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[Cites 20, Cited by 0]

Delhi District Court

Devender Sharma vs State Of Nct Of Delhi on 25 November, 2023

     IN THE COURT OF SPECIAL JUDGE (NDPS ACT),
     SHAHDARA, KARKARDOOMA COURTS, DELHI


Criminal Appeal No. 181/2023

In the matter of :­

Devender Sharma
S/o Sh. Dharampal Sharma
R/o House No. B­172, Ashok Nagar,
Shahdara, Delhi ­ 110093.
Also at: 1/10987, Gali No. 2, Subhash Park,
Naveen Shahdara, Delhi ­ 110032.
                                                        .......... Appellant

                                    Versus

1. The State of NCT of Delhi
                                                .......... Respondent no. 1
2. Anupama Sharma
   W/o Sh. Sanjay Sharma,
   R/o C­4, UG­2, Dilshad Colony,
   Delhi­110095.
                                                .......... Respondent no. 2

     CRIMINAL APPEAL UNDER SECTION 374 OF THE
         CODE OF CRIMINAL PROCEDURE, 1973

        Date of institution                         : 27.09.2023
        Date when judgment reserved                 : 31.10.2023
        Date of Judgment                            : 25.11.2023

JUDGMENT:

­

1. This appeal impugns judgment dated 30.06.2023 and order on sentence dated 25.08.2023 passed by Criminal Appeal No. 181/2023 Page 1 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 Sh. Udbhav Kumar Jain, Ld. Metropolitan Magistrate, Shahdara, Karkardooma Courts, Delhi by which appellant Devender Sharma was found guilty under Section 138 of the Negotiable Instruments Act, 1881 (in short "the NI Act") and was sentenced.

2. Brief facts as borne out from the trial court records are that complainant Anupama Sharma (respondent no. 2 herein) is doing job as a SDE in MTNL Department, Delhi and accused Devender Sharma (appellant herein) is son of complainant's under trainee person Sh. Dharampal. The appellant/accused contacted the respondent no. 2/complainant and started visiting to the Department regularly and developed a good relation with the respondent no. 2/complainant. The appellant/accused used to visit house of the respondent no. 2/complainant and also would help in her house/personal work as an agent/servant. The appellant/accused had taken a loan of Rs. 5 lakhs from the respondent no. 2/complainant and also took lot of movable things like phone, camera, scooty, bike, DVD player etc. which the appellant/accused was not willing to return and when the respondent no. 2/complainant demanded back the loan amount and the movable things, he threatened and misbehaved with the complainant. A complaint dated 24.03.2014 was made by the respondent no. 2 against the appellant/accused in PS Seema Puri, Delhi and the dispute between the parties was referred to Criminal Appeal No. 181/2023 Page 2 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 Delhi Government Mediation & Conciliation Centre where settlement was arrived between the parties and the appellant/ accused agreed to pay Rs. 2,70,000/­ to respondent no. 2/complainant for all the debt money and things. The appellant/accused gave six post dated cheqeus (PDCs) for an amount of Rs. 45,000/­ each towards discharge of his liability as per the settlement. Out of the said six PDCs, the cheque in question bearing No. 739267 dated 16.12.2014 when presented for encashment in the bank by the respondent no.2/ complainant, the same was returned by the banker of the appellant/accused with remarks "Funds Insufficient" vide memo dated 17.12.2014. The respondent no. 2/complainant apprised the factum of dishonour of the cheque to the appellant/accused and demanded the amount of dishonoured cheque but to no avail which constrained the respondent no. 2/complainant to send a legal notice on 15.01.2015 to the appellant/accused through registered post demanding the amount of dishonoured cheque along with interest but despite service of legal notice, the appellant/accused neither replied the same nor paid the amount of the dishonoured cheque. Hence, the complainant under Section 138 of the NI Act was filed by the respondent no. 2/complainant against the appellant/accused.

3. The Ld. Trial Court took cognizance of the offence and summoned the accused. Pursuant to service of Criminal Appeal No. 181/2023 Page 3 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 summons, the appellant/accused appeared before the Ld. Trial Court and notice under Section 251 Cr.P.C. was served upon him on 02.11.2018 to which he pleaded not guilty and claimed trial.

4. The respondent no. 2/complainant, in order to prove her case, examined herself as CW­1 and relied upon cheque in question Ex.CW1/A, cheque return memo Ex.CW1/B, copy of legal notice dated 14.01.2015 Ex.CW1/C, delivery report of legal notice through speed post Ex.CW1/D, copy of complaint dated 24.03.2014 Mark A and copy of mediation settlement Mark B.

5. After closing of evidence of the respondent no. 2/complainant, statement of the appellant/accused under Section 313 Cr.P.C. was recorded wherein he denied the claim of the respondent no. 2/complainant regarding advancement of loan to him. He chose to lead evidence in his defence and examined himself as DW­1.

