on 10.11.2017 or during the trial, rather, as noted herein, it is only during the present stage of appeal, the appellant has sought to raise the said defence of respondent's alleged financial incapacity, without any basis or background thereof, which, the appellant is precluded to do so at this stage in light of the aforenoted judicial dictate.
CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 20 of 42
17. Noticeably, Ld. Counsel for the appellant has further assailed the impugned judgment and order on the ground that the Ld. Trial Court did not comply with the provisions under Section 313 Cr.P.C. In particular, as per the Ld. Counsel for the appellant, the statement of the appellant recorded under Section 313 Cr.P.C. on 09.01.2020 is vague and could not have formed the basis of conviction of the appellant. However, in this regard, this Court notes at the outset that the superior courts 1 have persistently avowed that mere defective/improper examination under section 313 Cr.P.C. is no ground for setting aside the conviction of the accused, unless it is shown that such error or omission has, in fact, resulted in prejudice to the accused. Reference in this regard is made to the decision of the Hon'ble Apex Court in Paramjeet Singh @ Pamma v. State of Uttarakhand, 2010 (10) SCC 439 , wherein the Hon'ble Court unambiguously observed in this regard, as under;
"31. Thus, it is evident from the above that the provisions of Section 313 Cr.P.C make it obligatory for the court to question the accused on the evidence and circumstances against him so as to offer the accused an opportunity to explain the same. But, it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance, instead he must show that such non- examination has actually and materially prejudiced him and has resulted in the failure of justice. In other words, in the event of an inadvertent omission on the part of the court to question the accused on any incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the court."1
Reference is made to the decision in Shobhit Chamar & Ors. v. State of Bihar, MANU/SC/0181/1998 , wherein the Hon'ble Apex Court inter alia noted, "20. We have perused all these reported decisions relied upon by the Learned Advocates for the parties and we see no hesitation in concluding that the challenge to the conviction based on non compliance of Section 313 Cr.P.C. first time in this appeal cannot be entertained unless the appellants demonstrate that the prejudice has been caused to them. In the present case as indicated earlier, the prosecution strongly relied upon the ocular evidence of the eye witnesses and relevant questions with reference to this evidence were put to the appellants. If the evidence of these witnesses is found acceptable, the conviction can be sustained unless it is shown by the appellants that a prejudice has been caused to them. No such prejudice was demonstrated before us and, therefore, we are unable to accept the contention raised on behalf of the appellants." (Emphasis supplied) CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 21 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.27 16:05:57 +0530 (Emphasis supplied)
18. Correspondingly, the Hon'ble Supreme Court in Nar Singh v. State of Haryana, (Supra.), wherein the Hon'ble Court iterated the law in the following terms;
"16. Undoubtedly, the importance of a statement Under Section 313 Code of Criminal Procedure, insofar as the accused is concerned, can hardly be minimised. The statutory provision is based on the rules of natural justice for an accused, who must be made aware of the circumstances being put against him so that he can give a proper explanation to meet that case. If an objection as to Section 313 Code of Criminal Procedure statement is taken at the earliest stage, the Court can make good the defect and record additional statement of the accused as that would be in the interest of all. When objections as to defective Section 313 Code of Criminal Procedure statement is raised in the appellate court, then difficulty arises for the prosecution as well as the accused. When the trial court is required to act in accordance with the mandatory provisions of Section 313 Code of Criminal Procedure, failure on the part of the trial court to comply with the mandate of the law, in our view, cannot automatically enure to the benefit of the accused. Any omission on the part of the Court to question the accused on any incriminating circumstance would not ipso facto vitiate the trial, unless some material prejudice is shown to have been caused to the accused. Insofar as non-compliance of mandatory provisions of Section 313 Code of Criminal Procedure, it is an error essentially committed by the learned Sessions Judge. Since justice suffers in the hands of the Court, the same has to be corrected or rectified in the appeal.
