Delhi District Court
Sh. Sanjay Kumar @ Sanjay Yadav vs Sh. Sagar Kukreja on 6 June, 2023
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-06, SOUTH DISTRICT, SAKET
COURTS, NEW DELHI
CRIMINAL APPEAL No. 48/2022
IN THE MATTER OF:
Sh. Sanjay Kumar @ Sanjay Yadav
S/o Shri Shyam Babu Yadav
R/o H.No. 10/1, Dakshinpuri,
Ambedkar Nagar, New Delhi-62
............ Appellant
Versus
Sh. Sagar Kukreja
S/o Shri Ishwar Kukreja
R/o K-19-C, Saket, New Delhi
Also At:
D-5, 3rd Floor, Hauz Khas,
New Delhi-110016
Also At:
N-16 A, Saket,
New Delhi-110017
............ Respondent
Instituted on : 23.02.2022
Reserved on : 22.05.2023
Pronounced on : 06.06.2023
CA No.48/2022 Sanjay Kumar @ Sanjay Yadav Vs. Sagar Kukreja Page No.1/ 16
Digitally signed
by SUNIL
SUNIL GUPTA
GUPTA Date:
2023.06.06
17:05:32 +0530
JUDGMENT
1. Vide this appeal, the appellant assails the judgment of conviction dated 18.01.2022 and order on sentence dated 24.01.2022, passed by Ld. MM-05 (NI Act), South District, Saket Courts, New Delhi, in case bearing CC No.4934/2020 titled as "Sagar Kukreja Vs. Sanjay Kumar", whereby he was convicted for the offence under section 138 Negotiable Instruments Act (hereinafter referred to as 'NI Act') and was sentenced to pay a fine of Rs.10,50,000/- payable to respondent as compensation. In default of payment of same, he was directed to undergo simple imprisonment for a period of 30 days.
2. Brief facts as per record are as under:-
A complaint alleging commission of offence under section 138 NI Act was filed by respondent against the appellant with the allegations that in the second week of January 2020, the appellant approached him for financial help to the tune of Rs.9,00,000/- and assured that he will return the same within 15 days. Respondent handed over a sum of Rs. 8,90,000/- to him in cash and stated that he can collect the remaining amount of Rs. 10,000/- the next day. As the amount of Rs. 8,90,000/- was lent as loan on friendly terms therefore no documents were executed. However, the appellant did not come the next day to collect the remaining amount. The amount was not so returned as assured so he contacted the respondent in first week of February, 2020 wherein extension of one month was sought by him which was granted. On being contacted again in first week of March,2020, the respondent avoided calls and after much persistence, he issued three post dated cheques bearing no. 166246 amounting to Rs.
CA No.48/2022 Sanjay Kumar @ Sanjay Yadav Vs. Sagar Kukreja Page No.2/ 16
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2023.06.06
17:05:40
+0530
3,00,000/- dated 08.03.2020, 166247 amounting to Rs. 3,00,000/- dated 12.03.2020 and 166248 amounting to Rs. 2,90,000/- dated 17.03.2020 drawn on Axis Bank Ltd. Push Vihar Branch, New Delhi-110062 in favour of the respondent. When the cheques were presented for encashment same were dishonored due to the reasons "Drawer Singature Differs" (cheques bearing no. 166246, 166247) and "Account Blocked" (cheque bearing no.
166248) vide return memos dated 13.03.2020 (cheques bearing no. 166246, 166247) and 18.03.2020 (cheque bearing no. 166248). On being approached by the respondent, the appellant requested him to present the cheques for encashment again in first week of May, 2020. Accordingly, the cheques in question were again presented for encashment on 02.05.2020 however, same were dishonoured vide returning memos dated 05.05.2020 with remarks "drawer signature differs". Legal demand notices dated 02.06.2020 was sent through courier to the appellant, however, despite service no payment was made. Hence, complaint for the offence u/s 138 NI Act was filed against him.