6. The Ld. Trial Court vide judgment dated 30.06.2023 found appellant/accused Devender Sharma guilty for commission of offence punishable under Section 138 of the NI Act and vide order dated 25.08.2023 sentenced him to undergo simple imprisonment for six months and also to pay fine of Rs. 90,000/­ payable to the respondent no. 2/complainant as compensation within one month from the date of order and in default of payment of fine to undergo further simple imprisonment for three months.

7. Aggrieved by the impugned judgment dated Criminal Appeal No. 181/2023 Page 4 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 30.06.2023 and order on sentence dated 25.08.2023, the present appeal has been preferred on the following grounds: ­

(a) That the Ld. Trial Court has erred in law in not appreciating the fact that the respondent no. 2/complainant has failed to mention the day, date, month or year when the alleged loan was given by her to the appellant/accused and she improved her statement during her cross­ examination.

(b) That the Ld. Trial Court has failed to appreciate that the respondent no. 2/complainant had lodged a false complaint before the police against the appellant/accused and facts of which did not match with the complaint case filed before it.

(c) That the Ld. Trial Court has failed to appreciate that the respondent no. 2/complainant has failed to disclose the source of advancing the loan amount to the accused by producing the bank statement etc.

(d) That the Ld. Trial Court has failed to appreciate that the respondent no. 2/ complainant being Class I Govt. Officer in MTNL has misused her good relation with the police authorities and she was helped by the police concerned without giving any proof of advancement of loan.

(e) That the Ld. Trial Court has ignored the fact that the respondent no. 2/complainant has not mentioned about the loan amount in her ITR and thus there was no presumption of existence of legally enforceable debt or liability.

Criminal Appeal No. 181/2023 Page 5 of 47

Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023

(f) That the Ld. Trial Court has failed to appreciate that two different inks were used in filling up the cheque in question as the ink used in signing the cheque in question, amount in words and figure is different from the other body of the cheque in question.

(g) That the Ld. Trial Court has failed to appreciate that the complainant was regularly threatening the appellant to implicate in a false case of rape as he had refused to accompany her to settle the quarrel with her husband which made the complainant annoyed and out of revenge she lodged a false complaint against the appellant/accused and also got the cheque issued from the appellant in collusion with some police official and later on misused the said cheque.

(h) The Ld. Trial Court has erred in law in not appreciating that the complainant has failed to prove her case beyond reasonable doubt.

8. On these grounds, the appellant has prayed for setting aside the impugned judgment dated 30.06.2023 and order on sentence dated 25.08.2023.

9. The respondent no. 2/ complainant has not filed any formal reply to the present appeal and the Ld. Counsel for respondent no. 2 has argued straightaway.

10. I have heard the Ld. Counsel for the parties and perused the record carefully.

11. It is a cardinal principle of criminal jurisprudence Criminal Appeal No. 181/2023 Page 6 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 that it is the burden of the prosecution to prove the guilt of the accused beyond reasonable doubt, however the statutory presumptions wherever are available to the accused create an exception to this cardinal principle by shifting the burden of proof to the opposite party. Among the notable presumptions available under the scheme of the NI Act, two are available under Sections 118 (a) and 139 of the Act.

12. Section 118 (a) of the NI Act provides as under: ­ Presumptions as to Negotiable Instruments ­ Until the contrary is proved, the following presumption shall be made; ­

(a) of consideration ­ that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration

13. Section 139 of the NI Act reads as under: ­ Presumption in favour of holder It shall be presumed, unless contrary is proved, that the holder of a cheque received the cheque of the nature referred in section 138 for the discharge, in whole or in part, of any debt or other liability.

14. It has been held by the Hon'ble Supreme Court in Rangappa vs. Sri Mohan, (2010) 11 SCC 441 that : ­ ".... the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability."

Criminal Appeal No. 181/2023 Page 7 of 47

Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023

15. In Rajesh Jain vs. Ajay Singh, Special Leave Petition (Crl.) No. 12802 of 2022 decided on 09.10.2023, the Hon'ble Apex Court has observed as under :­

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 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 Criminal Appeal No. 181/2023 Page 8 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 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 Kumar1]. 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 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 Wigmore 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 Criminal Appeal No. 181/2023 Page 9 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 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 not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non­existence 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].

42. In other words, the accused is left with two options. The first option­of proving that the debt/liability does not exist­is 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 non­existence 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 Criminal Appeal No. 181/2023 Page 10 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 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 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 non­existence 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 Criminal Appeal No. 181/2023 Page 11 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand 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].