*** *** ***
20. The question whether a trial is vitiated or not depends upon the degree of the error and the accused must show that non-compliance of Section 313 Code of Criminal Procedure has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective questioning Under Section 313 Code of Criminal Procedure, it cannot be inferred that any prejudice had been caused to the accused, even assuming that some incriminating circumstances in the prosecution case had been left out . When prejudice to the accused is alleged, it has to be shown that accused has suffered some disability or detriment in relation to the safeguard given to him Under Section 313 Code of Criminal Procedure Such CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 22 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.27 16:06:07 +0530 prejudice should also demonstrate that it has occasioned failure of justice to the accused. The burden is upon the accused to prove that prejudice has been caused to him or in the facts and circumstances of the case, such prejudice may be implicit and the Court may draw an inference of such prejudice. Facts of each case have to be examined to determine whether actually any prejudice has been caused to the Appellant due to omission of some incriminating circumstances being put to the accused."
(Emphasis supplied)
19. Ergo, in backdrop of the aforenoted judicial dictates, when the records of the Ld. Trial Court are scrupulously perused, it is noted that the Ld. Trial Court, at the time of recording of the statement of the appellant on 09.01.2020, made reference to the material/evidence brought on record against the appellant as well as specifically brought to the notice of the appellant accused, documents Ex. CW1/A, being the evidence by way of affidavit of the complainant/respondent as well as the documents, Ex. CW1/1 to Ex. CW1/7, whereupon the following was recorded under the appellant's statement before the Ld. Trial Court;
"...All the incriminating circumstances appearing in evidence against the accused alongwith documents Ex. CW-1/A, Ex. CW-1/1 to Ex. CW-1/7 have been put to him and he has been asked to explain the same. He has replied as under:
I am innocent. I admit my signature on cheque in question. I also admit that I did receive the legal notice. Complainant had entered into an agreement with me for sale of a property belonging to his brother-in-law (jija). The agreement was oral and I was not aware that the property was not in his name. The cheque in question was issued to the complainant at the time of agreement as consideration. Property documents were not shown to me at that time. Thereafter, my cheque was presented for encashment. As the documents were not shown to me, so I did not deposit the requisite amount in my bank account. I had issued three cheques in total including the present one to the complainant. All the cheques were amounting to Rs. 5 lac each. I had also instructed to the complainant not to present any cheque for CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 23 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.27 16:06:36 +0530 encashment. However, the complainant has misused the cheques by manipulation and presented the same.
Q. Do you want to lead defence evidence.? A. Yes..."
(Emphasis supplied)
20. Conspicuously, from an evaluation of above, it is noted that the appellant not only tendered his explanation to the evidence/material placed on record against him before the Ld. Trial Court, rather, also opted to lead defence evidence at the stage of recording of his statement under Section 281/313 Cr.P.C. on 09.01.2020. However, as aforenoted, the appellant later on elected not to lead any defence witness/evidence in his support, despite his application under Section 315 Cr.P.C., having been allowed by the Ld. Trial Court vide order dated 01.09.2021, leading to the closure of DE on 16.03.2022. Nonetheless, nowhere before the Ld. Trial Court, any plea of any prejudice as to violation/non-compliance of the provisions under Section 313 Cr.P.C. was raised by/on behalf of the appellant. Correspondingly, even under the ground of instant appeal, the appellant did not aver/plead non-compliance of the provisions under Section 313 Cr.P.C., rather, merely asserted that his conviction could not have been premised on his admissions made therein. In fact, it was only during the course of arguments in the present appeal and in the written submissions filed by the appellant before this Court, such an argument was raised for the first time. Nonetheless, despite repeated queries from this Court, Ld. Counsel for the appellant has failed to aver/assert/allege to the slightest, prejudice caused to the appellant on the alleged non- compliance of the provisions under Section 313 Cr.P.C. However, as aforenoted, law is trite that challenge to the conviction based on non-compliance of Section 313 Cr.P.C. first time in this appeal cannot be entertained, unless the appellants demonstrate that the CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 24 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.27 16:06:40 +0530 prejudice has been caused to them, which as aforenoted, the appellant/Ld. Counsel for the appellant, in the considered opinion of this Court, failed to do so/demonstrate. Needless to reiterate that neither any assertion of prejudice forthcoming under the arguments by/on behalf of the appellant, nor is the same observable by this Court from the material placed on record. On the contrary, such assertion, in the considered opinion of this Court, appears to be nothing other than a mere frail endeavor on the part of the appellant to circumvent the operation of impugned judgment and order on this feeble plea, which clearly does not resonate with this Court.
