Delhi District Court
Amreek Kaur vs Akash Guglani on 28 November, 2023
IN THE COURT OF MR. SARTHAK PANWAR,
METROPOLITAN MAGISTRATE09, NI ACT, SOUTH
WEST, DWARKA, DELHI
In Re:
CNR No. DLSW020077942018
CC No. 6482/2018
Amreek Kaur,
W/o Shri Rajinder Singh,
WZ24, Second Floor,
Gali No. 15, Tilak Nagar,
New Delhi 110018. ............ Complainant
Versus
Sh. Akash Guglani
S/o Sh. G.L. Guglani,
R/O H. No. 9/66, Shyam Block,
Kailash Nagar, Gandhi Nagar,
Delhi - 110031. ............ Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
(3) Date of institution of case : 08.02.2018
(4) Date of conclusion of arguments: 21.11.2023
Amreek Kaur vs Akash Guglani
CC No.6482 of 2018 28.11.2023 Page no. 1 of 28
(5) Date of Final Order : 28.11.2023
(6) Final Order : Conviction
JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act').
2. Brief facts relevant for the decision of the case are as under: The complainant averred in her evidence by way of affidavit that the accused was in dire need of money and asked the son of the complainant for a friendly loan of Rs. 10,00,000/ for a period of two years and son of the complainant told the accused that he was not having this much amount with him and he could only give Rs.3/ 4 lakhs to the accused. The accused requested the son of the complainant to arrange the money from some other person. The complainant further averred that keeping in view the relation with the accused the son of complainant talked to his parents i.e. complainant and her husband who initially refused to give any loan but when persuaded by the son of the complainant they agreed to give loan to the accused Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 2 of 28 subject to signing the undertaking / promissory note. Complainant further averred that thereafter her son arranged Rs.3 lakhs from his own pocket, Rs.3.5 lakhs from husband of complainant and Rs.3,20,000/ from the complainant and gave Rs.9,70,000/ as a friendly loan in 1st week of March 2016. The accused also executed promissory notes with receipts in lieu of the loan given by the complainant and her family. Thereafter, accused to clear his liability issued cheque bearing No.111168 for a sum of Rs.3,00,000/ dated 15.11.2017 in the name of son of complainant, another cheque bearing No.111169 for a sum of Rs.3,50,000/ dated 23.11.2017 in the name of husband of complainant and one more cheque bearing No.111171 (cheque in question) for a sum of Rs.3,20,000/ dated 11.12.2017 in the name of complainant. Thereafter, cheque in question was presented for encashment by the complainant in her bank i.e. Kotak Mahindra Bank and the same was returned dishonoured with remarks payment stopped by drawer, vide return memo dated 14.12.2017. Thereafter legal notice dated 26.12.2017 was sent via registered speed post to the accused by the complainant and despite service of aforesaid notice, no payment of cheque amount was made within 15 days from date of receipt of legal notice by the accused. Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and convicted according to law.
Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 3 of 28
3. In her presummoning evidence, complainant examined herself via affidavit Ex. CW 1/1. She reiterated the contents of the complaint and further relied upon the other documents already placed on record i.e. promissory note and receipt as Ex. CW 1/A. Original cheque in question as Ex. CW1/B, cheque returning memo as Ex. CW1/C, Copy of legal demand notice as Ex. CW1/D, Original receipt of postal department Ex. CW 1/E and tracking report is Ex. CW 1/F.
4. Upon appreciation of presummoning evidence, accused was summoned for an offence punishable under Section 138 of the Act. Thereafter, notice under Section 251 Cr.P.C. for the offence u/s 138 Negotiable Instrument Act was framed upon him to which he pleaded not guilty and claimed trial. He further admitted his signatures on cheque in question, however, denied filling of remaining details on the cheque in question. He further denied receiving of legal demand notice. He further stated that he do not know the complainant and he had not taken any loan from her. He further stated that he had kept the blank signed cheques with him which includes cheque in question and his cheques were misplaced in March 2016, due to which he stopped payment of those cheques. He further stated that cheque in question was misused by the complainant. Thereafter, matter was listed for Complainant evidence and despite being given several last and final opportunities, accused failed to cross Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 4 of 28 examine the complainant and ultimately accused's right to cross examine the complainant was treated as Nil, opportunity given by Ld. Predecessor of this Court vide order dated 02.12.2021and vide separate statement of complainant, Complainant evidence was closed and matter was listed for statement of accused.
