Delhi District Court
Shailesh Asthana vs Ram Singh Baliyan on 14 March, 2023
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-6, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 138/2022(RBT 106/2022)
CNR No. DLST01-004963-2022
IN THE MATTER OF:
Shailesh Asthana
S/o Late Sh. Surendra Asthana @ Chhote Lala
Proprietor of Asia Travels and Tours
R/o Flat No. 24043, ATS Paradiso,
Chai-04, Greater Noida
........Appellant
Versus
Ram Singh Baliyan
S/o Late Chattar Singh Baliyan
R/o A-3, Flat No.9, Panchsheel Vihar,
Malviya Nagar, New Delhi
........Respondent
Instituted on : 02.06.2022
Reserved on : 20.02.2023
Pronounced on : 14.03.2023
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signed by
SUNIL
SUNIL GUPTA
GUPTA Date:
2023.03.14
16:31:35
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JUDGMENT
1. Vide this judgment, I shall dispose of appeal U/s 374 Cr.P.C against the impugned judgment dated 09.05.2022 and order on sentence dated 20.05.2022 passed by Ld. MM (NI Act) -03, South, Saket, Delhi in complaint case No. 10273/2017 titled as "Ram Singh Baliyan Vs. Shailesh Asthana whereby Ld. MM has convicted the appellant for the offence U/s 138 Negotiable Instruments Act 1881 (hereinafter referred to as NI Act only) and sentenced him to pay a fine of Rs. 15,00,000/- to be paid as compensation to the respondent within 30 days failing which he has to undergo sentence of six months simple imprisonment.
2. Briefly stated the facts as per record are as under:-
The Appellant is the proprietor of Asia Travel and Tours. He approached the respondent in June, 2015 and requested him for giving friendly loan of Rs. 30,00,000/- for some business purpose for the period of two years. Respondent told him that he will arrange the amount of said loan in the intervals of two years. Same was paid during the period 15.07.2015 to 22.02.2017. After completion of two years, the respondent approached the appellant and requested to return the said amount and on the said request, the appellant handed over a cheque bearing no. 000278 drawn on Bank of Baroda dated 01.06.2017 amounting to Rs. 10,00,000/-which was duly signed by the appellant as Proprietor of Asia Travel and Tours. When the said cheque was presented for encashment by respondent, it was returned vide return memo with remarks "Insufficient Funds" on 03.06.2017. A legal demand notice was sent on 01.07.2017 to the appellant however, he Crl Rev. No. 138/2022 Shailesh Asthana Vs. Ram Singh Baliyan Page No. 2 / 20 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.14 16:31:42 +0530 failed to make the payment despite that. Thus, the respondent filed the complaint case U/s 138 NI Act.
3. On appearance of appellant, notice of accusation U/s 251 Cr.P.C was served upon him for the offence U/s 138 NI Act to which he pleaded not guilty and claimed trial. He further submitted that he had not availed any such loan from the complainant. He also stated that he had not issued the cheque in question in favour of complainant. He was not sure whether the cheque bears his signature though he used to leave a number of cheques duly signed at his office as he travelled a lot. Thereafter, an application was moved by the appellant U/s 145(2) NI Act, whereupon the appellant was allowed to cross-examine the respondent. The respondent has relied upon his evidence by way of affidavit Ex.CW1/A and other documents from Ex.CW1/1 to Ex.CW1/7 and Mark CW1/X alongwith Mark CW1/X1. Three bank officials were examined during complainant evidence as CW2, CW3 and CW4. They proved the documents i.e., bank accoumt statements of relevant period as Ex.CW2/A (Colly), Ex.CW3/A (Colly) and Ex.CW4/A (Colly) respectively. An official from Income Tax Office was also examined as CW5 and he proved the ITRs of the respondent for the assessment years 2016-17 and 2017-18 as Ex.CW5/A (Colly).
4. After completion of complainant evidence, statement of appellant/accused was recorded U/s 313/281 Cr.P.C wherein he submitted as under:-
"The present complaint is the frivolous complaint Crl Rev. No. 138/2022 Shailesh Asthana Vs. Ram Singh Baliyan Page No. 3 / 20 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.14 16:31:50 +0530 against me. I have no liability towards the complainant. The complainant has the tendency to file the frivolous complaint against many people."