16. As such, once the issuance of the cheque is admitted or proved, the court is duty bound to raise a presumption that the dishonoured cheque placed before it was indeed issued in discharge of a legally enforceable debt or liability of the amount mentioned therein. Of course, the said presumption is rebuttable one and it is for the accused to prove that the cheque in question had not been issued in discharge of a legally enforceable debt or liability.

17. It has been held in Hiten P Dalal vs. Bratindranath Banerjee, (2001) 6 SCC 16 that a mere plausible explanation given by the accused is not enough to rebut the presumption and the accused has to necessarily disprove the prosecution case by leading cogent evidence that he had no debt or liability to issue the said cheque.

Criminal Appeal No. 181/2023 Page 12 of 47

Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023

18. In Rangappa vs. Sri Mohan (supra), the Hon'ble Supreme Court has observed as under: ­ Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective to improve the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accuses may not need to adduce evidence of his/her own.

19. In view of the aforesaid proposition of law laid Criminal Appeal No. 181/2023 Page 13 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 down by the Hon'ble Apex Court, it has to be seen as to whether the respondent no. 2/complainant has been able to prove that there was legally enforceable debt or liability for which the cheque in question Ex. CW1/A was issued by the appellant/accused or that the appellant/accused has been able to rebut the presumption and prove that the cheque in question had not been issued in discharge of legally enforceable debt or liability but the same was got issued under the duress, coercion and pressure of the police officials at the instructions of the respondent no. 2 and also on account of threat extended by the respondent no. 2/complainant to implicate him in a false rape case.

20. Admittedly, the respondent no. 2/complainant is posted as SDO in MTNL, Delhi and Class I Gazetted Officer. As per claim of the respondent no. 2/complainant, she knew the appellant through his father Sh. Dharampal who was under her training in the MTNL department. The appellant/accused has not disputed the fact that his father was working in the same government department where the respondent no. 2/complainant is working. It is further claim of the respondent no. 2/complainant that the appellant used to regularly visit the department and to her house due to acquaintance with his father and he developed a good healthy relation with her. He would also help in personal work/ household chores of the respondent no. 2 as an agent/servant and gained her confidence as well as of her family members. The said facts have also Criminal Appeal No. 181/2023 Page 14 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 not been controverted by the appellant during cross­ examination of the complainant. Though, the respondent no. 2/complainant as CW­1 stated in her cross­ examination that she has not filed any evidence regarding Mr. Dharam Pal (father of the appellant) was under her training. She further stated that she has not filed any document regarding the accused that he was engaged by her for house work/personal work as an agent. There may not have been any such document but the accused has not given any suggestion that his father was not trainee of the complainant or that he did not use to visit the house of the complainant or that he did not use to help the complainant in her household chores or that he was not on friendly terms with the complainant. In the absence of any such suggestion, the friendly relation between the appellant and the respondent no. 2 stands established.

21. The respondent no. 2/complainant has also claimed that the appellant/accused had taken a loan of Rs. 5 lakhs from her besides other movable things and when she asked him to return the same, he threatened and misbehaved with her for which she made a complaint dated 24.03.2014 Mark A against him in PS Seema Puri, Delhi and the matter was referred to Delhi Mediation & Conciliation Centre where settlement Mark B took place between the parties whereby the appellant/accused agreed to pay Rs. 2,70,000/­ to the respondent no. 2/complainant towards full and final claim of the parties for which he issued 6 Criminal Appeal No. 181/2023 Page 15 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 PDCs including cheque in question i.e. cheque bearing 739266 Ex.CW1/A, but the same got dishonoured on presentation on account of insufficiency of funds. Thereafter, the respondent no. 2/complainant issued a legal notice dated 14.01.2015 Ex.CW1/C to the appellant/accused demanding amount of dishonoured cheque but in vain and consequently the complaint case under Section 138 of the NI Act was filed by the respondent no. 2/complainant.

22. The appellant/accused has not disputed his signature on the cheque in question Ex.CW1/A and its issuance in favour of the respondent no. 2/complainant as is apparent from his response to the notice of substance of accusation under Section 251 Cr.P.C. served upon him wherein he admitted that the cheque Ex.CW1/A bears his signature and the same was issued by him in favour of the complainant, though he claimed that cheque in question was given in blank signed condition under pressure to complainant as he was being called to PS Seema Puri on daily basis by Insp. Chotey Lal on complaint of complainant. He further stated that cheque in question has been misused and he is not liable for cheque amount mentioned in the cheque in question. Similarly, Cr.P.C., he admitted his signature on the cheque in question and its issuance but he denied the remaining particulars in his handwriting and claimed that he had given the cheque in question to Deepak, who is brother of the complainant Criminal Appeal No. 181/2023 Page 16 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 upon the direction of a mediator before whom they had appeared. He further claimed that he has given the cheque to the complainant under pressure of police officials and he has no legal liability towards the complainant. The settlement Mark B arrived at between the parties before the Delhi Mediation & Conciliation Centre has also not been disputed by the appellant/accused and he admitted his signature thereon during his cross­examination.