3. Record transpires that post summoning and completion of necessary formalities, Ld Trial Court served notice u/s 251 CrPC upon the appellant on 09.11.2020 to which he pleaded not guilty and claimed trial. The plea of defence as taken by him at that stage is being reproduced below for the sake of convenience:-
"I did not take any loan from the complainant. I have issued three cheques to the complainant as security for business transactions i.e. for purchasing of medicines from the complainant."CA No.48/2022 Sanjay Kumar @ Sanjay Yadav Vs. Sagar Kukreja Page No.3/ 16
Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2023.06.06
17:05:47
+0530
3A. Record further transpires that in pre-summoning evidence,
respondent/complainant deposed on the line of his complaint and relied upon following documents :-
a) Evidence by way of affidavit Ex.CW1/Y,
b) Original Cheques in question Ex.CW1/A, Ex.CW1/B and Ex.CW1/C,
c) Return memos dated 13.03.2020 Ex.CW1/D and Ex.CW1/E,
d) Return memo dated 18.03.2020 Ex.CW1/F,
e) Return memos dated 05.05.2020 Ex.CW1/G to Ex.CW1/I,
f) Copy of Legal demand notices dated 02.06.2020 Ex.CW1/J to Ex.CW1/L,
g) Courier Receipts Ex.CW1/M to Ex.CW1/O,
h) Tracking report Ex.CW1/P to Ex.CW1/R,
(i) Affidavit U/s 65 B Evidence Act Ex.CW1/S. 3B. Record further transpires that respondent was cross examined on 12.02.2021. CW-2 Sh. Hirender Kumar from DTDC was examined to prove the service of legal notices. He was duly cross examined by Ld. Defence Counsel.
3C. Trial Court record further reveals that in his statement u/s 313/281 CrPC, the appellant/accused stated as under:-
"I have no liability towards the complainant. I am not having any kind of friendly relationship with the complainant. Even the residence of the complainant is not known to me."CA No.48/2022 Sanjay Kumar @ Sanjay Yadav Vs. Sagar Kukreja Page No.4/ 16
Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2023.06.06
17:05:54
+0530
3D. Record further transpires that appellant examined himself as a
witness u/s 315 Cr.P.C. in his defence as DW-1. He was duly cross examined by Ld. Counsel for respondent on 30.09.2021. Sh. Vishal Soni was examined as DW-2 to prove that he was residing at 10/1, 1 st Floor, Dakshinpuri Extn., New Delhi at the time when legal notices were allegedly served to the respondent at that address. He was also duly cross examined by Ld. Counsel for respondent. Sh. Puchinhau Manlun, an Inspector from Income Tax Department was examined as DW-3. He was not cross examined by Ld. Counsel for the respondent despite opportunity.
4. Ld Trial Court vide impugned judgment observed that appellant has failed to rebut the presumption under section 139 NI Act and while acting upon the testimonies of witnesses and relying upon the other material available on record, held that the ingredients of section 138 NI Act stand fully proved in the instant case. Ld. Trial Court found the appellant/accused guilty of offence under section 138 NI Act and convicted him vide impugned judgment which is under challenge in the present appeal.
5. Arguments heard.
6. It has been argued on behalf of appellant that Ld. Trial Court has convicted him wrongly as the material on record and law applicable thereupon was not properly appreciated. It was argued that as per explanation appended to Section 138 NI Act, a person can be convicted under that Section only if the cheque in question was issued in discharge of CA No.48/2022 Sanjay Kumar @ Sanjay Yadav Vs. Sagar Kukreja Page No.5/ 16 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.06.06 17:06:04 +0530 a legally enforceable debt or other liability which is not the case here. It was submitted that respondent has not even mentioned the specific date on which alleged loan was so advanced. It was also submitted that as per the cross-examination of the respondent, the alleged amount was arranged by him from his parents and his brother however, same has not been proved in any manner. It was further submitted that he has admitted in his cross- examination that individually, he was not having the financial capacity to give loan to the tune of Rs.8,90,000/- in cash. It was submitted that in the absence of any material to show that the amount in question was in fact so advanced, the appellant could not have been convicted for the offence U/s 138 NI Act. It was submitted that this particular aspect was not properly dealt with by Ld. Trial Court. He has prayed for setting aside the impugned judgment alongwith order on sentence. He has relied upon the following judgments:-
(i) G.Pankajakshi Amma & Others Vs. Mathai Mathew (D) through LR's & Others (2004) 12 SCC 83.
(ii) Kulvinder Singh Vs. Kafel Ahmed, Criminal L.P. No. 478 of 2011, 2013 II AD (Delhi) 81.
(iii) Leena Kataria Vs. State & Anr. CRL. A No. 131/2018 (Delhi High Court).
(iv) Sanjay Mishra Vs. M/s Kanishka Kapoor @ Nikki and Anr. 2009 CRL. L.J. 3777 (Bombay High Court).
(v) Basalingappa Vs. Mudibasappa (2019) 5 SCC 418.
(vi) Kumar Exports Vs. M/s Sharma Carpets [(2009) 2 SCC 513].