5. Thereafter, the appellant examined himself as a witness in his defence (DW-1) U/s 315 Cr.P.C. He relied on the documents i.e., copy of ordersheets Mark DW1/A (Colly) and bank account statements of his different accounts Ex.DW1/D1, Ex.DW1/D2, Ex.DW1/D3 and Ex.DW1/D4. Certain documents pertaining to amount transferred in his bank accounts Ex.DW1/C1, Ex.DW1/C2 and Ex.DW1/C3 were also put to him during his cross-examination.
6. After hearing the arguments from both the sides and considering the material on record, Ld. Trial Court convicted the appellant for the offence U/s 138 NI Act vide judgment dated 09.05.2022 and sentenced him accordingly vide order on sentence dated 20.05.2022. Said judgment alongwith order on sentence has been challenged by way of this appeal.
7. Arguments heard.
It has been argued on behalf of appellant that Ld. Trial Court has convicted the appellant herein without properly appreciating the facts and law applicable thereupon. It has been submitted that the transaction in question as mentioned in the complaint never took place. It has been submitted that out of 12 transactions as mentioned in the complaint, the transactions at serial no.4 & 10 were made in cash and there is nothing on record to show that said sums were actually so paid to the appellant.
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SUNIL GUPTA
GUPTA Date:
2023.03.14
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Also, the last transaction dated 22.02.2017 is pertaining to ATT Pvt. Ltd. which is a company and not a proprietorship firm so to recover the said amount, respondent should have made the company a party which is not a case here. It was further argued that as per the case of respondent, the amount of Rs. 30 lacs was advanced to the appellant on his request for 2 years. In case, the loan was given for 2 years, it is not clear as to why the appellant will issue the cheque before the expiry of period of 2 years from the date of last payment. Further, it is highly unbelievable that appellant was advanced a sum of Rs. 30 lacs without any agreement and without any interest. Further, respondent has failed to disclose the source of funds for transactions at serial no.4 & 10. Also, as per respondent, the appellant was a cheater and he has left Delhi so in these circumstances, respondent was having no occasion to advance such a huge sum of money to him. Further, the alleged act of advancing a sum of Rs. 30 lacs by the respondent who is an advocate by profession to his client (as alleged by respondent) is violation of Advocates Act, 1961. Lastly, it was argued that a total of Rs. 19.5 lacs was received by the appellant as per the documentary proof on record out of which a sum of Rs. 10.10 lacs stands repaid which is clear from the testimony/ cross-examination of the respondent thereby making his remaining claim confined to a sum which is less than the cheque amount . He has prayed for setting aside of impugned order. He has relied upon following judgments:-
(i) P. Venugopal Vs. Madan P. Sarathi 2009 (1) SCC 492.
(ii) Vijay Vs. Laxman and Anr (2013)3 SCC 86.
(iii) M.S. Narayana Menon Vs. State of Kerala 2006 (6) SCC 39.Crl Rev. No. 138/2022 Shailesh Asthana Vs. Ram Singh Baliyan Page No. 5 / 20
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(iv) Rangappa Vs. Mohan AIR 2010 SC 1898.
(v) John K. John Vs. Tom Varghese MANU/SC/8039/2007.
(vi) S.K. Jain Vs. Vijay Kalra 208 (2014) DLT 503.
(vii) Vipul Kumar Gupta Vs. Vipin Gupta 2012 (V) AD (CRI)
189.
(viii) Devender Kumar Vs. Khem Chand 223 (2015) DLT 419.
(ix) Sanjay Mishra Vs. Ms. Kanishka Kapoor @ Nikki and Anr in 2009 CRL. L.J. 3777.
(x) Kulvinder Singh Vs. Kafeel Ahmad Crl.P. 478 2011.
(xi) G.A. George Vs. A Balaraj Crl. Appeal No. 1853/2016.
(xii) Sanjay Verma Vs. Gopal Halwai dated 15.03.2019.
(xiii) G. Pankajakshi Amma Vs. Mathai Mathew.