21. In so far as the contention of the Ld. Counsel for the appellant pertaining to the alleged contradictions in the cross examination of the complainant/respondent and the complaint are concerned, this Court deems it pertinent to iterate and explore the judicial precedents governing the law of contradictions in the testimony of the witness. In this regard, this Court deems it apt to outrightly make a reference to the decision of the Hon'ble Supreme Court in State of U.P. v. M.K. Anthony, (1985) 1 SCC 505, wherein the Hon'ble Court inter alia observed as under;
"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 25 of 42 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.27 16:06:44 +0530 rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well-wisher of the family carefully giving due weight to the comments made by the learned counsel for the respondent and the reasons assigned to by the High Court for rejecting his evidence simultaneously keeping in view the appreciation of the evidence of this witness by the trial court, we have no hesitation in holding that the High Court was in error in rejecting the testimony of witness Nair whose evidence appears to us trustworthy and credible."
(Emphasis supplied)
22. Similarly, in this regard, the Hon'ble Apex Court in Rammi v. State of M.P., (1999) 8 SCC 649, noted as under;
"24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny."
(Emphasis supplied)
23. Evidently, from the conspectus of the above, it is clearly deduced that minor discrepancies, which do not go into the root of the matter and shake the basic version of the witnesses, CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 26 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.27 16:06:48 +0530 cannot be permitted to be annexed with any undue weight. In fact, it is trite law1, the discrepancies which do not shake the basic version of the prosecution and those which emanate due to normal errors of perception or observation should not be given importance and must necessarily be discarded. The rationale behind the same is quite obvious, as elucidated by the Hon'ble Supreme Court in State of U.P. v. Naresh, (2011) 4 SCC 324, inter alia recording as under;
"30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
"9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." [Ed.: As observed in Bihari Nath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186, p. 192, para 9.] Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited..."
(Emphasis supplied) 1 Appabhai v. State of Gujarat, 1988 Supp SCC 241 CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 27 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.27 16:06:53 +0530
24. Ergo, to recapitulate, in order to disregard the testimony of a witness, it is imperative that the same is replete with material improvements, contradictions and variation. In contrast, law provides for due concession to marginal variations and normal discrepancies in the statement/testimony of a witness, which are bound to occur due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition etc. Consequently, when the testimony/deposition of the complainant/respondent/CW-1 in the instant case is analyzed, mindful of aforenoted revered principles, this Court finds itself difficult to be convinced with the contention of the Ld. Counsel for the appellant that the variation in the cross examination of CW-1 on 28.11.2019 asserting that the loan amount was to be returned in five months, in variation to the complainant's/respondent's assertion under its complaint that the loan term was six months is sufficient to discredit the version put forth by the complainant. Correspondingly, the assertion of the Ld. Counsel for the appellant that the complainant deposed on 21.09.2019 in his cross examination regarding disbursal of the loan on the date specified under the cheque by averring, "cheque was given by the accused when I had given the loan on the same day i.e. on 18.07.2016", in variation to the loan disbursal being specified under the respondent's complaint in February, 2016, fails to convince this Court, as well. In this regard, it is noted by this Court that, firstly, there is no confrontation of the complainant/respondent regarding his earlier assertion and the 'so called contradiction' under the complaint and the version put forth in CW-1's cross examination, as aforenoted. Even otherwise, when the entire cross examination of the respondent/CW-1 is conscientiously evaluated, this Court fails to concur that the respondent anywhere tried to imply that the CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 28 of 42 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.27 16:06:57 +0530 cheque in question was issued co-terminus with the loan disbursal. On the contrary, it is specifically noted under the respondent's cross examination on 21.09.2019, as under;
"...When I has received the cheque from the accused till then, there was no document pertaining to this loan was reduced in writing at any point in time..."