(vii) K.Prakashan Vs. P.K. Surenderan (2008) 1 SCC 258.CA No.48/2022 Sanjay Kumar @ Sanjay Yadav Vs. Sagar Kukreja Page No.6/ 16 Digitally signed by SUNIL
SUNIL GUPTA
GUPTA Date:
2023.06.06
17:06:11 +0530
(viii) Rangappa Vs. Sri Mohan (2010) 11 SCC 441.
(ix) K. Subramani Vs. K. Damodara Naidu (2015) 1 SCC 99.
(x) Sheela Sharma Vs. Mahendra Pal, case No. Crl.L.P No.559/2015 Delhi High Court.
(xi) Rajaram Vs. Maruthachalam, Criminal Appeal No. 1978/2013.
7. Per contra, it has been argued by Ld. Counsel for the respondent that Ld. Trial Court has passed a reasonable judgment after properly appreciating the material on record. It was submitted that appellant has miserably failed to rebut the presumptions existing in his favour. It was further argued that even if the loan was so advanced in cash, there is no bar in law to recover the same and the conviction of appellant was justified for dishonor of cheques issued for such a loan. It was further submitted that the appellant has failed to explain as to why the cheques were not demanded back by him. Also, it is not clear as to why same were issued in the name of respondent and not in the name of Nukind Healthcare Pvt. Ltd. in case his defence is true. He has prayed for dismissal of this appeal. He has relied upon the following judgments:-
(i) Barun Kumar Vs. State of NCT of Delhi & Anr. Crl. Rev.P. 398/2018 & Crl. M.A. 8702/2018.
(ii) Dilip Chawla Vs. Ravinder Kumar & Anr., Crl. Rev.P. 607/2016.
(iii) Sanjay Arora Vs. Monika Singh, Crl.A. 98/2017.
(iv) D.K. Chandel Vs. M/s. Wockhardt Ltd. & Anr. Criminal Appeal No(s) 132/2020.CA No.48/2022 Sanjay Kumar @ Sanjay Yadav Vs. Sagar Kukreja Page No.7/ 16 Digitally signed by SUNIL
SUNIL GUPTA Date: GUPTA 2023.06.06 17:06:19 +0530
(v) Rohitbhai Jivanlal Patel Vs. State of Gujarat & Anr. Criminal Appeal No. 508/2019.
(vi) Lekh Raj Sharma Vs. Yash Pal Gupta, Crl. L.P. 567/2014.
8. I have considered the submissions from both the sides alongwith record.
9. The case of the respondent in brief before Ld. Trial Court as well as before this Court is that he had advanced a sum of Rs.8,90,000/- in cash to the appellant on his request in January, 2020 and that the cheques in question were issued in first week of March, 2020 in discharge of said liability which were dishonored on presentation for encashment.
10. On the other hand, the appellant took a defence at the stage of framing of notice u/s 251 Cr.P.C. to the effect that no such loan was taken by him and that he had issued the cheques in question to the respondent as security for purchasing medicines from him. Similar defence was taken by him in his application u/s 145(2) NI Act seeking permission of the Court to cross examine the respondent.
11. In the cross-examination of the respondent, only a suggestion was put to him to the effect that the cheques in question were handed over for the purchase of pharmaceutical drugs and that same were misused by him. Same was denied by him. Remaining cross-examination was focused on an CA No.48/2022 Sanjay Kumar @ Sanjay Yadav Vs. Sagar Kukreja Page No.8/ 16 Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2023.06.06 17:06:26 +0530 attempt to otherwise demolish the case of respondent.
12. In his statement U/s 313 Cr.P.C, the appellant submitted that he was not having any liability towards the respondent. He also stated that he was not having any kind of friendly relationship with him and that he was even not knowing his residence.
13. In his testimony as a defence witness u/s 315 Cr.P.C., it was deposed by the appellant that he had taken oral orders amounting to Rs.9 lacs from chemist shops at the instance of the respondent who is admittedly in the business of pharmaceuticals. It was stated that he was to gain margin money on those orders and that cheques in question were handed over by him in last week of February, 2020 as advanced for supply of medicine, however due to delay in supply, the orders were withdrawn from him by the chemist shops.
