Delhi District Court
Anil Andrews vs Vinod Sachdeva on 3 August, 2024
DLSE010108592023
IN THE COURT OF SH. LOVLEEN, ADDITIONAL SESSIONS
JUDGE-03, SAKET COURTS, NEW DELHI
CRL. APPEAL No. 317/2023
ANIL ANDREWS
S/o LATE JASWANT ANDREWS
R/O s-258, MEZANINE FLOOR,
GREATER KAILASH-I
....Appellant
versus
VINOD SACHDEVA
R/O LATE K L SACHDEVA
R/O D-80, PANCHSHEEL ENCLAVE
NEW DELHI -110017
...Respondent
Date of institution : 19.10.2023
Date of Reserving judgment : 05.07.2024
Date of Pronouncement : 03.08.2024
Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 1/25
JUDGMENT
1. This is an appeal under section 374(3) Cr.PC preferred by the appellant against the impugned judgment dated 01.09.2023 and order on sentence dated 20.09.2023 passed by Court of Ld. Metropolitan Magistrate- 02 (NI Act), South East District in CC No. 631165/2016 titled Vinod Sachdeva Vs. Anil Andrews, whereby the appellant/ convict Anil Andrews was convicted of the offence punishable under Section 138 of Negotiable Instruments Act and was sentenced to a fine of Rs. 3,30,000/- to be paid as compensation to the complainant/ respondent. The amount of compensation is payable within 01 Month and in default of payment of fine, the appellant /convict has to undergo simple imprisonment for two months. For the sake of convenience, the appellant herein shall be referred to as 'accused' and the respondent herein shall be referred to as 'complainant'.
BRIEF FACTS
2. The brief facts of the case are correctly noted by the Ld. Trial Court in the following fashion:
1. The complainant has filed the present complaint under section 138/141 of Negotiable Instruments Act, 1881, (NI Act) against the accused on the averments that accused is known to the complainant from the past 20 years and in the last week of November, 2014, the accused had approached the complainant and requested him for a loan of Rs. 2,00,000/- accordingly, in the first week of December 2014, the complainant gave a loan of Rs.2,00,000/- to the accused and the same was to be repaid Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 2/25 by 07.02.2013.
2. As per the complaint, the accused in discharge of his liability, issued a cheque bearing No. 000022, dt. 20.02.2015, amounting to Rs. 2,00,000/-, drawn on HDFC Bank, Yusuf Sarai, New, Delhi - 110016 in favour of the complainant ('Cheque in question').
3. Upon presentment, the cheque in question was returned unpaid on the ground of funds insufficient vide cheque return memo dated 28.02.2015.
4. The Complainant sent the legal demand notice dated 19.03.2015 through speed post on 21.03.2015 at the address of the accused. Hence, despite the service of the legal demand notice, the accused failed to make the payment within the stipulated period, hence, the present case was filed by the complainant.
TRIAL
3. Vide order dated 07.05.2015, the Ld. Metropolitan Magistrate summoned the accused to face trial u/s 138 NI Act. On 04.10.2018, a notice u/s 251 Cr.P.C. was framed upon the accused to which he pleaded not guilty and claimed trial. He stated that he is the signatory of the impugned cheque and the proprietor of Diamond Infrastructure. He further stated that the impugned cheque was given in respect of the transaction pertaining to payment of house tax and water tax for the property purchased by him from the complainant. The complainant did not clear those dues and he has no liability towards the cheque in question.
4. During trial, the complainant examined himself as CW1 and deposed Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 3/25 in line with the case set up against the accused. Statement of accused was recorded u/s 313 Cr.P.C. In the said statement the accused claimed that he purchased Two shops from the complainant in the year 2011 and after the purchase of the shops he received "dues" notice from Electricity, Water and House Tax Department, and he deposited around 1.90 Lakhs in the year 2013 after settlement. Still there was an outstanding of Rs. 2,00,000/-. He further claimed that he gave the cheque in question for the purpose of security, after filling all the particulars, on the condition that the complainant shall return the same when he deposits the outstanding amount of Rs. 2,00,000/- But thereafter, some differences arose between him and the complainant as the complainant refused to pay Rs. 2 lakhs. As such, he had intimated his bank to stop payment of the cheque in question. He also admitted the receipt of Legal Notice. The accused Anil Andrews lead defence evidence on record, wherein he examined one Vijender Pal Singh, ASO, Delhi Jal Board as DW-1 and One Amit Pandey, Data Operator, Sub- registrar Office-V Kalkaji, Mehrauli as DW-2. The witness DW-1 produced a report to the effect that no water connection was sanctioned with respect to the property/shop No. 734 & 732, Defence Colony, New Delhi. DW-2 produced the copies of Sale Deeds pertaining to Shop No. 234 and 232, Defence Colony during the course of Trial. Upon the conclusion of trial, accused was convicted for the commission of offence punishable u/s 138 NI Act vide the impugned judgment dated 01.09.2023.