(Emphasis supplied)
25. Clearly, the above assertion of the complainant/respondent rules out any concurrence between the date of issuance of cheque and the loan disbursal, denoting two separate occasions thereof. Congruently, the subsequent cross examination of the complainant/respondent/CW-1 further explicates a distinction between the date of disbursal of loan and that of the issuance of cheque in question, wherein it has been inter alia recorded as under;
"XXXXXX by Sh. ***, Ld. Counsel for accused. At the time of handing over the loan amount no written receipt was was received by me from the accused. Neither any document was got executed at the relevant time. Five month was settled between me and the accused for the return of the loan amount. I had asked the accused to return the amount in the month of July, 2016 because it was settled to return after 5 months. I got understood the contents of my complaint as well as my affidavit Ex. CW1/A. It is correct that in my complaint as well as in my affidavit I had stated that the loan amount has to be returned within 6 months. It is wrong to suggest that no demand in the month of July 2016 was made to return the loan amount as loan was never given. I went to the house of the accused on 18.07.2016 who has given me the subject cheque..."
(Emphasis supplied)
26. Ergo, this Court reiterates that from a conjoint reading of the entire material placed on record and of the cross examination of the complainant/respondent/CW-1, this Court finds itself difficult to concede with the contention of Ld. Counsel CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 29 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.27 16:07:01 +0530 for the appellant that the respondent contradicted himself in so far as the dates of disbursal of loan and issuance of cheque is concerned. Needless to reiterate that there is no confrontation of the complainant by/on behalf of the appellant before the Ld. Trial Court in his/complainant's/respondent's cross-examination in so far as the alleged variation is concerned. Even otherwise, as noted herein, a conjoint reading of the entire cross-examination of CW-1/respondent, belies the plea/assertion raised by the appellant before this Court.
27. Reverting to the merits of the present case, it is noted at the outset that the appellant at the time of framing of notice under Section 251 Cr.P.C. before the Ld. Trial Court asserted as under;
"...Q. Do you plead guilty or have any defence to make?
A. I do not plead guilty and claim trial. My plea of defence is as under;
I admit my signatures on cheque in question. I also admit that I did receive the legal notice. Complainant had entered into an agreement with me for sale of a property belonging to his brother-in-law (jija). The agreement was oral and I was not aware that the property was not in his name. The cheque in question was issued to the complainant at the time of agreement as consideration. Property documents were not shown to me at that time. Thereafter, my cheque was presented for encashment. As the documents were not shown to me, so I did not deposit the requisite amount in my bank account. I had issued three cheques in total including the present one to the complainant. All the cheques were amounting to Rs. 5 lac each..."
(Emphasis supplied)
28. Pertinently, it is noted from above that the appellant admitted to his signatures on the cheque in question as well as the receipt of the legal notice/legal demand notice. Correspondingly, the appellant also admitted to the issuance of the dishonoured cheque along with two other cheques to the CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 30 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.27 16:07:05 +0530 complainant/respondent. Ergo, under such circumstances, presumption under Section 118/139 NI Act would lie against the appellant. However, as noted above, the appellant pleaded that the cheque in question was issued to the complainant/respondent against the sale of property, belonging to the respondent's brother- in-law/jija and that the said agreement was oral, besides that he/the appellant was not aware that the property was not in the name of the complainant/respondent. Markedly, similar plea was taken by the appellant at the time of recording of his statement under Section 281/313 Cr.P.C. In fact, as aforenoted, the appellant went ahead to assert that along with the dishonoured cheque, two other cheques were issued by him/the appellant to the respondent and that he had instructed the complainant/respondent, not to present any cheque for encashment, despite which, the complainant misused the cheques by manipulating and presenting the same. Nevertheless, it is seen that it is not the case of the appellant that he ever requested the respondent for the return of the dishonoured cheque from the respondent or ever lodged any complaint against the respondent before any authority against such alleged misuse. In fact, the respondent did not even produce/place on record, the particulars of other two cheques, stated to have been issued by him to the respondent along with the cheque in question. On the contrary, during the cross-examination of the respondent on 28.11.2019, the appellant raised an altogether different defence by suggesting to the respondent as under;
"XXXXXX by Sh. ***, Ld. Counsel for accused. ...It is correct that Afzal Meer is my brother-in-law (jija). It is wrong to suggest that my jija Afzal Meer along with my son Hammad Khan were indulged in selling property/flats. It is wrong to suggest that my jija and son were in dealings of five flats constructed from ground floor to 5th floor at building no. 2943-47 with the accused. It is also wrong to suggest that there CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 31 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.27 16:07:10 +0530 was settlement between my jija, son and accused, the accused could get the sale deed in favour of the parties brought by him for those flats. It is wrong to suggest that I was being the active participant in those deals and all the sale deeds pertaining to those on ground to 5th floor were got done for the consideration on Rs. 65 lacs except the 4th floor. It is wrong to suggest that out of those Rs.65 lacs some cash and three cheques were given including the subject cheque which were handed over to me. Vol. I have no concern or knowledge about the aforesaid property deals, hence I am not aware any kind of transactions between my jija, son and accused. It is wrong to suggest that when the accused came to know that the aforesaid property does not belongs to me or my son then the dispute arose with respect to the consideration amount already paid. It is wrong to suggest that accused made demand of those three cheques which were refused by me. It is further wrong to suggest that the subject cheque thereafter misused by me in order to file a false complaint against the accused..."