14. So, there is no dispute to the issuance of cheques in question by the appellant to the respondent. Admittedly, same are bearing his signatures rather entire details thereupon have been filled by him. The cheques in question were admittedly dishonored vide return memos dated 05.05.2020 and legal demand notices dated 02.06.2020 sent on behalf of the respondent were duly received by the appellant (this aspect was contested by appellant before Ld. Trial Court, however same has not been so done before this Court). So, the only aspect which is being contested by both the parties pertains to the purpose for which the cheques in question were so issued by CA No.48/2022 Sanjay Kumar @ Sanjay Yadav Vs. Sagar Kukreja Page No.9/ 16 Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2023.06.06
17:06:34
+0530
the appellant. As per the respondent, same were issued to discharge the liability of the appellant towards him to the tune of Rs.8,90,000/- which was allegedly taken in second week of January, 2020 in cash whereas the case of appellant is that same were issued in advance for supply of medicines by the respondent which were never so supplied and that no such loan was ever taken by him. Interestingly, no documentary proof has come on record at the instance of either party to prove his case, however as mentioned earlier, the respondent has relied on the presumptions existing in his favour as per NI Act.
15. Regarding these presumptions, Hon'ble Supreme Court in Basalingappa Vs. Mudibasappa, Crl. Appeal No.636/2019 held 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 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 from the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence.
Inference of preponderance of probabilities can be drawn not only from the materials brought on CA No.48/2022 Sanjay Kumar @ Sanjay Yadav Vs. Sagar Kukreja Page No.10/ 16 Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2023.06.06 17:06:42 +0530 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.
(v) It is not necessary for the accused to come in the witness box to support his defence."
16. So, there is a presumption in this case in favour of respondent to the effect that the cheques in question were received by him in discharge of debt as alleged, however said presumption is rebuttable in nature. Now, the material on record will have to be scrutinized to see as to whether the appellant was able to raise a probable defence or not.
17. As per the case of the respondent, he was having friendly relations with the appellant since last around 5 years and that was sought to be presented as a reason as to why the alleged loan was advanced to him. The appellant has contested this thing and has stated that they were not having friendly relations. In his cross-examination the respondent stated that he knew the appellant through his father Mr. Ishwar Kukreja and that his earlier office was near the residence of appellant. On being further questioned on this aspect, it was stated by him that he was unable to recollect as to whether the appellant has attended any of his family function, however he was sure that he never attended any family function of the appellant. He also stated that he do not know the family members of the appellant. The father of respondent was not examined during trial. In CA No.48/2022 Sanjay Kumar @ Sanjay Yadav Vs. Sagar Kukreja Page No.11/ 16 Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2023.06.06
17:06:52
+0530
these facts, the existence of "friendly relations" between the parties is doubtful as not even a single fact has come on record to show the same. Even the exact location of earlier office address of the respondent has not come on record which could have supported his version that his earlier office was near the residence of appellant.
18. The case of respondent is that he was approached by the appellant in second week of January, 2020 for financial help to the tune of Rs.9 lacs which has been denied by the appellant. The respondent has not mentioned the reason disclosed to him by the appellant for seeking such help. He has not even mentioned the date or month when the said amount was so advanced to the appellant, either in his complaint or in his evidence by way of affidavit Ex.CW1/Y. In his cross-examination, he stated that the amount was so advanced at his residence in second week of January, 2020 and that he was unable to recollect the exact date. He stated that he was unable to recollect the exact time also, however it was morning. Hon'ble Apex Court in Vijay Vs. Laxman & Anr. Crl. Appeal No. 261/2013 has held on the effect of omission to mention the date on which loan was allegedly advanced, as under:-
"In the first place the story of the complainant that he advanced a loan to the respondent-accused is unsupported by any material leave alone any documentary evidence that any such loan transaction had ever taken place. So much so, the complaint does not even indicate the date on which the loan was demanded and advanced. It is blissfully silent about these aspects thereby making the entire story suspect. We are not unmindful of the fact that there is a presumption that the issue of a cheque is for consideration. Sections 118 and 139 of the Negotiable CA No.48/2022 Sanjay Kumar @ Sanjay Yadav Vs. Sagar Kukreja Page No.12/ 16 Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2023.06.06
17:06:59
+0530
Instruments Act make that abundantly clear. The presumption is, however, rebuttable in nature."
19. So, this omission in itself is sufficient to create doubt on the case of respondent more so because he has not even specified the date when the cheques in question were received by him from the appellant.