23. In view of the admission of the appellant/accused regarding his signature and issuance of the cheque in question Ex.CW1/A in favour of the respondent no. 2/complainant coupled with the fact that the mediation settlement dated 11.04.2014 Mark B has also not been disputed by him, a presumption is raised against him and in favour of the respondent no. 2/complainant that cheque in question Ex.CW1/A was issued by him towards discharge of legally enforceable debt or liability and he was required to rebut the said presumption.

24. The foremost defence of the appellant/accused for issuance of the cheque in question Ex.CW1/A is that he was pressurized by the police to issue the cheque in favour of the respondent no. 2 who being a Gazetted Officer exerted pressure on the police to coerce him to issue the cheque, otherwise he did not owe any debt or liability towards the respondent no. 2. The said defence is based on the premise that the respondent no. 2 had some matrimonial dispute with her husband and at her request, Criminal Appeal No. 181/2023 Page 17 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 the appellant had accompanied her to Uttar Pradesh where her husband was staying in a village to settle their dispute but a quarrel took place there and they were attacked by some of the villagers due to which the appellant refused to accompany the respondent no. 2 again to the said village which infuriated her; and out of revenge she made a false complaint against him and by using her contacts with the police she pressurized the appellant to admit the liability in the Mediation Centre and to issue the cheque in question Ex.CW1/A in her favour without any liability, otherwise he was threatened to be implicated in a false rape case by the respondent no.2/complainant who is Class 1 Gazetted Officer and has acquaintance with the police officers.

25. It is not in dispute that there were some matrimonial disputes between the respondent no. 2/complainant and her husband and the appellant had accompanied her to Uttar Pradesh to help in settling the dispute with her husband. The respondent no. 2/complainant has admitted during her cross­examination that she was having matrimonial disputes with her husband and her husband was brought back from Shamli, UP to Delhi in 2013. She further admitted that the accused had accompanied her to Shamli, UP for bringing back her husband to Delhi. She further admitted that there was an incident of quarrel in 2013 when her husband was brought back to Delhi. She admitted that she knows father of the accused as they work in the same department. She further admitted that due to Criminal Appeal No. 181/2023 Page 18 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 her acquaintance with father of the accused, the accused had accompanied her to UP in 2013. She further stated that on 21.04.2013, the accused accompanied her to her husband's house at Patel Nagar to help her where her husband had assaulted her. She denied the suggestions that thereafter the accused told her that he would not help her further and that when the accused refused to help her she threatened him to implicate him in a false rape case.

26. The Ld. Counsel for the appellant/accused during course of the arguments while referring to this part of cross­examination of the respondent no. 2/complainant has vehemently contended that the defence of the appellant/accused is proved that he was pressurized to sign the cheque in question by the respondent/complainant with the help of police officers as he had refused to accompany her to settle the dispute with her husband and he was threatened to be implicated in a false rape case.

27. I do not find any merit in this contention of the Ld. Counsel for the appellant/accused. The aforesaid cross­ examination of the respondent no.2/complainant at the most shows that the parties were known to each other and had good friendly relations, but it cannot be inferred that since the accused had refused to accompany the respondent no. 2/complainant again to settle the dispute with her husband, she threatened him to implicate in a false rape case and pressurized him to admit the liability and to sign the cheque in question.

Criminal Appeal No. 181/2023 Page 19 of 47

Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023

28. It is an undisputed fact that the appellant/accused had accompanied the respondent no. 2/complainant to settle the dispute with her husband and it was not so unusual if the appellant, who was frequent visitor to the house of the respondent no. 2 because of her acquaintance with his father as both worked in the same government department, had accompanied her to settle the dispute between her and her husband. It is also a fact that some quarrel had taken place between the respondent no. 2 and her husband when the appellant had accompanied her to help in settling the dispute; and thereafter as per claim of the appellant/accused, he refused to accompany the respondent no. 2/complainant again to visit her husband for reconciliation. Now, if this version of the appellant is accepted, question which arises for consideration is whether the said refusal provoked the respondent no. 2/complainant to raise false allegation against the appellant and to coerce him to sign the cheque in question Ex.CW1/A with the help of police officers by threatening to implicate him in a false rape case if he fails to do so ?