(Emphasis supplied)
29. Quite lucidly, in light of the foregoing, this Court is in concurrence with the observation of the Ld. Trial Court that appellant portrayed himself as the buyer of the property at one stage of proceedings, while asserting that he was involved in the transaction of sale of property along with the respondent's jija/brother-in-law and son, whereby the appellant was able to get the sale deed in favour of the parties brought by the appellant for those flats. Ergo, this Court concurs with the observation of the Ld. Trial Court that when the appellant asserts himself as the broker for the said transaction, there would be any occasion for the appellant to handover any cheques to the respondent. Needless to mention that the said suggestion contradicts with the defence of the appellant at the time of framing of notice as well as at the time of recording of his statement in terms of the provisions under Sections 281/313 Cr.P.C. Correspondingly, though the appellant further asserted that he asked for return of cheque in question from the respondent, however, no date, time or other particulars of said CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 32 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.27 16:07:14 +0530 demand is forthcoming, besides, as aforenoted, nothing has been placed on record to demonstrate that the appellant made any complaint to any authority or asked for return of cheque in question in writing from the respondent.
30. Apropos the present discourse, this Court deems it pertinent to deal with the contention of the Ld. Counsel for the appellant at this stage to the effect that the appellant has been successful in rebutting the presumption under law/NI Act on the ground that the respondent produced no proof of him having any license to lend any amount to anyone. As aforenoted, Ld. Counsel for the appellant vehemently asserted that without any license, the respondent could not engage himself in the business of money lending and since the respondent admitted that he was not in possession of such license, no legally recoverable due or liability can be attributed against the appellant herein. However, in this regard, it is observed that the appellant failed establish that the respondent was moneylender by profession. In fact, from a scrupulous analysis of the records of the Ld. Trial Court, it is noted that the respondent nowhere admitted in his complaint or cross examination that he/respondent had lent money/loan to different persons on interest. Clearly, mere admission on the part of the respondent under his cross examination that he had given loan to one Mahender Kumar Sehgal, to a tune of Rs. 6,70,000/- (Rupees Six Lakhs Seventy Thousand only); Kishan Raghav, to a tune of Rs. 30,000/- (Rupees Thirty Thousand only) as well as to one, Kishan Kumar Sharma of Rs. 1,60,000/- (Rupees One Lakh Sixty Thousand only), would not, in the considered opinion of this Court, sufficient to establish that the respondent was a money lender by profession and had initiated the instant complaint proceedings to extort money from the appellant/accused. In this CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 33 of 42 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.27 16:07:18 +0530 regard, this Court deems it pertinent to refer to the decision of the Hon'ble High Court of Delhi in Guddo Devi v. Bhupender Kumar, MANU/DE/0458/2020, wherein the Hon'ble Court in akin terms, noted as under;
"12. In the present case, there is no material to conclude that the respondent was carrying on the business of advancing loans. Merely because the respondent had lent money to three or four persons, did not lead to the inference that the respondent had been carrying out the activity of money lending as a business. The respondent had also expressly denied that he had given any loan on interest to public persons.
13. The contention that the debt owed by the petitioner was rendered unenforceable by virtue of the provisions of the Income Tax Act, 1961 is also unmerited.