5. Thereafter, statement of accused under Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to him and accused stated that his cheques were lost due to which he instructed his bank to stop payment and the cheques which were lost were blank signed cheques and the cheques included the cheque in question in present case. He further stated that he never received legal notice sent by the complainant, however, he admitted that the legal notice bears his correct address and he is living on the same address since childhood (after seeing the legal notice). He further stated that he do not know the complainant at all and he do not know how the cheques fell in the hands of the complainant and complainant has misused the cheque in question. On being asked whether he wants to lead defence evidence, accused stated in negative and matter was listed for final arguments. Thereafter, opportunity of accused to crossexamine the complainant was reopened by the Ld. Appellate Court and in compliance of that order complainant as CW 1 was examined, crossexamined and discharged and matter was again listed for final arguments.
Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 5 of 28
6. In his final arguments, Ld. Counsel for the complainant stated that accused has admitted his signatures on the cheque in question at the time of framing of notice u/s 251 Cr.P.C as well as in his statement u/s 313 Cr.P.C. Ld. Counsel for the complainant further argued that story of the accused that accused do not know the complainant at all and that accused has lost his blank signed cheques which included cheque in question is purely baseless and concocted story in order to save himself from the clutches of law. It was further averred by the Ld. Counsel for the complainant that accused has failed to raise any probable defence to disprove the case of the complainant and has failed to rebut the presumption u/s 139 r/w section 118(a) of the Act, therefore accused is liable to be convicted u/s 138 of the Negotiable Instruments Act.
7. Per contra, Ld. Counsel for the accused reiterated the version of the accused taken by him in answer to the notice framed u/s 251 Cr.P.C as well as in his statement u/s 313 Cr.P.C that the accused do not owe any legal debt to the complainant as the accused do not know the complainant at all and the accused's blank signed cheques were lost which included the present cheque in dispute and accused gave instructions to his bank to stop payment. Ld. counsel for the accused further argued that accused gave the blank signed promissory note as well as the Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 6 of 28 blank signed cheque in question to one Karambir who is relative of the complainant and was engaged in committee business and has not given the same to the complainant. Ld. Counsel for the accused has further argued that complainant has not mentioned about the present transaction in her ITR statement. She further submitted that case of the complainant is inherently weak and evidence lead by the complainant is not sufficient to establish the guilt of the accused. She further submitted that complainant has failed to prove her case beyond reasonable doubt and accused is liable to be acquitted u/s 138 of Negotiable Instruments Act. After the conclusion of final arguments, Ld. Counsel for accused has filed the copy of citations of following cases i.e. judgment passed by Hon'ble Supreme Court of India in case titled as (i) Rajesh Jain vs Ajay Singh SLP Crl. No. 12802 of 2022, (ii) Basalingappa vs. Mudibasappa Crl. Appeal No. 636 of 2019,
(iii) Dashrath Rupsingh Rathod vs. State of Maharasthra & Anr. Crl. Appeal No. 2287 of 2009 and (iv) judgment passed by Ld. MM Ms. Anam Rais Khan in case titled as Rajneesh Kumar vs. Dr. Sudhir Bajaj and Dr. Sunita Bajaj Complaint Case No. 7762 of 2018. The aforesaid judgments have been perused and considered at the time of writing of the judgment.
8. I have gone through the entire record and carefully perused the evidence led by both the parties complainant as well Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 7 of 28 as the accused but before appreciating the facts of the case at length for arriving at any conclusion, let the relevant position of the law be discussed first : Before finding the conviction of the accused u/s 138 of the Negotiable Instruments Act, it has to be established by the complainant cumulatively that :
(i) the cheque in question was issued by the accused in favour of the complainant in discharge of legally enforceable liability;
(ii) the cheque was presented before the bank for encashment within three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(iii) a demand is made in writing by the payee or holder in due course by the issuance of a notice in writing to the drawer of the cheque within thirty days of the receipt of information from the bank of the return of the cheques; and
(iv) there is failure of the drawer to make the payment of the cheque amount to the payee or the holder in due course within fifteen days of the receipt of the notice.