(xiv) Thiruvengadapillai Vs. Navaneethammal and Anr. AIR 2008 SC 1541.
(xv) Alliance Infrastructure Project Vs. Vinay Mittal. (xvi) Dashrathbhai Trikambai Patel Vs. Hitesh Mahendrabhai Patel.
(xvii) Alamelu and Another Vs. State represented by Inspector of Police (2011) 2 SCC 385.
(xviii) Sudhir Engineering Company Vs. Nitco Roadways 1995 RLR 286.
(xix) Sait Tarajee Khimchand Vs. Yelamarti AIR 1971 SC 1865. (xx) Kulwinder Singh Vs. Kafeel Ahmad Cr. L.P. No. 478/2011. (xxi) V. Venkata Subbarao Vs. State represented by Inspector of Police 2006 (14) Scale 125 (xxii) M.S. Narayana Menon Vs. State of Kerala Crl Rev. No. 138/2022 Shailesh Asthana Vs. Ram Singh Baliyan Page No. 6 / 20 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.14 16:32:14 +0530 (xxiii) Mahadeo Laxman Sarane Vs. State of Mahrashtra. (xxiv) Ilakkia Raja Vs. T. Umamaheshwarani 49(1). (xxv) Raj Kumar Singh Vs. State of Rajasthan AIR 2013 SC 3150.
8. Per contra, it has been argued by Ld. Counsel for the respondent that Ld. Trial Court has passed the impugned judgment after properly appreciating the facts and law applicable. It was argued that there were friendly relations between the appellant and respondent and this fact has been admitted by the appellant in application U/s 145(2) NI Act filed before Ld. Trial Court. It was argued that due to friendly relations between the parties, no agreement was executed and no interest was charged on the loan by him. It was further submitted that the only defence taken by the appellant is that the cheque in question was stolen from his office but that is not believable as it is not possible for any person to simply go into the office of a person and take out the blank signed cheque from there in the presence of staff members. Also, in case the cheque was so stolen he could have noticed the missing cheque and should have made a complaint to police which is not a case here. It has been submitted that out of a total amount of Rs. 30 lacs advance to the appellant, a sum of Rs. 19.5 lacs was transferred by way of bank transfer and the cheque in question is only for a sum Rs. 10 lacs. So in any case, the liability of the appellant is there. It has also been submitted that as far as the remaining amount is concerned, the source thereof has been proved by the respondent before Ld. Trial Court. Also, in case there is any violation of Advocates Act 1961 then that issue shall be decided by Bar Council of Delhi and not by this Crl Rev. No. 138/2022 Shailesh Asthana Vs. Ram Singh Baliyan Page No. 7 / 20 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.14 16:32:19 +0530 Court. He has prayed that the appeal may be dismissed.
9. I have considered the submissions from both the sides alongwith record and the judgments cited.
The crux of the case of respondent before Ld. Trial Court was that he was having friendly relations with the appellant herein and had advanced a sum of Rs. 30 lacs to him in 12 installments/ tranches starting from July, 2015 to February, 2017 on the request of the appellant for a period of 2 years. To repay the said loan, the appellant handed over the cheque bearing no. 000278 amounting to Rs. 10 lacs to him which was dishonoured on presentation for encashment. Despite service of legal notice, no payment was made. A complaint case was filed before Ld. Trial Court for the offence U/s 138 NI Act wherein the appellant was convicted after trial.
10. The crux of defence of appellant is that he had never taken loan of Rs. 30 lacs from the respondent as alleged. He had taken a loan of Rs. 10 lacs only from him and he has paid him a sum of Rs. 10.10 lacs through RTGS and cheques. He has also allegedly paid him commission amounting to Rs. 7,64,000/- in cash. Further, he never issued the cheque in question to the respondent and same was stolen from his office.