14. Section 269SS of the Income Tax Act, 1961 prohibits making of any payment in cash above a sum of Rs. 20,000/-. Thus, any person violating the same would attract imposition of penalties under the said Act. However, the same does not render the said debt un-enforceable or precludes the lender from recovering the same."
(Emphasis supplied)
31. Even otherwise, presuming for the sake of argument that the respondent was not in possession of a valid license as mandated under law, same would not be a bar to the initiation of proceeding under Section 138 NI Act, as repeatedly avowed by superior courts. Reference in this regard is made to the decision in Hansraj Bansal v. State & Ors., MANU/DE/6248/2023 , wherein the Hon'ble High Court of Delhi, remarked as under;
"12.5. It is acceptable proposition of law that section 3 of Punjab Registration of Money Lenders Act, 1938 does not limit operation of section 138 of the Act and both are independent and mutually exclusive to each other. If a person advances a loan even without having a valid money lending licence or certificate he can institute and prosecute complaint under section 138 of the Act on basis of cheques and he has to satisfy only the mandatory requirements of section 138 of the Act."
CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 34 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.27 16:07:23 +0530 (Emphasis supplied)
32. Needless to mention that this Court further concurs with the finding of the Ld. Trial Court that Section 269SS of the Income Tax Act, 1961 prohibits making of any payment in cash above a sum specified therein, attracting imposition of penalties on violation thereof. However, noted hereinabove, law is settled that the same would not render such a debt unenforceable or precludes the lender from recovering the same. Further, this Court is further not convinced with the submission of Ld. Counsel for the appellant that the premise of appellant's conviction was the statement of the appellant recorded under Sections 281/313 Cr.P.C. is belied from the records of the Ld. Trial Court and the impugned order, which records that the appellant has not been able to raise any reasonable probable defence either from the cross examination of the respondent or from the assertion/plea of defence raised by the appellant even at the initial stage of framing of notice under Section 251 Cr.P.C., as mandated under law. Needless to reiterate that the appellant further opted not to lead any evidence in his defence despite being afforded an opportunity by the Ld. Trial Court. Lastly, this Court is further not convinced with the submission of Ld. Counsel for the appellant that simply because that the respondent asserted during his cross-examination that he was not aware of the profession of the appellant, it cannot be presumed that the appellant and respondent were known to each other. On the contrary, it is seen from record that the appellant specifically asserted that he visited the appellant's house to both lend the amount as well as to receive the cheque in question from the appellant. Correspondingly, the respondent asserted that he maintained good relations with the appellant's father and that he knew that appellant's father was engaged in the business of pipes.
CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 35 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.27 16:07:35 +0530
Further, the respondent also affirmed during his cross examination that he knew the mobile number of the appellant and that the said mobile number was saved in the respondent's mobile phone. Ergo, under such circumstances, it is reiterated that the factum of appellant and respondent being known to each other cannot, in the considered opinion of this Court, be denied. Lastly, in so far as the contention raised on behalf of the appellant before the Ld. Trial Court regarding variation in the handwriting on name of the respondent in the cheque and the amount written in words on the dishonoured cheque is concerned, it is noted that law is trite that filling of particulars of cheque by any person, other than the drawer does not invalidate the cheque and the liability under Section 138 NI Act/presumption under Section 139 NI Act would still be attracted under such situation(s). Reference in this regard is made to decision in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197, wherein the Hon'ble Supreme Court observed as under;
"33. A meaningful reading of the provisions of the Negotiable Instruments 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 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.
*** *** ***
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 CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 36 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.27 16:07:40 +0530 absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."
(Emphasis supplied)
33. Markedly, under the present situation, when the appellant affirmed his signatures on the cheque in question and of him handing over the same to the respondent, the contention of the Ld. Counsel for the appellant that there is discrepancy in handwriting as aforenoted, would not come to any aid/rescue of the appellant, in view of the aforenoted judicial dictates. Even otherwise, it is noted that the appellant made no endeavor to produce any evidence in support of his said contention before the Ld. Trial Court.