29. Admittedly, the appellant/accused had accompanied the respondent no. 2/complainant to settle the dispute of the complainant with her husband in the year 2013. The respondent no. 2/complainant has specified the date on which the appellant had accompanied her to meet her husband and the same is 21.04.2013. The first complaint Mark A was made by the respondent no. 2/complainant Criminal Appeal No. 181/2023 Page 20 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 against the appellant/accused in Police Station Seema Puri on 24.03.2014. If the version of the appellant is accepted that the respondent no. 2/complainant has implicated him out of revenge because he had refused to accompany her to settle the dispute with her husband, the respondent would not have waited for about one year to lodge complaint against him. Further, a perusal of the complaint dated 24.03.2014 made to the SHO PS Seema Puri Mark A shows that the respondent no. 2/complainant has made allegations of outrage of her modesty by the appellant/accused when she demanded her money and other articles back but there is no allegation of rape against the appellant/accused. During cross­examination, the respondent no.2/complainant has also stated that no action was taken by the police concerned of PS Seema Puri on her complaint in which she has mentioned about the allegations of outrage of modesty and to threaten her with revolver. The contention of the appellant/accused that he was falsely implicated and was pressurized by the police to sign the cheque in question under the threat to be implicated in a false rape case by the respondent no. 2 is also not believable in the absence of any complaint made by the appellant/accused to the Senior Officers of the respondent no. 2 to this effect, who admittedly is a Government Servant and Class I Gazetted Officer in MTNL department, Delhi. Nor any such complaint was made to the police by the appellant that he was being Criminal Appeal No. 181/2023 Page 21 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 threatened by the respondent no. 2/complainant to implicate in a false rape case.

30. So far as the mediation settlement Mark B executed between the parties is concerned, the contention of the appellant/accused is that he was forcibly made to sign the said settlement by the police under the pressure of respondent no. 2/complainant who is Class 1 Gazetted Officer, otherwise he did not owe any liability towards the respondent no.2/complainant. During cross­examination of the respondent no. 2/complainant, she was suggested that though the jurisdictional thana was PS Seema Puri, however when no action was taken by the police in pursuance to her complaint Mark A, therefore she had approached PS Jyoti Nagar as she was having acquaintance with the officers of PS Jyoti Nagar who has forcibly got executed the settlement between her and the accused. The said suggestion was denied by the respondent no. 2/complainant. Except giving the said suggestion, the appellant/accused has not brought on record the name of the police official/officer with whom the complainant had acquaintance in the PS Jyoti Nagar. Though the appellant/accused suggested the respondent no. 2/complainant that at the time of settlement, the police official, namely, Dilbagh was also present which suggestion was again denied by the complainant. The mediation settlement Mark B does not show presence of police official, namely, Dilbagh. Even the said suggestion Criminal Appeal No. 181/2023 Page 22 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 is contradictory to the further suggestion put by the appellant/accused during cross­examination of the respondent no. 2/complainant that the cheque in question had been handed over to her as he was under pressure from SI Vinay Pratap Singh, PS Seema Puri. It shows that even the accused is not certain that which police official had pressurized him to sign the settlement Mark B and the cheque in question Ex.CW1/A whether he was Dilbagh Singh or SI Vinay Pratap Singh; and whether the police official was from PS Jyoti Nagar or from PS Seema Puri who was threatening him that in case he failed to settle the transaction, he would be sent behind bars in a false rape case.

31. Not only this, the appellant/ accused in his evidence has stated that Additional SHO Rajesh Dogra was known person of the complainant. He further stated that SHO PS Jyoti Nagar had threatened him to implicate him in a false rape case if he did not pay the money. He further stated that he requested two days time and after two days, he along with one person, namely, Wasim Ahmed Khan reached in PS Seema Puri where the SHO revised his abovesaid version to him and then some written work was done in the police station. He further stated that thereafter the matter was sent to mediation centre and there some cheques were taken by the complainant from him under pressure. However, aforesaid depositions made by the appellant/accused in his examination­in­chief are the bald Criminal Appeal No. 181/2023 Page 23 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 statements which have not been substantiated with any evidence. From these statements, even it is not certain whether Additional SHO Rajesh Dogra who was allegedly known to the complainant had threatened him or it was SHO PS Jyoti Nagar who had threatened him. Further, as per claim of the appellant, after two days of the said threat, he had gone to PS Seema Puri along with one Wasim Ahmed Khan, however the appellant/accused has not produced said Wasim Ahmed Khan as a witness in his defence and he could have been the best witness to prove the alleged threat given by Additional SHO Rajesh Dogra or SHO PS Jyoti Nagar, but for the best reasons known to the appellant the said Wasim Ahmed Khan has not been examined by the appellant/accused in his defence. No explanation of any sort has come forward on the part of the appellant for non­examination of said person and, therefore, an adverse inference is liable to be drawn against the appellant/accused.