11. The payments so made by respondent to the appellant as per record have been mentioned in a tabular form hereinafter for sake of convenience:-
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2023.03.14 16:32:28 +0530 Date of S.No. Amount Mode Proof transaction Bank
1. 15.07.2015 1 lac Ex. CW4/A Transfer Ex.CW2/A Bank
2. 20.07.2015 1 lac (amount did not get Transfer transferred) Bank
3. 24.07.2015 1 lac Ex.CW2/A Transfer December, No documentary
4. 6.5 lacs Cash 2015 proof Bank
5. 30.12.2015 1 lac Ex.CW2/A Transfer Bank
6. 31.12.2015 2 lacs Ex.CW3/A Transfer Bank
7. 31.12.2015 1,50,017.18/- EX.CW4/A Transfer Bank
8. 27.01.2016 1,00,005.76/- Ex.CW3/A Transfer Bank
9. 11.02.2016 6 lacs Ex.CW3/A Transfer No documentary
10. 12.02.2016 4 lacs Cash proof Bank
11. 06.05.2016 2 lacs Ex.CW3/A Transfer Bank
12. 22.02.2017 3,00,028.75/- Ex.CW3/A Transfer
12. The payments at serial no. 1, 2, 3, 5, 6, 7, 8, 9, 11 & 12 have been duly proved by way of documentary evidence as mentioned in the table above. The payments at serial no. 4 & 10 have been allegedly made in cash. Admittedly, there is no documentary proof or any witness to said Crl Rev. No. 138/2022 Shailesh Asthana Vs. Ram Singh Baliyan Page No. 9 / 20 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.14 16:32:36 +0530 payments. Ld. Counsel for the appellant has raised doubts on the said payments on the ground that the source thereof has not been disclosed. Same contentions were made on behalf of appellant before Ld. Trial Court also however, Ld. Trial Court did not accept those contentions. For proving the source of funds for the payment of Rs. 6.5 lacs allegedly made in December 2015, it was deposed by the respondent before Ld. Trial Court on 31.05.2018 that a property bearing no. A-3 (new number A-3-A), front side portion of First Floor, comprised in Khasra No. 2292/123 situated in the Revenue Estate of Village Khirki, now known as Panchsheel Vihar, Malviya Nagar, Tehsil Hauz Khas (Mehrauli), New Delhi-17 was sold by way of GPA by Ms. Renu Chaudhary (stated to be his wife) to Ms. Tripti Jain on 31.10.2014. The copy of GPA (Mark CW1/X) was placed on record on 25.08.2018 to prove this point. As per the same, the total consideration amount was Rs. 34 lacs out of which Rs. 8.5 lacs was received in cash and remaining sum of Rs. 25.5 lacs was received by way of 3 different cheques. The respondent has also placed on record the photocopy of the pass-book of joint bank account in the name of his wife and himself to show that the 3 cheques were so presented for encashment in that account. It was deposed by him that the payments were received till December 2015 to show that the funds amounting to Rs. 6.5 lacs were readily available with him in December 2015 which was so advanced to the respondent.
13. Although, Ld. Trial Court accepted said explanation given by the respondent in impugned judgment, however, this Court is unable to Crl Rev. No. 138/2022 Shailesh Asthana Vs. Ram Singh Baliyan Page No. 10 / 20 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.14 16:32:43 +0530 accept that for the reasons to follow. Firstly, as per the GPA Mark CW1/X, it appears that the cash amounting to Rs. 8.5 lacs was received by the wife of respondent on the date of execution of GPA i.e., 31.10.2014. Not only that the payment of Rs. 25.5 lacs by way of 3 cheques was received in their joint bank account by 3rd November, 2014. It is highly unbelievable that the respondent being an advocate would have allowed his wife to execute the power of attorney on 31.10.2014 and the payment of cash component would have been deferred till December 2015 without there being anything to that effect in the document itself.
14. There is another issue with this aspect pertaining to the mode of proof. Relevant provisions regarding proof of documents are contained in Section 64 and 65 of Indian Evidence Act, 1872. Same are reproduced below for ready reference:-
"Section 64 Proof of documents by primary evidence- Documents must be proved by primary evidence except in the cases hereinafter mentioned.
Section 65 Cases in which secondary evidence relating to documents may be given- Secondary evidence may be given of the existence, condition or contents of a document in the following cases:
(a) when the original is shown or appears to be in the possession or power-
of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not Crl Rev. No. 138/2022 Shailesh Asthana Vs. Ram Singh Baliyan Page No. 11 / 20 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.14 16:32:53 +0530 produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, of any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) When the original is a public document within the meaning of section 74;
(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In case (a)(c) and (d), any secondary evidence of the contents of the documents is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document,but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."
