Delhi District Court
Sunita Brijesh Kumar vs Sunder on 7 April, 2025
DLNW010034642024
Presented on : 12-04-2024
Registered on : 15-04-2024
Decided on : 07-04-2025
Duration : 0 years, 11 months, 25 days
IN THE COURT OF
ASJ/SPECIAL.JUDGE(NDPS)
AT ,NORTH WEST DELHI
(Presided Over by Sh. Vikram)
CA/85/2024
Smt. Sunita Brijesh Kumar,
W/o Sh. Brijesh Kumar,
R/o H. No. B- 4/3,
Ashok Vihar, Phase- II,
Delhi-110052. .... Appellant
Versus
Sh. Sunder,
S/o Lt. Sh. Sunehri Lal,
r/O l- 10, J. J Colony, Wazirpur,
Delhi- 110052
.... Respondents
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APP for State : Sh. Vineet Dahiya,
Sh. Tara Singh Bhisht and Sh. Murari Lal Sharma, Advocates
appearing for appellant and respondent, respectively.
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Offence punishable under : 374 of Code of Criminal Procedure,
138 of Negotiable Instruments Act,
Smt. Sunita Brijesh Kumar Vs. Sh. Sunder CA/85/2024 Page no. 1 of page 8
JUDGMENT
(Delivered on 07.04.2025)
1. This appeal under Section 374 Cr.P.C is directed against the impugned order/ judgment dated 23.02.2024 and order on sentence dated 12.03.2024 passed by Ld. MM, NI Act, N/W Rohini Courts, Delhi in CC No. 14578/2016, titled as Sunder Vs. Smt. Sunita Brijesh Kumar.
2. Brief fact are that a complaint u/s NI Act was filed by respondent alleging that being relative the appellant had approached the respondent for loan of Rs. 2 lakh for urgent needs and the respondent paid the loan. The appellant had promised to return the loan by December 2014 and had issued four cheques bearing nos., 048821, 048822, 048823 & 048824, each for sum of Rs. 50,000/- drawn on Catholic Syrian Bank. The appellant failed to repay the loan despite request and by that time, the above mentioned cheque became outdated. However, the appellant issued three other cheques bearing nos., 48827, 48825 & 48826 dated 05.05.2015, 20.05.2015 & 25.05.2015 respectively for sum of Rs. 50,000/- 1 lakh and Rs. 50,000/- respectively. The respondent presented those cheques with the bank i.e., Bank of India, Ashok Vihar, however, the cheques returned dishonored vide memos dated 22.05.2015, 25.05.2015 and 27.05.2015 respectively. The respondent intimidated about the dishonoure on which appellant sought more time, however, when appellant failed to pay the amount, the respondent presented all the three cheques again which were returned dishonoured with remarks 'insufficient' vide order dated 03.08.2015. Consequent to that, appellant issued notice u/s 138 Smt. Sunita Brijesh Kumar Vs. Sh. Sunder CA/85/2024 Page no. 2 of page 8 NI Act on 20.08.2015. However, the appellant failed to pay the cheque amount , therefore, the respondent filed complaint.
3. The appellant was summoned by Ld. Trial Court and was served with notice under section 251 Cr.P.C on 24.09.2018 in which appellant claimed that she did not take any loan but had given the cheques of Rs. 2 lakh as the son of respondent was suffering from paralysis and it was given for medical treatment of his son. Appellant also claimed that respondent has assured that he would return the cheque after showing them to somebody but misused the cheques.
4. In complainant evidence, complainant proved the cheques Ex. CW-1/1 to Ex. CW-1/3 returning memo Ex. CW-1/4, Copy of legal notice Ex. CW-1/5 and postal receipt Ex. CW-1/6 with tracking report Ex. CE-1/7. The respondent was cross examined at length.
5. After examination of respondent in statement u/s 313 r/w section 281 Cr.P.C, appellant was put all the documents in which again appellant claimed that the respondent was in need of money and he wanted to take some loan from somebody and he needed those cheques to show it to someone, therefore, had taken those cheques with promise that he would return the same. However, the respondent misused the cheques and presented without informing the appellant. Appellant opted to lead defence evidence. However, did not lead evidence in defence.
Smt. Sunita Brijesh Kumar Vs. Sh. Sunder CA/85/2024 Page no. 3 of page 8
6. Ld. Trial Court, after hearing the arguments, convicted the appellant vide impugned judgment and sentenced vide impugned order whereby, appellant was sentenced to simple imprisonment for one month and fine of Rs. 3, 62,000/-, in default SI for 15 days.
7. The judgment is assailed on the ground that the finding of Ld. Trial Court is perverse and liable to be set aside because Ld. Trial Court has passed the judgment in mechanical manner without following legal principles and despite the fact that the respondent failed to prove any source of income or any document to support the loan, Ld. Trial Court presumed the liability. It is claimed that the respondent has failed to show the capacity to advance such a huge loan and once, the capacity of respondent became doubtful, the appellant had rebuttal the presumption.
8. In support, appellant placed relies on A. M Govindegowdav Vs. B. V Ravi, 2015 (4) Crimes 261 (Karnataka), Basalingappa Vs. Mudibasappa Crl. Appeal no. 636/2019 and Vikas Nath Vs. Sumit Bhasin 2016(1) R LR 453.