32. It is evident that the appellant/accused had been taking contradictory stands and it exposes his falsehood. Further, if any such threat was extended by the police official/officer, the appellant/accused was not expected to keep silent and to agree to settle the matter in the mediation for a huge sum of Rs. 2,70,000/­ without any liability and to issue the post dated cheques in favour of the respondent no. 2/complainant. The appellant/accused has not made any complaint against the superior Criminal Appeal No. 181/2023 Page 24 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 authorities of the police officials/Additional SHO or SHO who were allegedly pressurizing and compelling him to settle the matter in the Mediation Centre and to issue the cheque in favour of the respondent no. 2/complainant for no liability. The appellant has also not approached any Court of Law for the illegal action of police officials/officers in coercing him to issue the cheque in favour of the respondent no.2/complainant without any debt or liability. The appellant/accused admittedly has also not initiated any legal action against the respondent no. 2/complainant till date if the compromise was got effected by the respondent no. 2/complainant under pressure of the police officials/officers and it belies this defence of the appellant/accused.

33. The said defence is further falsified in view of the fact that if there had not been any genuine settlement and the respondent no. 2 with the help of police officials/officers had exerted the pressure on the appellant/accused to admit the liability, then she would have taken the cheques for entire loan liability of Rs. 5 lakhs besides other money claim of movable articles taken by the appellant/accused from her and would not have settled the matter for lesser amount of Rs. 2,70,000/­.

34. Further, a perusal of the mediation settlement dated 11.04.2014 Mark B reveals that the matter was referred by the PS Jyoti Nagar to Delhi Mediation & Conciliation Centre for settlement between the parties. The process of Criminal Appeal No. 181/2023 Page 25 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 Mediation was properly explained to the parties. Several proposals came up for consideration and after a long discussion, the parties had settled the matter for Rs. 2,70,000/­ towards full and final settlement of all the claims of the complainant arising out of the complaint made to the police and pursuant to the said settlement the appellant had issued 6 PDCs of Rs. 45,000/­ each. The said settlement Mark B does not indicate that during the process of mediation any police official was involved as alleged in the appeal and during course of the arguments. The respondent no. 2/complainant has also categorically stated in her cross­examination that no police official was present in the Mediation when the compromise was effected. She denied the suggestion that the cheque in question had been handed over to her as the accused was under pressure from SI Vinay Pratap Singh, PS Seema Puri. She categorically stated that at the time of handing over the cheque, SI Vinay Pratap Singh was not present.

35. It has also come during cross­examination of the respondent no. 2/complainant that the matter was called thrice in the mediation. She visited the mediation in all three occasions and the officer in mediation had not asked her to produce any proof of loan neither she gave any document to them. She voluntarily stated that the accused has admitted that he has to pay money to her. She stated that the accused has admitted his liability on first date itself but she did not remember the date and on that day he Criminal Appeal No. 181/2023 Page 26 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 admitted only Rs. 2,70,000/­. It is clear from the aforesaid statements that process of mediation was carried out on three occasions. Therefore, if the appellant/accused was pressurized by the police officials to execute the settlement, nothing stopped him from disclosing the same to the Mediator. It is also a fact that the appellant/accused has not challenged the mediation settlement Mark B till date on the ground that the same was outcome of fraud and coercion and not voluntarily and, therefore, the same be declared as null and void. Thus, the contention of the appellant that he was pressurized by the police to settle the matter and to pay amount of Rs. 2,70,000/­ is an afterthought, concocted and liable to be rejected.

36. During course of the arguments, the Ld. Counsel for the appellant has also challenged the financial capacity of the respondent no. 2/complainant and vehemently contended that the respondent no. 2/complainant has failed to prove that she was having any such financial capacity to advance a sum of Rs. 5 lakhs to the appellant/accused. He also contended that the said loan amount has not been reflected in the ITRs filed by the respondent no. 2/complainant which shows that no such alleged loan was advanced by the respondent no. 2 to the appellant. He further argued that there was no loan agreement or any other document executed between the parties showing that the respondent no. 2/complainant had advanced a loan of Rs. 5 lakhs to the appellant at any point of time and it is Criminal Appeal No. 181/2023 Page 27 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 highly improbable that a government employee would advance a loan without executing the loan agreement and in the absence of any such document, it cannot be said that the cheque in question Ex.CW1/A was issued by the appellant towards the said liability.