15. Admittedly, only the photocopy of said GPA was placed on record and it is not clear as to why the original thereof was not so produced.
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SUNIL GUPTA
GUPTA Date:
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May be the original was with Mrs. Tripti Jain but that fact should have specifically come on record. In the absence of that, mere photocopy of the GPA and for that matter, the photocopy of pass-book of their joint bank account is not sufficient to prove that any such transaction had ever taken place.
16. As far as Rs. 4 lacs allegedly paid by him to the appellant on 12.02.2016 is concerned, it was deposed by the respondent on 31.05.2018 that said payment was so made out of his agricultural income for the month of February 2016. Reliance has been placed on the record pertaining to him as available with Income Tax Department for the assessment year 2017-18 (Ex.CW5/A Colly) which shows his agricultural income for financial year 2016-17 as Rs. 3,50,000/-. There is no specific head pertaining to February 2016 in those documents and no other documentary proof to show that has come on record. Further, it is highly doubtful that a person who is making entire payment by way of bank transfer so as to maintain a record would make payment of a huge amount of Rs. 4 lacs in cash that too without taking any receiving. So, said payment of Rs. 4 lacs by respondent to the appellant is also doubtful.
17. Having said that, it is to be seen that the present matter pertains to a cheque amounting to Rs. 10 lacs only. Out of Rs. 30 lacs allegedly paid by the respondent to the appellant, Rs. 19.5 lacs have been paid by way of bank transfer. The payment allegedly made on 20.07.2015 cannot be counted as the record Ex. CW2/A shows that said payment Crl Rev. No. 138/2022 Shailesh Asthana Vs. Ram Singh Baliyan Page No. 13 / 20 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.14 16:33:13 +0530 was not credited to the account of the appellant. Meaning thereby that the total payment made to the appellant by way of bank transfer is Rs.
18.5 lacs. The defence of the appellant is that repayment of Rs. 10.10 lacs by him has been proved on record so the cheque in question was for an amount greater than his liability as existing on that date. This submission was based on the testimony of the respondent dated 04.05.2018. Relevant portion thereof is being reproduced below for ready reference:-
"It is correct that I have received a sum of Rs. 5 lacs from the accused through RTGS on 10.02.2016. (Vol. However, the same was against the another loan of Rs. 5 lacs taken by the accused from me). It is correct that I have not mentioned that aforesaid fact either in my complaint or evidence by way of affidavit. (Vol. The aforesaid fact is corroborated by my passbook Ex.CW-1/1 Colly. The grant of loan is reflected at point A). It is wrong to suggest that the sum of Rs. 5 lacs reflected at point A is in respect of any separate loan.
It is correct that I have received a further sum of Rs. 30,000/-, Rs. 85,000/-, Rs. 35,000/-, Rs. 90,000/-, Rs. 90,000/-, Rs. 85,000/-, Rs. 10,000/- and Rs. 85,000/- from the accused on 07.04.2016, 22.07.2016, 24.08.2016, 21.09.2016, 28.10.2016, 09.12.2016, 04.05.2017 and 29.07.2017 respectively. (Vol. However the said amounts were received by me from the accused towards my professional fees). Again said, I wish to verify the same from my account books."