GROUNDS OF APPEAL
5. The grounds cited by the accused against the impugned judgement are as under :
a). A. Because the impugned judgment is based upon the Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 4/25 erroneous consideration and misappreciation of evidence and law and hence, liable to be set aside in Appeal.
b). Because impugned judgment is liable to be set aside in Appeal as the Respondent/Complainant has failed to establish the guilt of the appellant accused much less beyond reasonable doubt.
c). Because the Ld. Trail Court has erroneously passed the impugned judgment mis- appreciating the provisions of law as contained under Section 138 of NI Act, 1881 as a post dated cheque may be issued under two circumstances. Under first circumstance, it may be issued for a debt in present but payable in future. Under second circumstances it may be issued for a debt which may become payable in future upon the occurrence of the contingent event. A post dated cheque for a debt due but payment postponed at a future debt would attract Section 138 of NI Act, 1881 but when there stands no debt and no liability to pay then in that circumstance 138 NI Act is not attracted.
d). Because the Ld. Trial Court has failed to appreciate that very ingredients of Section 138 NI Act which clearly states as mention below:
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 dishonour 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 provisions of Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 5/25 this Act, be punished with imprisonment for [a term which may be extended 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" legally enforceable debt or other liability.
e). BECAUSE the learned Trial Court failed to appreciate the bonafides of the Appellants. That the Trial Court at the very first instance have over looked the statement made u/s 251 Code of Criminal Procedure 1973 where at the very outset the Appellant in his defence has stated that the said cheque was issued for the payment of electricity, house tax and water dues by the appellant as the same was the responsibility of the respondent but the same was taken by the appellant and to gain the confidence and trust of the respondent issued cheque in his favour as a security and took the liability to clear the dues due on the respondent. Thus this itself confirms that the respondent Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 6/25 lacks the very ingredient of S.138 of NI Act which mandates that any cheques drawn, for the discharge, in whole or in part, of any debt or other liability, is not attracted in the present case and by no stretch of imagination any story created and prepared by the respondent / complainant can be treated as legally existing debt.
f). Because the Ld. Trail Court passing the impugned judgment has further failed to appreciate that S.10 of NI Act, 1881 describes that the payment in due course, means payment in accordance with the apparent tenor of instrument in good faith and without negligence and which do not afford a reasonable ground for believing that he is not entitled to receive payment of the amount therein mentioned. The said provision has been misinterpreted by the Ld. Trial Court and if read together with the deposition of the CW1 wherein he has stated said cheque was undated and filled by the respondent himself.
g). Because the Ld. Trial has further erroneously passed the impugned judgment as the presumption under Section 139 NI Act, 1881 is only in favour of holder of cheque that the said cheque has been issued for discharge of any debt or other liability and the existence of any legally recoverable debt is not a matter of presumption u/s 138 of NI Act (Reference may kindly be had from (2008) 4 SCC 54, Krishna Janardhan Vs. Dattatraya G. Hedge (2008) 4 SCC 54).
h). Because the impugned judgment is further contrary to the provisions of law as for rebuttal of presumption against Appellant u/s 139 NI Act, stepping into the witness box by the accused is not imperative. Other principles of legal jurisprudence i.e. presumption of innocence as a human right and the doctrine of reverse burden introduced by S.139 of NI Act, should be delicately balanced and balancing acts would Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 7/25 largely depend upon the factual matrix of each case.
i). Because the Ld. Trail has erroneously passed the judgment without appreciating that when an accused has to rebut the presumption u/s 139 of NI Act, 1881, the standard of proof for doing so is that of preponderance of probabilities and if the accused is able to establish a probable defence which creates doubt about the existence of legally enforceable debt or liability, the prosecution can fail. The accused can rely on the material submitted by the Complainant in order to raise such a defence. (Reference may kindly be had from (2010) 13 SCC 375 Laxmi Dyechem Vs. State of Gujarat & others and Rangappa vs. Sh. Mohan (2010) 11 SCC 441 and (1999) 3SCC 35 Bharat Barrel and Drum Manufacturing Company vs. Amin Chand Pyare Lal.)