37. As regards the financial capacity of the respondent no. 2/complainant to lend Rs. 5 lakhs to the appellant/accused is concerned, I do not find any merit in the contention of the Ld. Counsel for the appellant for three reasons. Firstly, as noted above, it is not in dispute that the respondent no. 2/complainant is a government employee and Class I Gazetted Officer in MTNL, Delhi. In the present case, she is being represented through legal aid counsel. The Counsel for the appellant himself has taken an objection on appointment of legal aid counsel to represent the respondent no. 2/complainant in the present appeal on the ground that she is financially sound being Class I Gazetted Officer as noted vide judicial proceedings dated 14.10.2023. Therefore, it is apparent that the appellant himself is not disputing the financial capacity of the respondent no. 2, rather he has admitted that being Class I Gazetted Officer and financially sound, she was not entitled to the legal aid counsel. Secondly, the respondent no. 2/complainant has placed on record copy of her bank statement for the period 01.01.2012 to 31.12.2013 which shows sufficient balance of Rs. 5 lakhs in her account during the relevant period of time. Thirdly, Criminal Appeal No. 181/2023 Page 28 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 the financial capacity of the respondent no. 2/complainant has not been challenged by the appellant/accused during her cross­examination.

38. So far as the contentions regarding not showing of loan amount in the ITRs and non execution of loan agreement are concerned, it is not in dispute that the loan amount has not been shown in the ITRs filed by the respondent no. 2/complainant. She has admitted during her cross­examination that she is income tax payee since the year 1999 and that she has not shown any of the loan transactions in her ITR. She voluntarily stated that there was no column in the ITR to specify the said details.

39. It has also come from the evidence of the complainant that she knows the appellant/accused since 2001 and he used to regularly visit her house and developed a good relation with her. He gained her confidence and would also help in her personal work/ household chores. The said claim of the respondent no. 2/complainant has not been controverted by the appellant/ accused as noted above. The very fact that the appellant/accused had accompanied the respondent no. 2/complainant for reconciliation with her husband would show that they were having good friendly and healthy relations until the litigation started between them in the year 2014. In these circumstances, when the parties were known to each other and had friendly relation for about 12­13 years, the loan advanced by the respondent no.

Criminal Appeal No. 181/2023 Page 29 of 47

Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 2/complainant of Rs. 5 lakhs to the appellant/accused may not have been deemed necessary to be shown in the ITR filed by respondent no. 2/complainant. It is so held by the Hon'ble High Court of Delhi in Lekh Raj Sharma vs. Yash Pal Gupta, Crl. L.P 567/2014 wherein it has been observed 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 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.' (Emphasis Supplied)
ii) Mr. Krishna P. Morajkar vs. Mr. Joe Ferrao, 2013 CRIJ (NOC) Vipin 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 Criminal Appeal No. 181/2023 Page 30 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 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 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 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 t1.27o 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.' (Emphasis Criminal Appeal No. 181/2023 Page 31 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 Supplied)

22. Similarly, in the present case, the loan given by the petitioner was a friendly loan for the business of the accused­respondent, in the background that they had known each other for about 40 years. It was payable in a short period of time. Thus, I do not find any merit in the submi1.27ssion of the respondent that since the name of the accused­respondent has not been shown in the balance sheet, or the amount had not been disclosed in the ITR, it stands established that the loan was not disbursed by the appellant."

40. As such, it cannot be said that since the loan amount has not been reflected in the ITR by the respondent no. 2/complainant, it stands proved that no loan was advanced by the respondent no. 2/complainant as argued by the Ld. Counsel for the appellant. Similarly, if no loan agreement was executed between the parties, it cannot be concluded that no such loan was given by the respondent no. 2/complainant to the appellant/accused. Keeping in view the friendly and family relations between them, the necessity to execute the loan agreement may not have been felt by the parties and on this count the claim of the respondent no.2/complainant cannot be doubted.

41. The Ld. Counsel for the appellant has also argued that the respondent no. 2/complainant has not produced her brother and bhabhi to prove that she had arranged the loan amount from them as mentioned in the complaint dated 24.03.2014 Mark A. However, there is no merit in Criminal Appeal No. 181/2023 Page 32 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 the said contention. In the complaint dated 24.03.2014 Mark A, the respondent no. 2/complainant has not stated that she has arranged the loan amount of Rs. 5 lakhs from her brother and bhabhi which was given to the appellant. Rather she has stated that the appellant/accused had also taken Rs. 1,20,000/­ from her brother Deepak Kaushik and Rs. 1,00,000/­ from her bhabhi Kusum Lata and has not returned the same to them. There is no whisper in the complaint dated 24.03.2014 Mark A that the respondent no. 2/complainant has arranged the loan amount from her brother and bhabhi and, thereafter, advanced the loan to the appellant.

42. It has also been contended by the Ld. Counsel for the appellant that the respondent no. 2/complainant has not mentioned the day, date, month and year when the alleged loan was advanced by her to the appellant/accused, though she improved during her cross­examination by telling the various dates on which she allegedly advanced the loan to the appellant/accused.