20. One of the grounds taken by appellant before this Court is that the respondent has failed to show the existence of the alleged loan and that he has not even proved the source of funds. In his cross-examination, the respondent admitted that individually, he was not having the financial capacity to give loan to the tune of Rs.8,90,000/- in cash. He has also stated in his cross-examination that he had taken Rs.7 lacs from his parents,namely, Ishwar Kukreja, mother Kiran Kukreja and brother Anuj Kukreja, however he failed to specify as to what was the exact amount taken by him from each of them. It has also not come on record as to whether they were having the financial capacity to advance/ hand over such a sum to the respondent. Here the judgment of Hon'ble Apex Court in APS Forex Services Pvt. Ltd. vs. Shakti International Fashion Linkers & Ors., (2020) 12 SCC 724 is material in which it was held as under:-
"We are of the view that whenever the accused has questioned the financial capacity of the complainant in support of his probable defence, despite the presumption under Section 139 of the N.I. Act about the presumption of legally enforceable debt and such presumption is rebuttable, thereafter the onus shifts again on the complainant to prove his financial capacity and at that stage the complainant is required CA No.48/2022 Sanjay Kumar @ Sanjay Yadav Vs. Sagar Kukreja Page No.13/ 16 Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2023.06.06
17:07:10
+0530
to lead the evidence to prove his financial capacity more particularly when it is a case of giving loan by cash and thereafter issuance of a cheque."
21. Similar observations were made by Hon'ble Apex Court in Basalingappa Vs. Mudibasappa (supra). Reliance is also placed on the judgment of Hon'ble Kerala High Court in Sunitha vs. Sheela Antony, 2020 SCC Online Ker 1750 in which it was held as under:-
"The complainant has no obligation, in all cases under Section 138 of the Act, to prove his financial capacity. But, when the case of the complainant is that he lent money to the accused by cash and that the accused issued the cheque in discharge of the liability, and if the accused challenges the financial capacity of the complainant to advance the money, despite the presumption under Section 139 of the Act, the complainant has the obligation to prove his financial capacity or the source of the money allegedly lent by him to the accused. The complainant has no initial burden to prove his financial capacity or the source of the money. The obligation in that regard would arise only when his capacity or capability to advance the money is challenged by the accused."
22. As mentioned earlier, an accused in a case u/s 138 NI Act can rebut the presumptions existing in favour of the complainant by relying upon the evidence led by the complainant. From the above discussion, it is clear that the respondent has miserably failed to show the existence of transaction in question. On the other hand, the appellant has deposed on oath submitting that the cheques in question were issued by him in last week of February, 2020 as advance for supply of medicines for oral orders amounting to Rs.9 CA No.48/2022 Sanjay Kumar @ Sanjay Yadav Vs. Sagar Kukreja Page No.14/ 16 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.06.06 17:07:26 +0530 lacs which he had taken from chemist shops and that the medicines were not so supplied and due to delay, the orders were withdrawn from him. It is not in dispute that the respondent is engaged in the business of pharmaceuticals or that he was so engaged in that business in the year 2020 too. It is correct that the appellant has also failed to elaborate upon further this defence as not much details thereof have come on record. It is a classic case where both the parties have remained economical with truth however, as mentioned earlier, the appellant has successfully created doubt in the case of respondent by relying upon the evidence led on behalf of respondent and by reference to the circumstances. The judgments relied upon by the respondent are distinguishable on facts. In D.K. Chandel Vs. M/s. Wockhardt Ltd. & Anr. Criminal Appeal No(s) 132/2020, Hon'ble Apex Court did not interfere with the judgment of High Court in view of concurrent findings of Trial Court and High Court. In Rohitbhai Jivanlal Patel Vs. State of Gujarat & Anr. Criminal Appeal No. 508/2019, the transaction was supported by an acknowledgment by accused on stamp paper bearing his signature.
23. Considering the above discussion, this Court is of the view that the appellant has successfully rebutted the presumptions existing in favour of the respondent by relying upon the material placed on record on behalf of respondent. Ld. Trial Court committed an error in holding otherwise in the impugned judgment dated 18.01.2022. With these observations, the instant appeal stands allowed. The impugned judgment and order on sentence emanating therefrom stand set aside accordingly. The appellant/accused Sanjay Kumar @ Sanjay Yadav stands acquitted of offence U/s 138 N I Act. He is directed to furnish CA No.48/2022 Sanjay Kumar @ Sanjay Yadav Vs. Sagar Kukreja Page No.15/ 16 Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2023.06.06
17:07:41
+0530
personal bond & surety bond in the sum of Rs.15,000/- each for the purpose of Section 437A CrPC. Bond has been furnished and accepted. The amount to the tune of 20% of the compensation amount deposited with Ld. Trial Court in terms of order dated 24.02.2022 of this Court be released to him against receipt. Digitally signed by Appeal stands disposed of. SUNIL SUNIL GUPTA Date:
GUPTA 2023.06.06 17:07:52 +0530 Announced in the open (Sunil Gupta) Court on 06th June, 2023 Additional Sessions Judge-06, South, Saket Courts, New Delhi CA No.48/2022 Sanjay Kumar @ Sanjay Yadav Vs. Sagar Kukreja Page No.16/ 16