This legal position was discussed by the Hon'ble Supreme Court of India in case titled as MSR Leathers vs. S. Palaniappan (2013) 1 SCC 177, wherein it was held that, "6........ The proviso to Section 138, however, is all important and stipulates three distinct conditions precedent, which Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 8 of 28 must be satisfied before the dishonour of a cheque can constitute an offence and become punishable. The first condition is that the cheque ought to have 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. The second condition is that the payee or the holder in due course of the cheque, as the case may be, ought to make 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. The third condition is that the drawer of such a cheque should have failed to make 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. It is only upon the satisfaction of all the three conditions mentioned above and enumerated under Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 9 of 28 the proviso to Section 138 as clauses (a),
(b) and (c) thereof that an offence under Section 138 can be said to have been committed by the person issuing the cheque.
This Court shall now examine if the aforesaid four ingredients as described in the forgoing paragraph have been duly satisfied in this case or not.
9. That whether the cheque in dispute was presented within the period of its validity or not has not been disputed by the accused at any stage of trial. Accordingly, condition no. (ii), as above stands satisfied.
10. Accused has denied receiving of legal demand notice i.e. Ex. CW 1/D from the complainant in answer to the notice framed u/s 251 C.P.C. as well as in his statement u/s 313 Cr.P.C. But the accused has admitted in his statement u/s 313 Cr.P.C that the legal notice bears his address and he is living on the same address since childhood ( after seeing the legal notice). At this stage, it would be appropriate to have regard to Section 27 of General Clauses Act, 1897 which provides as : Where Central Act or regulations made after commencement of this Act authorizes or requires any document to be served by post, Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 10 of 28 whether the expression serve or either the expressions give or sent or any other expressions is used, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in ordinary course of post.
Therefore, where the payee sends the statutory legal demand notice by prepaying and by properly addressing the drawer through registered post, it would raise a presumption of service unless contrary is proved by the drawer. Further, the position of law in this regard is no longer resintegra and even if the version of the accused is believed that no legal notice was served upon him then also accused cannot take any advantage on account of nonservice of statutory legal notice as he had the due notice of the pendency of present complaint case against him and despite which he had failed to make payment of cheque amount in question to the complainant. Reliance in this regard can be placed on the judgment of Hon'ble Supreme Court of India, in case of C.C. Alavi Haji vs. Palapetty Muhammed, (2007) 6 SCC 555, wherein it has been held as follows: " It is also to be borne in mind that the requirement of giving of notice is a clear Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 11 of 28 departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act.
Accordingly, conditions No.(iii) and (iv) as above also stands satisfied as it is matter of record that accused had due notice of the pendency of the present complaint case and despite Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 12 of 28 which he failed to make the payment of cheque in question to the complainant.
11. It is now only remains to be seen whether the accused issued the cheque in question i.e. Ex. CW 1/B in favour of the complainant in order to discharge his legally enforceable liability or not.
12. Negotiable Instrument Act, 1881 raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case, as soon as the execution of cheque is proved. Firstly, under Section 118 (a) N.I. Act, with respect to the consideration that every negotiable instrument was made or drawn for consideration and when such instrument has been accepted, transferred, negotiated or endorsed was accepted, endorsed, negotiated or transferred for consideration. Secondly, a presumption under section 139 N.I. Act that it shall be presumed that the holder of cheque received the cheque for discharge, in whole or in part of any debt or other liability unless contrary is proved.
Section 118 (a) of the N.I. Act provides :
"Presumptions as to negotiable instruments. --Until the contrary is proved, the following presumptions shall be made: of consideration --that every negotiable instrument was made or drawn for consideration, and that every such Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 13 of 28 instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
Section 139 of the N.I. Act further provides as follows : "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."