j). Because Trail Court has further failed to appreciate that once the presumption arising in favour of the Complainant in terms of S.118 NI Act, 1881 is rebutted by the accused, the onus to prove his case beyond reasonable doubts shifted to the Complainant and since Complainant has failed to prove that the cheque in question was issued by accused in discharge of any legally enforceable liability and for consideration, the accused is liable to be acquitted in as much as no Complaint u/s 138 of NI Act, 1881 is maintainable on account of dishonor of the said cheques. (Reference may kindly be had from A.I.R. 2009 SC 1518, M/S Kumar Export vs. M/S Sharma Carpets and 2006 JCC (NI) 198, M.S. Narayana Menon @Mani vs. State of Kerela and 2013 VIII A.D. (Delhi) 465, Satish Kumar vs. State N.C.T of Delhi.)
k). Because the Ld. Trail Court has further failed to appreciate that the Hon'ble Supreme Court has held that presumption both under Section 118 (a) and 139 are rebuttable in nature and Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 8/25 what is needed is to raise a probable defence for which it is not necessary for the accused to disprove the existence of consideration by way of direct evidence and even the evidence adduced on behalf of the Complainant can be replied upon (Reference may kindly be had from (2006) 6 SCC 39 Ms. Narayan Menon vs. State of Kerela and (2005) 12 SCC 1 Union of India Vs. Pramod Gupta.)
l). Because the Ld. Trail Court has further failed to appreciate that an accused for discharging the burden of proof placed upon him may discharge his burden on the basis of material already brought on record.
m). BECAUSE The Ld. Trial Court failed to appreciate the fact the respondent as duly denied any transactions between the parties for sale and have lied on oath.
n). BECAUSE Ld. Trail Court had pre-determined mind and thus never wanted to follow the principles of audi alterum partem and natural principle of justice.
o). BECAUSE the Ld. Trail Court failed to appreciate the fact that the source described by the respondent in the cross examination was not supported by the documentary evidence.
p). Because the impugned judgment and sentence is liable to be set aside in Appeal as the Complainant has miserably failed to prove the guilt of the appellant as the guilt is to be proved beyond all reasonable doubts and the standard of proof so as to proof the defence on part of accused is preponderance of its probabilities.
q). Because the Ld. Trial Court has failed to appreciate the provisions regarding "proved" as in S.3 of the Indian Evidence Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 9/25 Act made applicable to the provisions of S.118 and S.139 of the NI Act, 1881. The use of the phrase "until for contrary is proved" in Section 118 of the NI Act, 1881 and use of the word "unless the contrary is proved" in S.139 of the NI Act, 1881 read with definitions of "may presume" and shall presume" as in S.4 of the Indian Evidence Act, crystallized that presumptions to be raised under both the provisions is rebuttable. It only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when party has produced evidence fairly and reasonably trending to show that the real fact is not as presumed, the purpose of the presumption is over.
r). Because the Ld. Trial Court has further failed to appreciate that one of the cardinal principles of administration of justice in criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence to show him to be guilty of the offence. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden the court cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumption arise regarding the guilt of the accused but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise statutory presumption and it would be in such cases for the accused to rebut the presumption. The onus even in such cases is not as heavy as it normally upon the prosecution to prove the guilt of the accused. If some material is brought on record, consistent with the innocence of the accused which may resonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal (Reference may be had from Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 10/25 (1973) 2 SCC 808 Kali Ram vs. State of H.P).
s). Because, the respondent has misused the cheques and filed bogus and fabricated complaint case against the appellant.
6. It is prayed that the impugned judgment dated 01.09.2023 and the order on sentence dated 20.09.2023 may be set aside.
7. On the other hand, Ld. Counsel for the complainant has argued that the accused has been correctly convicted by Ld. Metropolitan Magistrate and an appropriate sentence has been imposed upon him. He prays for dismissal of the appeal.