9. Per contra it is submitted by Ld. Counsel for respondent that the appeal fails to show any ground and there is no illegality in the order of Ld. Trial Court, therefore, appeal deserves to be dismissed.
10. The fact that cheque were given by appellant to the respondent is not in dispute nor it is in dispute that the cheques Smt. Sunita Brijesh Kumar Vs. Sh. Sunder CA/85/2024 Page no. 4 of page 8 bear her signature. The reply to notice u/s 251 Cr.P.C as well as statement u/s 313 Cr.P.C both show that the particulars in these cheques were also filled by the appellant.
11. Therefore, in view of section 118 and 139 NI Act, 1881, it has to be presumed that the cheques are for consideration and were issued in discharge of liability, fully or partially.
12. Onus, is then on the appellant to rebut the presumption either by addusing evidence or through bringing circumstances in cross examination to show that there is no liability existing or the cheque was not given for the purpose of discharge of any liability. For that purpose, there is only cross examination of respondent.
13. In cross examination although respondent has admitted that there is no written agreement of receipt of loan, however, non existence of written agreement or receipt, itself is not sufficient to rebut the presumption. The appellant has also questioned the capacity of the respondent and although the respondent has not shown his bank statements to prove that during or around the period of loan. He was having enough money to lend the same to the appellant, but it is the claim of the appellant that he is running a salon and has employed two barbers in his shop. His children are studying in 10 th and 3rd class and as per the respondent, he earns about 15-20 thousand per month. Respondent has also shown that he is having tenants. Besides that not just the cheques in question i.e., three cheques for which this complaint is filed, respondent has also produced Smt. Sunita Brijesh Kumar Vs. Sh. Sunder CA/85/2024 Page no. 5 of page 8 the copies of cheques which were issued in his name but became stale.
14. The claim of appellant was that she had issued the cheques as respondent was in need to borrow loan from someone. This claim in itself is non believable because if respondent had to borrow loan from somebody, he would have given his own cheques. Even if, the respondent was not having cheques with him and cheques of appellants were taken for borrowing the loan, these cheques would have been handed over to the person from whom the respondent had to take loan.
15. In these circumstances, to rebut the presumption and to prove the defence, the appellant could have discharged her onus by bringing the evidence to show that during the period when the cheques were issued, appellant had got his son treated from some hospital by summoning the record from hospital. This was the claim for which the cheque was allegedly given by the respondent. Therefore, in my view, Ld. Trial Court is correct in holding that the appellant failed to rebut the presumption existing in favour of respondent. The appellant has not brought any circumstance on record to show the probability of defence. It is pertinent to note here that the appellant has not even questioned the previous four cheques copies of which are on record. There is no explanation why these four cheques for exact same amount i.e., Rs. 2,00,000/- were issued in the name of respondent.
16. In view of the discussion above held, the appeal lacks merit, hence dismissed.
Smt. Sunita Brijesh Kumar Vs. Sh. Sunder CA/85/2024 Page no. 6 of page 8
17. Coming to the sentence, Ld. Trial Court has given the corporal sentence of simple imprisonment for one month. However, as held by Hon'ble Supreme Court, in Meters and Instruments Pvt. Ltd., & Ors Vs. Kanchan Mehta (2018) 1 SCC 560, the object behind the provision u/s 138 NI Act is primarily compensatory and the punitive element is mainly to enforce the compensation. The dishonour of cheque is a civil wrong which has been given criminal overtone only to enforce the liability under the cheque. Therefore, the incarceration of a convict in cheque bounce case where the amount is merely Rs. 2 lakhs even for a day is disproportionate punishment, when the same can be compensated with interest.
18. Ld. Trial Court already took care of the interest part by awarding Rs. 1,62,000/- in addition to cheque amount. Therefore, the sentence is modified in the following terms.
19. The convict/ appellant is directed to pay the fine amount of RS. 3,62,000/- to the respondent within 30 days from this order. In default of payment of fine, as the time given by the Ld. Trial Court has already been delayed, the convict shall undergo SI for 30 days. In case the appellant/ convict fails to pay fine, respondent has right to recover the amount as fine u/s 421 Cr.P.C irrespective of default sentence.
20. The appeal is accordingly disposed off.
Smt. Sunita Brijesh Kumar Vs. Sh. Sunder CA/85/2024 Page no. 7 of page 8
21. TCR along with the copy of judgment sent to Ld. Trial Court. A copy of judgment be given dasti to appellant free of cost.
File be consigned to record room after due
Digitally
compliance. signed by
VIKRAM
VIKRAM Date:
2025.04.07
16:59:23
+0530
(VIKRAM)
ASJ-02/Spl. Judge (NDPS)
North-West, Rohini Courts, Delhi/07.04.2025 Dictated on : 07.04.2025 Digitally signed by Transcribed on : 07.04.2025 VIKRAM VIKRAM Date:
checked on : 07.04.2025 2025.04.07
16:59:31
Signed on : 07.04.2025 +0530
(VIKRAM)
ASJ-02/Spl. Judge (NDPS)
North-West, Rohini Courts, Delhi/ 07.04.2025 Smt. Sunita Brijesh Kumar Vs. Sh. Sunder CA/85/2024 Page no. 8 of page 8