34. Conclusively, in conspectus of the above and inter alia keeping in view consistent testimony of the respondent/complainant/CW-1 as well as the documents placed on record, the only conclusion which can be arrived at in the facts and circumstances brought forth pertains to the guilt of the appellant for the commission of the offence under Section 138 NI Act. Needless to mention that the defence raised by the appellant are not only unworthy and uninspiring confidence, rather, irreconcilable as well as self-destructive. Accordingly, this Court has no hesitation in reasonably reaching a conclusion that the complainant has proved its case 'beyond reasonable doubt' against the appellant for the offence under Section 138 NI Act. On the contrary, the appellant has failed to raise a probable defence/defence by 'preponderance of probabilities' in his favour for the reasons hereinunder noted.
35. Appreciably, in as much as the aspect of sentence awarded to the appellant by the Ld. Trial Court is concerned, this Court, at the outset, notes that the superior courts have persistently cautioned towards the grant of just and appropriate sentence, post-
CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 37 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.27 16:07:43 +0530
conviction, as well as cautioned1 that mere long pendency of case is no ground to award lesser sentence. In fact, in the instances of cheque dishonour cases, law is settled 2 that the sentence imposed must be such as to give proper effect to the object of the legislation and to dissuade unscrupulous drawers of such negotiable instruments from taking advantage of their own wrongs. In this regard, reference is made to the decision in Suganthi Suresh Kumar v. Jagdeeshan, (2002) 2 SCC 420, wherein the Hon'ble Apex Court unswervingly opined as under;
"12. The total amount covered by the cheques involved in the present two cases was Rs 4,50,000. There is no case for the respondent that the said amount had been paid either during the pendency of the cases before the trial court or revision before the High Court or this Court. If the amounts had been paid to the complainant there perhaps would have been justification for imposing a flea-bite sentence as had been chosen by the trial court. But in a case where the amount covered by the cheque remained unpaid it should be the lookout of the trial Magistrates that the sentence for the offence under Section 138 should be of such a nature as to give proper effect to the object of the legislation. No drawer of the cheque can be allowed to take dishonour of the cheque issued by him light-heartedly. The very object of enactment of provisions like Section 138 of the Act would stand defeated if the sentence is of the nature passed by the trial Magistrate. It is a different matter if the accused paid the amount at least during the pendency of the case."
(Emphasis supplied)
36. Correspondingly, the Hon'ble Supreme Court in R. Vijayan v. Baby, (2012) 1 SCC 260 , while fervently professing towards the grant of reimbursement of the loss by way of compensation to the complainant/victim in cheque dishonour cases, avowed as under;
"17. The apparent intention is to ensure that not only the offender is punished, but also ensure that the 1 State of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13.2
H. Pukhraj v. D. Parasmal, (2015) 17 SCC 368. CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 38 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.27 16:07:48 +0530 complainant invariably receives the amount of the cheque by way of compensation under Section 357(1)
(b) of the Code. Though a complaint under Section 138 of the Act is in regard to criminal liability for the offence of dishonouring the cheque and not for the recovery of the cheque amount (which strictly speaking, has to be enforced by a civil suit), in practice once the criminal complaint is lodged under Section 138 of the Act, a civil suit is seldom filed to recover the amount of the cheque. This is because of the provision enabling the court to levy a fine linked to the cheque amount and the usual direction in such cases is for payment as compensation, the cheque amount, as loss incurred by the complainant on account of dishonour of cheque, under Section 357(1)
(b) of the Code and the provision for compounding the offences under Section 138 of the Act. Most of the cases (except those where liability is denied) get compounded at one stage or the other by payment of the cheque amount with or without interest. Even where the offence is not compounded, the courts tend to direct payment of compensation equal to the cheque amount (or even something more towards interest) by levying a fine commensurate with the cheque amount.
A stage has reached when most of the complainants, in particular the financing institutions (particularly private financiers) view the proceedings under Section 138 of the Act, as a proceeding for the recovery of the cheque amount, the punishment of the drawer of the cheque for the offence of dishonour, becoming secondary.