18. Perusal of impugned judgment reveals that Ld. Trial Court has disbelieved the submissions of the respondent in response to the Crl Rev. No. 138/2022 Shailesh Asthana Vs. Ram Singh Baliyan Page No. 14 / 20 Digitally signed by SUNIL SUNIL GUPTA Date:
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questions put to him pertaining to said payments amounting to Rs. 10.10 lacs in total. His testimony reproduced above reveals that he has accepted the factum of having received payment of Rs. 5 lacs from the appellant through RTGS on 10.02.2016 however, he volunteered to say that same was against another loan of Rs. 5 lacs taken by him (the appellant). He also stated that this fact is corroborated by his pass-book Ex.CW1/1 (colly) where grant of said loan is reflected at point A. Ld. Trial Court has disbelieved this explanation in following words:-
"CW-1 admitted receiving Rs. 5 lakhs from the accused through RTGS on 10.02.2016 but qualified with by saying that it was against another loan of Rs. 5 lakhs taken by the accused from him. He admitted that he had not mentioned this in his complaint of affidavit. Thereafter, Ex.CW1/1 (colly) added that the said fact is corroborated by Ex.CW1/1 (colly) and that the grant of loan is reflected at point A therein. The said point A in Ex.CW1/1 (colly) infact shows that payment of Rs. 1 lac by the complainant to the accused vide cheque bearing no. 647295 on 15.07.2015 which is also the first installment by which the loan in question was advanced as per the present complaint."
19. Perusal of Ex.CW1/1 (colly) reveals that the respondent has put alphabet A in the accompanying documents at two points. Ld. Trial Court has mentioned about the first entry dated 15.07.2015 denoted by alphabet A but missed the entry dated 10.02.2016 also denoted by alphabet A in the bank account statement pertaining to State Bank of India. Said entry is duly proved by way of documents Ex.CW3/A (colly) wherein a payment of Rs. 5 lacs has been made to the appellant Crl Rev. No. 138/2022 Shailesh Asthana Vs. Ram Singh Baliyan Page No. 15 / 20 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.14 16:33:29 +0530 on 03.02.2016 and same amount has been received back on 10.02.2016. Ld. Trial Court missed this material point due to confusion created by the respondent by giving same alphabet to denote two different bank entries. So, it stands proved that a payment of Rs. 5 lacs was made by respondent to the appellant on 03.02.2016 and he received same amount from him on 10.02.2016. The payment received by the respondent on 10.02.2016 amounting to Rs. 5 lacs could have been against the payment made by him to the appellant on 03.02.2016 as nothing contrary to that has come on record. Regarding remaining payment amounting to Rs. 5.10 lacs, Ld. Trial Court has rightly disbelieved the testimony of the respondent to the effect that said payments were against the professional fees for the services rendered by him to the appellant.
20. Ld. Counsel for the respondent has not argued much on the point of these payments amounting to Rs. 5.10 lacs for the reason that whatever be the arguments of defence, the payment of more than Rs. 10 lacs was infact transferred/made to the appellant which has been duly proved by calling the relevant bank record and the cheque in question was for an amount lesser than that. This Court also agrees with Ld. Counsel for respondent on this particular point as admittedly, a payment of Rs. 18.5 lacs was so received by appellant from the respondent through bank transfer and at the most a payment of Rs. 5.10 lacs can be said as having been made by him to the respondent thereafter, so the liability of the appellant to the tune of Rs. 13.40 lacs is still subsisting.
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21. As far as the submission of Ld. Defence Counsel that payment of Rs. 3,00,028.75 dated 22.02.2017 was made to a company i.e., ATT Pvt. Ltd. and the company has not been made a party is concerned, even if that amount is deducted from the liability of the appellant to the tune of Rs. 13.40 lacs, then also the outstanding liability will be higher than the cheque amount (remaining amount will be Rs. 10,39,971.25/-).
22. One of the defences taken by Ld. Counsel for appellant is that it is not believable that a huge sum of Rs. 30 lacs was advanced by the respondent without any written agreement and without interest. He has also argued that the respondent could not have advanced such a sum to the appellant when he was a cheater as per him and was hiding from police. Said defences are of no help to the case of appellant as the payment of atleast Rs. 18.5 lacs from respondent to him (including to his company at his instance) has been proved by way of relevant bank record and no explanation thereof has come on record. The appellant has admitted in his testimony dated 05.08.2019 before Ld. Trial Court that he knew the respondent through one friend Mr. Navneet Kasana, so the absence of any agreement pertaining to transaction in question as well as there being nothing on record qua interest to be paid by him are of no significance.