DISCUSSION
8. This Court has considered the oral submissions as well as the records.
9. Recently, the Hon'ble Supreme Court was pleased to define the contours of the law relating to the provision u/s 138 of Negotiable Instruments Act in Rajesh Jain Vs. Ajay Singh 2023 INSC 888. The relevant extracts of the observations are reproduced below for ready reference:-
Section 138 of the NI Act - Necessary Ingredients
25. Essentially, in all trials concerning dishonour of cheque, the courts are called upon to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act.
26. In Gimpex Private Limited vs. Manoj Goel Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 11/25 (2022) 11 SCC 705 , this Court has unpacked the ingredients forming the basis of the offence under Section 138 of the NI Act in the following structure:
(1) The drawing of a cheque by person on do account maintained by him with the banker for the payment of any amount of money to another from that account;
(i) The cheque being drawn for the discharge in whole or in part of any debt or other liability;
(iii) Presentation of the cheque to the bank arranged to be paid from that account,
(iv) The return of the cheque by the drawee bank as unpaid either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount
(v) A notice by the payee or the holder in due course making a demand for the payment of the amount to the drawer of the cheque within 30 days of the receipt of information from the bank in regard to the return of the cheque; and
(vi) The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days of the receipt of the notice.
27. In K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7 SCC 510 this Court had summarised the constituent elements of the offence in fairly similar terms by holding:
Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 12/25 "14. The offence Under Section 138 of the Act can be completed only with the concatenation of a number of acts.The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (3) failure of the drawer to make payment within 15 days of the receipt of the notice."
28. The five (5) acts as set out in K Bhaskaran's case (supra) are, generally speaking, matters of record and would be available in the form of documentary evidence as early as, at the stage of filing the complaint and initiating prosecution. Apart from the above acts, it is also to be proved that cheque was issued in discharge of a debt or liability (Ingredient no. (ii) in Gimpex's case). The burden of proving this fact, like the other facts, would have ordinarily fallen upon the complainant. However, through the introduction of a presumptive device in Section 139 of the NI Act, the Parliament has sought to overcome the general norm as stated in Section 102 of the Evidence Act and has, thereby fixed the onus of proving the same on the accused. Section 139, in that sense, is an example of a reverse onus clause and requires the accused to prove the non-existence of the presumed fact, i.e., that cheque was not issued in discharge of a debt/liability.
Burden of Proof and Presumptions: Conceptual Underpinnings Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 13/25
29. There are two senses in which the phrase 'burden of proof' is used in the Indian Evidence Act, 1872 (Evidence Act, hereinafter). One is the burden of proof arising as a matter of pleading and the other is the one which deals with the question as to who has first to prove a particular fact. The former is called the 'legal burden' and it never shifts, the latter is called the 'evidential burden' and it shifts from one side to the other. [See Kundanlal v. Custodian Evacuee Property (AIR 1961 SC 1316)]
30. The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party's case. If, at the conclusion of the trial a party has failed to establish these to the appropriate standards, he would lose to stand. The incidence of the burden is usually clear from the pleadings and usually, it is incumbent on the plaintiff or complainant to prove what he pleaded or contends. On the other hand, the evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; the burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be is adduced by either side (See Halsbury's Laws of England, 4th Edition para 13). While the former, the legal burden arising on the pleadings is mentioned in Section 101 of the Evidence Act, the latter, the evidential burden, is referred to in Section 102 thereof.
Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 14/25 [G.Vasu V. Syed Yaseen (AIR 1987 AP139) affirmed in Bharat Barrel Vs. Amin Chand [(1999) 3 SCC 35] ]
31. Presumption, on the other hand, literally means "taking as true without examination or proof". In Kumar Exports v. Sharma Exports (2009) 2 SCC 513, this Court referred to presumption as "devices by use of which courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence."
32. Broadly speaking, presumptions are of two kinds, presumptions of fact and of law. Presumptions of fact are inferences logically drawn from one fact as to the existence of other facts. Presumptions of fact are rebuttable by evidence to the contrary. Presumptions of law may be either irrebuttable (conclusive presumptions), so that no evidence to the contrary may be given or rebuttable. A rebuttable presumption of law is a legal rule to be applied by the Court in the absence of conflicting evidence (Halsbury, 4th Edition paras 111, 112]. Among the class of rebuttable presumptions, a further distinction can be made between discretionary presumptions ('may presume') and compulsive or compulsory presumptions ('shall presume'). [G. Vasu V. Syed Yaseen (Supra)]
33. The Evidence Act provides for presumptions, which fit within one of three forms: 'may presume' (rebuttable presumptions of fact), 'shall presume' (rebuttable presumption of law) and conclusive presumptions (irrebuttable presumption of law). The distinction between Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 15/25 'may presume' and 'shall presume' clauses is that, as regards the former, the Court has an option to raise the presumption or not, but in the latter case, the Court must necessarily raise the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved, [G.Vasu V. Syed Yaseen (Supra)] Section 139 NI Act-Effect of Presumption and Shifting of Onus of Proof
34. The NI Act provides for two presumptions: Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that 'unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability'. It will be seen that the 'presumed fact' directly relates to one of the crucial ingredients necessary to sustain a conviction under Section
138.