However, both the aforesaid presumptions are rebuttable in nature as held by Hon'ble Supreme Court of India in case titled as Basalingappa Vs. Mudibasappa, Crl. Appeal No.636 of 2019, (2019) 5 SCC 418: The same is produced as under :
23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 14 of 28 raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence,Section 139 imposed an evidentiary burden and not a persuasive burden.
13. As per the ratio laid down by Hon'ble Supreme Court of India in the above mentioned Judgment, the presumptions u/s 118(a) read with Section 139 of the Act has to be compulsorily raised against the accused once execution of cheque by the accused is either admitted by him, or is proved by the complainant, and thereafter the burden is shifted upon accused to prove otherwise. These presumptions shall be rebutted only when the contrary is proved by the accused i.e. the cheque was not issued for any consideration, or in discharge of any debt or liability.
In the instant case, accused has admitted his signature on the cheque in question, in answer to notice framed u/s 251 Cr.P.C as well as in his statement u/s 313 Cr.P.C. Reference in this regard can also be made to judgment of the apex Court in Rangappa vs Mohan AIR 2010 SC 1898, that " once the cheque relates to the account of the accused and he accepts and admits the signature on the said Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 15 of 28 cheque, then initial presumption as contemplated u/s 139 of the Negotiable Instrument Act has to be raised by the Court in favour of the complainant."
Also in the case of K. Bhaskaran vs. Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under: " As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability."
In view of the forgoing discussions, this Court is of the considered opinion that a presumption u/s 139 r/w section 118(a) N.I. Act can duly be raised against the accused.
14. Since the above said two presumptions has been duly raised against the accused our next point of determination is that whether the accused is able to rebut the abovesaid presumptions or not. It is now a settled law that accused can rebut these presumption on a scale of standard of preponderance of probabilities, and to rebut these presumptions it is open for the Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 16 of 28 accused to rely upon the direct evidence lead by himself, or in the exceptional cases, the accused can also rely on materials submitted by the complainant i.e. (statutory notice, evidence etc.) during the trial in order to raise a probable defence. Reliance in this regard, can be placed on judgment of Hon'ble Supreme Court of India in case of Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC.
"....................................Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, ..., 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. "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused" (ibid). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs.
Presumptions are rules of evidence and do not conflict with the presumption of innocence, Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 17 of 28 because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non existence of the presumed fact.
In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists" . Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 18 of 28 reasonably probable, the standard of reasonability being that of the 'prudent man'."
15. In the backdrop of legal position as enunciated above, it is now to be examined by this Court that whether the accused on a scale of preponderance of probabilities has been able to rebut the presumptions which has been raised against him and in favour of the complainant, or has been able to demolish the case of the complainant to such extent so as to shift the onus placed upon the accused back again on the complainant, and if the Court comes to the conclusion that accused has not been able to rebut the presumptions raised against him by failing to bring on record direct evidence or by even failing to sufficiently perforate the case of the complainant, the complainant is entitled to a decision in his favour.
16. In light of the aforesaid legal position, this Court shall now first examine that whether the accused has been able to prove his defence in affirmative or not, by carrying out scrutiny of the evidence which has been led at the trial.
17. The principal defence which has been raised by the accused in the instant case is that the accused does not know complainant at all and that the accused had lost his blank signed cheques which included the present cheque in dispute and Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 19 of 28 accused do not know how the cheque in dispute fell into the hands of the complainant. However, this version of the accused cannot be sustained as it is not substantiated by any credible evidence on record. In fact in the present case, accused has not lead any evidence at all at any point of time. Further accused has taken a contradictory stand in his defence, on the one hand he has stated that he has lost the cheque in dispute but on the other hand he has given suggestion to the complainant in his cross examination to which complainant answered that " it is wrong to suggest that Aakash never gave cheque in dispute to me and gave the cheque in dispute to Karambir Singh" and has failed to provide any reasonable explanation as to how the same cheque which was lost at one point of time was given to Karambir later. Thus in absence of any credible evidence on record and in view of the above discussion, the statutory presumption u/s 139 r/w section 118 (a) of N.I. Act has not been rebutted in the instant case. Reliance in this regard can also be placed on the decision of Hon'ble Supreme Court of India in case of Sumeti Vij vs. Paramount Tech Fab Industries (Cr. A 292 of 2021) in which it has been held that "the statement of the accused recorded u/s 313 of the Code is not substantive evidence of defence, but only an opportunity to the accused to explain the incriminating circumstances appearing in the prosecution case of the accused".
Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 20 of 28
18. So far as it relates to the another defence version raised by the Ld. Counsel for accused at the time of final arguments that accused has given blank signed promissory note as well as blank signed cheque in question to one Karambir who is relative of the complainant and was engaged in committee business, same also cannot be sustained as in considered opinion of the Court, this version of the accused could only be proved by calling Karambir for his deposition as a witness but in the instant case, accused neither called Karambir as his defence witness nor got Karambir summoned through the Court. In fact in the present case, accused has not lead any evidence at all at any point of time. Thus, in view of the above discussion, this defence version raised by the accused is devoid of any merits and is nothing but an attempt to escape from his liabilities towards the complainant and from clutches of law at the belated stage of the trial.
19. Ld. Counsel for the accused in the final arguments also argued that the loan amount given by the complainant to the accused has not been mentioned by the complainant in her income tax returns and she further placed reliance on the statement of the complainant in her crossexamination as CW 1 in which complainant stated that she has not shown the present loan in her ITR. This argument raised by Ld. Counsel for the accused is devoid of any merits, as it is a trite law that provision of section 269SS of Income Tax Act, 1961, only prohibits taking Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 21 of 28 or accepting loan over Rs.20,000/ in cash and does not make the amount given in cash over and above Rs.20,000/ unrecoverable in proceedings u/s 138 of N.I. Act. The violation of same would attract penalty in the Income Tax Act 1961 and the same is a subject matter (dispute) between the Income Tax authority and the defaulter and the advantage of such violation cannot be taken by the borrower of the sum i.e. accused in the present case. Reliance in this regard can be placed upon the judgment of Hon'ble High Court of Delhi in case of Lekh Raj Sharma vs Yash Pal Gupta in Crl. L. P No. 567/2014 D.O.D 30.06.2015, in which it was held as under :
21. The finding that, as the amount of loan disbursed to the respondent was not shown in the balance sheet and ITR, the appellant could not be said to have proved its case beyond reasonable doubt, is also erroneous. In this regard, reference may be placed on the decisions of the Bombay High Court in:
i) Deelip Apte vs. Nilesh P. Salgaonkar & Anr., 2006 (6) BomCR 653, wherein the Court observed:
"The learned J.M.F.C. has also held against the Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 22 of 28 complainant the fact that the complainant had not shown the amount advanced by him in his income tax returns. I do not think that every person who gives friendly loans does in all cases show such loans in their income tax returns more so if they are payable on demand after short time. The learned acquitting J.M.F.C. entirely lost sight of the several presumptions which the law has enacted in favour of the complainant."
ii) Mr. Krishna P. Morajkar vs. Mr. Joe Ferrao, 2013 CRIJ (NOC) 572 Bombay (Decided on 19.07.2013), wherein the Court observed:
"The underlined observations do not disclose as to where can one find a prohibition on recovering amounts not disclosed in income tax returns. With utmost humility, I have to state that I have not come across any provision of Income Tax Act, which makes an amount not shown in the income tax returns unrecoverable. The entire scheme of the Income Tax Act is for ensuring that all amounts are accounted for. If some amounts are not accounted for, the person Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 23 of 28 would be visited with the penalty or at times even prosecution under the Income Tax Act, but it does not mean that the borrower can refuse to pay the amount which he has borrowed simply, because there is some infraction of the provisions of the Income Tax Act. Infraction of provisions of Income Tax Act would be a matter between the revenue and the defaulter and advantage thereof cannot be taken by the borrower. In my humble view, to say that an amount not disclosed in the income tax returns becomes irrecoverable would itself defeat the provisions of Section 138 of the Negotiable Instruments Act. Apart from the purpose of this Act, which has been outlined by the learned Single Judge in Shri Deelip Apte (supra) as well as in Sanjay Mishra (supra), it ought to be seen that the moment a person seeks to recover through a cheque an amount advanced in cash it gets amounted for in the system and the revenue authorities can keep a track of that and if necessary tax the person. To brand an amount which is not shown in Income Tax Act as unaccounted money would be too farfetched and, therefore, I am in respectful disagreement Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 24 of 28 with the observations in Sanjay Mishra (supra), which in fact amounts to reading an additional requirement in Section 138 of the Negotiable Instruments Act, and legislating that such amounts becomes irrecoverable. At the cost of repetition, for saying that an amount not disclosed in income tax returns cannot be legally recoverable liability, some provisions of law to that effect would have to be shown. Such provision was not noticed by me and even the learned Counsel for the respondent could not show any such provision to me."