18. Having reached that stage, if some Magistrates go by the traditional view that the criminal proceedings are for imposing punishment on the accused, either imprisonment or fine or both, and there is no need to compensate the complainant, particularly if the complainant is not a "victim" in the real sense, but is a well-to-do financier or financing institution, difficulties and complications arise. In those cases where the discretion to direct payment of compensation is not exercised, it causes considerable difficulty to the complainant, as invariably, by the time the criminal case is decided, the limitation for filing civil cases would have expired. As the provisions of Chapter XVII of the Act strongly lean towards grant of reimbursement of the loss by way of compensation, the courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine up to twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 39 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.27 16:07:54 +0530 payment of such amount as compensation. Direction to pay compensation by way of restitution in regard to the loss on account of dishonour of the cheque should be practical and realistic, which would mean not only the payment of the cheque amount but interest thereon at a reasonable rate. Uniformity and consistency in deciding similar cases by different courts, not only increase the credibility of cheque as a negotiable instrument, but also the credibility of courts of justice."
(Emphasis supplied)
37. Ergo, wary of the aforenoted judicial dictates, facts and circumstances of the present case as well as the arguments addressed by the Ld. Counsel for the appellant as well as the respondent, this Court unswervingly observes that the Ld. Trial Court has acted quite leniently with the appellant by awarding compassionate sentence of 03 (three) months and compensation to the tune of double the cheque amount, i.e., Rs. 5,00,000/- (Rupees Five Lakhs only) along with interest, as aforenoted, to be paid by the appellant to the respondent/complainant, and in default of payment of compensation, appellant to further undergo simple imprisonment for a further period of 03 (three) months, under the impugned order/order of sentence dated 09.06.2023. Needless to mention that in the instant case, substantial time has lapsed since the initiation of the complaint proceedings by the respondent in the year, 2016, culminating in its adjudication in the present appeal, the respondent being embroiled in litigation for dishonoured cheque during the interregnum. Needless to further mention that the appellant has failed to demonstrate any mitigating factor, convincing this Court to grant any relaxation in favour of the appellant. Clearly, under such circumstances, this Court is of the considered opinion that no interference in the quantum of sentence awarded by Ld. Trial Court is warranted by this Court, while determining the present appeal, as the sentence awarded to the CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 40 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.27 16:07:58 +0530 appellant by the Ld. Trial Court not only corresponds with the crime involved, rather, falls in tandem with the resolute declarations of the superior courts, as hereinunder noted. Further, it is pertinent to reiterate that though, this Court holds highest regard for the decision(s) relied upon by the Ld. Counsel for the appellant in support of his/the appellant's case, however, none of the said decision(s) would come to the aid of the appellant, as the facts and circumstances of the present case are clearly distinguishable.
38. Conclusively, in view of the above discussion, the present appeal deserves to be rejected/dismissed and is hereby dismissed. The judgment dated 06.06.2023, passed by Ld. MM (NI Act)-02, Central, Tis Hazari Courts, Delhi in case bearing; 'Mohd.
Azam Khan v. Mohd. Kashif, CC No. 540191/2016', convicting the appellant for the offence punishable under Section 138 of the NI Act and the consequent order of sentence dated 09.06.2023, passed by the Ld. Trial Court, awarding the appellant; simple imprisonment for a period of 03 (three) months and fine of Rs. 5,00,000/- (Rupees Five Lakhs only), i.e., the amount of cheque in question along with interest, to be computed at the rate of 9% (nine percent) per annum on the said amount, from the date of filing of the complaint (i.e., from 22.09.2016) before the Ld. Trial Court till the date of the impugned judgment, to be paid by the appellant to the respondent/complainant as compensation, are hereby upheld. Appellant is directed to surrender before the Ld. Trial Court within a period of seven days from today for serving the sentence/remainder period thereof.
39. Trial Court Record be sent back along with a copy of this order/judgment, with direction to proceed against the appellant as per law. Copy of this order/judgment be also given CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 41 of 42 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.27 16:08:03 +0530 dasti to the Ld. Counsel for the appellant, considering that the appellant has joined the proceeding through video conferencing mode.
40. Appeal file be consigned to record room after due compliance.
Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.27 16:08:07 +0530 Announced in the open Court (Abhishek Goyal)
on 27.03.2025. ASJ-03, Central District, Tis Hazari Courts, Delhi CA No. 145/2023 Mohd. Kashif v. Mohd. Azam Khan Page No. 42 of 42