35. Section 139 of the NI Act, which takes the form of a 'shall presume' clause is illustrative of a presumption of law. Because Section 139 requires that the Court 'shall presume' the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 16/25 established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase 'unless the contrary is proved'.
36. The Court will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel Vs. Amin Chand] [(1999) 3 SCC 35]
37. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that 'a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar (2019) 4 SCC 197]. Therefore, mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption.
38. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 17/25 transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.
39. John Henry Wigmore12 on Evidence states as follows:
"The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption 'disappears as a rule of law and the case is in the Jury's hands free from any rule."
40. The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non- existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of 'preponderance of probabilities', similar to a defendant in a civil proceeding. [Rangappa vs. Mohan (AIR 2010 SC 1898)]
41. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words 'until the contrary is proved' occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 18/25 not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513]25
42. In other words, the accused is left with two options. The first option-of proving that the debt/liability does not exist- is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non- existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused's case may be even fifty one to forty nine and arising out of the entire circumstances of the case, which includes: the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his 313 statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was 'no debt/liability'. [Kumar Exports and Sharma Carpets, (2009) 2 SCC 513]
43. The nature of evidence required to shift the Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 19/25 evidential burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact.
44. The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. In Kundanlal's case- (supra) when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non- existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Section 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well.
45. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 20/25 notice or the affidavit-evidence, the burden shifts to the complainant and the presumption 'disappears' and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa vs. Mudibasappa, AIR 2019 SC 1983; See also, Rangappa vs. Sri Mohan (2010) 11 SCC 441].
Existence of Statutory Presumptions
10. Trial court record reflects that at the time of framing of notice u/s 251 Cr.P.C the accused admitted that the cheque in question belongs to him and also bears his signatures. The accused also admits the handing over of the cheque in question to the complainant albeit for a different purpose then what is claimed by the complainant. Admittedly, the cheque in question was dishonored upon being presented for encashment by the complainant. A legal notice was then sent by the complainant to the accused demanding the amount due under the cheque in question. Service of the said legal notice was denied by the accused at the time of framing of notice U/s 251 Cr.PC. However, at the time of recording of his statement U/s 313 Cr.PC, the accused admitted the receipt of said legal notice. All the above facts are sufficient to invoke the presumptions available to the complainant u/s 118 NI Act and u/s 139 NI Act. As such, the evidential burden stood Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 21/25 transferred upon the accused to prove that the cheque in question was not issued towards discharge of any liability. Until the said evidential burden is discharged by the accused, the presumptions available against the accused u/s 118 NI Act and u/s 139 NI Act will have to be assumed to be true, without expecting the complainant to do anything further. The said burden could be discharged by the accused either by leading defence evidence to conclusively establish that the cheque was not issued in discharge of a debt / liability or by proving the non existence of debt / liability on preponderance of probabilities by referring to the particular circumstances of the case. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence. Once the accused produces such evidence, the burden shifts back to the complainant and the above mentioned presumptions disappear.
Rebuttal of Statutory Presumptions
11. Now, the question left to be decided is whether the said presumptions have been successfully rebutted by the accused or not. In order to adjudicate the same, this Court must deal with the facts adduced on record by the accused during the cross-examination of complainant or during the defence evidence.