In view of the aforesaid judgment violation of section 269SS of Income Tax Act 1961 would not render the transaction u/s 138 N.I. Act unenforceable and accordingly, the plea raised by the Ld. Counsel for accused is rejected.
20. Ld. Counsel for the accused in the final arguments also argued that the cheque in question was blank signed cheque which was misused by the complainant. However, in absence of any oral or documentary evidence in support as discussed previously, this argument does not hold any merit and is liable to be rejected. So far as it relates to the argument that cheque in question was a blank signed cheque, it is a settled proposition of Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 25 of 28 law that once the accused has admitted his signature on the cheque in question, he cannot escape from his liability and clutches of law on the ground that the contents on the cheque were not filled by him or contents on the cheque were filled in with some different ink or writing. It is also a trite law that once the cheque even if it is blank is signed and handed over to the holder, it means that person signing it has given implied authority to the holder of the cheque to fill up the remaining particulars on the cheque. This law is clearly laid down in Section 20 of Negotiable Instruments act which is as follows :
Inchoate stamped instruments.--Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in 1[India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.
In the case of Satish Jayantilal Shah Vs. Pankaj Mashruwala & anr., 1996 Cri.L.J.3099, it has been held that : "No law provides that in case of any Negotiable Instruments, Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 26 of 28 entire body has to be written by maker or drawer only."
In the case titled as Bir Singh vs Mukesh Kumar CRIMINAL APPEAL NOS.230231 OF 2019 (@ SLP(CRL ) NOS. 933435 OF 2018) , it has been held that : "......40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."
In the case of Moideen vs Johny, 2006 (2) DCR 421, it has been held that when a blank cheque is issued, the drawer gives an authority to a person to whom it is issued, to fill it at appropriate stage with necessary entries and to present it to the bank. In view of the forgoing discussion, since the accused has admitted that he has signed the cheque in question, he cannot be allowed to dispute the contents of the cheque in question. Hence, the accused has failed to rebut the presumption raised against him u/s 139 r/w 118(a) of Negotiable Instrument Act in present case.
21. In view of the above, this court is of the considered opinion that the accused could not raise a probable defence in order to rebut the presumption under section 139 r/w section 118(a) of Negotiable Instrument Act. The complainant has disclosed the existence of a legally enforceable debt or liability Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 27 of 28 vide the cheque in question, return memo, legal notice and other documents brought on record. There is sufficient material on record to conclude that complainant has successfully proved his case beyond reasonable doubt.
22. Accordingly, the accused Aakash Guglani is convicted for the offence under Section 138 of Negotiable Instruments Act, 1881.
23. Let the convict be heard on quantum of sentence.
24. Copy of Judgment be supplied to the convict free of cost.
ANNOUNCED IN THE OPEN COURT Digitally signed by TODAY On 28.11.2023 SARTHAK SARTHAK PANWAR PANWAR Date: 2023.11.28 14:54:35 +0530 (SARTHAK PANWAR) METROPOLITAN MAGISTRATE 09 (NI Act) SOUTH WEST DISTRICT, DWARKA NEW DELHI Amreek Kaur vs Akash Guglani CC No.6482 of 2018 28.11.2023 Page no. 28 of 28