23. Another defence taken by Ld. Counsel for appellant is that as per the case of respondent, the alleged loan was taken for a period of 2 years however, last alleged payment was made on 22.02.2017 and Crl Rev. No. 138/2022 Shailesh Asthana Vs. Ram Singh Baliyan Page No. 17 / 20 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.14 16:33:45 +0530 cheque in question was dated 01.06.2017 which is less than 4 months from last payment. It was submitted that in case, the loan would have been taken by the appellant for a period of 2 years then there was no occasion for him to issue the cheque in question before lapse of said period. Ld. Counsel has tried to lay emphasis on this point to show that the cheque in question was infact stolen by the respondent.
24. It is true that as per case of respondent, the appellant had approached him in June 2015 and had requested for friendly loan of Rs. 30 lacs for business purpose for a period of 2 years. It is also true that the payments were so made to him starting from 15.07.2015 to 22.02.2017 and cheque in question was not issued after 2 years from the last payment however, that alone is not sufficient to disbelieve the entire case of respondent. There was no bar on the appellant making part payment before the lapse of period of 2 years. The period of 2 years was not a statutory period or something cast in stone, which could not have been preponed. There is another way of seeing it. The act of appellant in issuing the cheque for Rs.10 lacs before the lapse of period of 2 years can be termed as novation of contract which is allowed as per Section 62 of Indian Contract Act. Even otherwise, the defence has miserably failed to prove that the cheque in question was so stolen from the office of the appellant. It is not believable that a businessman would leave his signed blank cheques in open in his office so that anyone can come and misuse the same after filling in remaining particulars. The absence of any complaint in this regard to police also indicates to the falsity of said defence. So, this ground is also of no Crl Rev. No. 138/2022 Shailesh Asthana Vs. Ram Singh Baliyan Page No. 18 / 20 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.14 16:33:53 +0530 help to the case of appellant.
25. The appellant has relied upon 25 judgments in support of his case before this Court however, none of those judgments is applicable in the present matter as the respondent has successfully proved the liability of the appellant against cheque in question by way of relevant bank records and no explanation has been provided by the defence for those bank transfers.
26. Considering the above discussion, this Court is of the view that Ld. Trial Court has rightly convicted the appellant as he has failed to rebut the presumptions existing in favour of the respondent.
Accordingly, instant appeal stands dismissed.
27. Mr. Shailesh Asthana is directed to pay the compensation of Rs. 15,00,000/- to Mr. Ram Singh Baliyan by 21 st March, 2023 failing which he shall surrender before Ld. Trial Court on said date at 02:30 pm. In the eventuality of his failure to pay the compensation, Ld. Trial Court shall enforce the sentence as per law. 20 % amount i.e., a sum of Rs. 03,00,000/- deposited by appellant before Ld. Trial Court by way of 3 Demand Drafts bearing no. 050522 dated 24.06.2022, 208380 dated 27.06.2022 and 208394 dated 29.06.2022 in compliance of order dated 02.06.2022 of Ld. Predecessor be adjusted in the compensation to be paid to the respondent.
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Digitally
signed by
SUNIL
SUNIL GUPTA
GUPTA Date:
2023.03.14
16:34:01
+0530
28. Before parting with this judgment, this Court agrees with the view taken by Ld. Counsel for respondent during arguments that the violation, if any, of the Advocates Act 1961 by the respondent herein can be determined by Bar Counsel of Delhi only. Accordingly, let copy of this judgment be sent to Bar Counsel of Delhi, 2,6, Khel Gaon Marg, Siri Fort Institutional Area, New Delhi-49 to examine the issue as to whether there is any violation of Advocates Act 1961 by Mr. Ram Singh Baliyan and to proceed further as per law.
29. Copy of this judgment be also sent to Income Tax Office, Civic Center, Minto Road, New Delhi to see if there is any violation of relevant laws pertaining to income tax by Mr. Shailesh Asthana and /or Mr. Ram Singh Baliyan as apparently there are several cash entries in their bank account statements on record and to proceed further as per law.
Compliance report be placed on record by Ahlmad within 10 days. Appeal stands disposed of in said terms.
Digitally signed by SUNIL SUNIL GUPTA
GUPTA Date:
2023.03.14
16:34:11 +0530
Announced in the open (Sunil Gupta)
Court on 14th March, 2023 Additional Sessions Judge-06,
South, Saket Courts, New Delhi
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