12. The said adjudication requires an understanding of the respective stands taken by the parties. As per complainant, the cheque in question was issued by the accused in favour of the complainant in order to discharge his liability towards repayment of the loan of Rs. 2 Lakhs availed by him ( from the complainant). On the other hand, the accused denies any such liability and claims, in response to notice framed upon him u/s 251 Cr.P.C, that he is the signatory of the impugned cheque and the proprietor of Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 22/25 Diamond Infrastructure. He further claims that the impugned cheque was given in respect of the transaction pertaining to payment of house tax and water tax for the property purchased by him from the complainant. The complainant did not clear those dues and he has no liability towards the cheque in question. In his statement recorded U/s 313 Cr.PC, the accused claimed that he purchased Two shops from the complainant in the year 2011 and after the purchase of the shops he received "dues" notice from Electricity, Water and House Tax Department against which he deposited around 1.90 Lakhs in the year 2013 after settlement. Still there was an outstanding of Rs. 2,00,000/-. He further claims that he gave the cheque in question for the purpose of security after filling all the particulars on the condition that the complainant, shall return the same when he deposits the outstanding amount of Rs. 2,00,000/-. But thereafter, some differences arose between him and the complainant, as the complainant refused to pay Rs. 2 lakhs. As such he had intimated his bank to stop the payment of the cheque in question.
13. Now we delve into the testimony of complainant, who examined himself as CW-1. CW-1 deposed in line with the facts mentioned in the afore-going paragraphs. He was cross-examined at length on behalf of the accused. However, he did not betray any signs of falsity or untruth, nor any inconsistency has been noticed in his oral testimony. CW1 has withstood the test of cross-examination. Accused could not extract any admission from CW1 favoring his defence. That apart, the accused made relevant admissions during the course of cross-examination of CW-1, which admissions corroborate the case of the complainant in all material aspects. It would be appropriate to reproduce the said admissions made during the cross-examination of complainant hereinafter for convenience of all. The Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 23/25 relevant portions of cross-examination of complainant / CW-1 are as under:-
" I gave loan of Rs. 2,00,000/- to accused at the end of the year 2014. I do not remember the exact date. Accused assured me that he will return the loan in 2-3 months................. I gave the loan in cash. I do not remember the denomination.............At the time of giving of the loan my source of income was from my business of Marketing Consultant at that time...............(CW-1 Vinod Sachdeva in his cross-examination dated 23.07.2019 on behalf of accused.)
14. It is apparent from the above extracts of cross-examination of the complainant / CW-1 that the accused has admitted that he (accused) availed a loan of Rs. 2,00,000/- from the complainant. The above admission is binding upon the accused in view of the observations made by Hon'ble Supreme Court in Balu Sudam Khalde and Anr. Vs. State of Maharashtra 2023 SCC Online SC 355. The said admission is sufficient to discard the claim of the accused that he never availed any loan from the complainant. Admittedly, the accused never bothered to put any suggestion to CW-1 w.r.t his own defence narrated in the aforegoing paragraphs. Consequently, it has to be held that the accused has not been able to rebut the legal presumptions available in favour of the complainant during the cross- examination of complainant.
15. Now this court proceeds to assess the defence evidence led on record by accused. The defence witnesses examined by the accused merely Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 24/25 produced certain documents on record. The said documents do not substantiate the defence of the accused in any manner whatsoever. Nothing else has been brought on record by accused to sustain his defence. Having ruled so, this Court holds that the accused has not been able to rebut the statutory presumptions operating against him through the defence evidence either.
DECISION
16. Apparently, all the statutory presumptions available to the complainant remain unrebutted and intact. All the ingredients of the offence punishable u/s 138 NI Act are available against the accused. Consequently, it has to be held that accused was correctly convicted u/s 138 NI Act by the Ld. Metropolitan Magistrate concerned. For the afore-going reasons, the impugned judgment dated 01.09.2023 is hereby affirmed and upheld.
SENTENCE
17. Admittedly, the cheque in question was issued for a payment of Rs. 2,00,000/- in the year 2014. Admittedly, the complainant has been running from pillar to post to recover the said amount. So far as the aspect of sentencing by Ld. Trial Court is concerned, I am of the view that Ld. Trial Court has already taken quite a lenient view while sentencing the accused. As such, the sentence imposed by the Ld. Trial Court does not call for any interference. Benefit of Section 428 Cr.P.C. be also given to the accused.
18. Appeal filed by accused therefore stands disposed of in above Digitally signed terms. by LOVLEEN Date: Announced & Dictated in the LOVLEEN 2024.08.03 16:54:45 Open Court today i.e. 03.08.2024 +0530 (Lovleen) ASJ-03 (South East) Saket Courts, Delhi Crl. Appeal No: 317/2023 ANIL ANDREWS. Vs VINOD SACHDEVA 25/25