43. It is true that in the complaint under Section 138 of the NI Act, the respondent no. 2/complainant has not disclosed the particular date, month and year of the advancement of the loan. She simply averred that the appellant/accused had taken a loan of Rs. 5 lakhs from her and also took lot of movable things like phone, camera, scooty, bike, DVD player etc. and when she demanded back the loan amount and the movable things, he Criminal Appeal No. 181/2023 Page 33 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 threatened and misbehaved with her for which she made a police complaint dated 24.03.2014 Mark A against him. In the said complaint dated 24.03.2014 Mark A, the respondent no. 2/complainant has stated that the visits of the accused to her house has increased since 2012 because at that time she had quarrels with her husband and on the guise of helping her in the said dispute, he gained confidence of her and her family members. She further stated that on 27.02.2013, the appellant/accused had taken her bike for one day for some urgent work but did not return the same till date. She further stated that the appellant had taken Rs. 5 lakhs from her for the purpose of construction of house and promised to return in four months but did not return the same.

44. Obviously no particular date, month and year has been disclosed in the complaint under Section 138 NI Act or in the complaint made to the police dated 24.03.2014 Mark A regarding advancement of the loan to the appellant/accused. However, during her cross­examination when Ld. Counsel for the appellant/accused put a specific question as to when she had advanced the loan to the accused, the respondent no. 2/complainant replied that she had given the loan of Rs. 5,00,000/­ to the accused on different dates. When she was probed by the Ld. Counsel for the appellant further about the dates, she stated that she for the first time tendered loan of Rs. 60,000/­ to the accused in January 2013, around 14.01.2013. She further Criminal Appeal No. 181/2023 Page 34 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 stated that the accused had sought four months time to repay the said loan i.e. till April 2013. She further stated that she advanced second loan amount of Rs. 1 lakh to the accused on 11.02.2013 and the said loan was also required to be repaid within four months i.e. till May 2013. Thereafter, she had advanced third loan of Rs. 1 lakh to the accused on 14.02.2013 which was also required to be repaid within four months i.e. till May 2013. Thereafter, she had advanced fourth loan of Rs. 2,40,000/­ to the accused on 20.02.2013 which was also required to be repaid within four months i.e. till May 2013. Thus, she corroborated her claim made in the complaint Mark A that the accused had taken loan of Rs. 5 lakhs from her with a promise to return the same within four months.

45. The aforesaid revelation of the dates regarding advancement of the loan by the respondent no. 2/complainant cannot be said to be improvements because she had disclosed the dates during her cross­examination in reply to the specific questions put by the Ld. Counsel for the appellant/accused and it is not that she mentioned the dates during her examination­in­chief to come within the purview of improvement. The respondent no. 2/complainant has also clarified that though she has not mentioned the period/date of tendering of loan amount as well as period of repayment in her complaint to the police but she had disclosed about the entire loan amount given by her to the accused.

Criminal Appeal No. 181/2023 Page 35 of 47

Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023

46. Even otherwise, if the respondent no. 2/complainant had not specified the dates of advancement of loan in her complaint, her claim of advancing loan of Rs. 5 lakhs to the appellant/accused cannot be belied in the teeth of categorical admission of the appellant/accused that he signed and issued the cheque in question Ex.CW1/A in favour of respondent no. 2/complainant as well as signed the mediation settlement Mark B. The claim of the respondent no. 2/complainant that she has advanced the loan of Rs. 5 lakhs to the appellant/accused is further substantiated from the fact that before the Trial Court, the appellant/accused had agreed to settle the matter with the respondent no. 2/complainant by offering to make payment of cheque amount every month in all the connected cases pending between the parties as six cases were pending between the parties in respect of six dishonoured cheques issued by the appellant of Rs. 45000/­ each of total settlement amount of Rs. 2,70,000/­ as evident from the order­sheet dated 02.11.2018. Though the complainant had not accepted the said offer of the appellant/accused for her different reasons which shall be adverted in this judgment later on. One wonders that if the appellant/accused was under no liability and he was coerced to issue the cheque in question in favour of the respondent no. 2/complainant by the police, then why he was willing to make the payment of the cheque amount every month to the respondent no. 2/complainant as noted Criminal Appeal No. 181/2023 Page 36 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 vide order­sheet dated 02.11.2018 by the Ld. Trial Court.

47. The Ld. Counsel for the appellant has also made a feeble argument that it is not understandable as to why the respondent no. 2/complainant did not ask for DVD, bike and other movable articles during the mediation settlement which were allegedly taken by appellant/accused d and it shows malafide on the part of the respondent no. 2/complainant. It is apparent that the mediation settlement was in respect of all the claims of the respondent no. 2/complainant arising out of the complaint dated 24.03.2014 for Rs. 2,70,000/­ and when the complainant agreed to settle the matter for Rs. 2,70,000/­ for all her claims, there was no question of asking for the movable articles taken by the appellant/accused.

48. The Counsel for the appellant has also argued that the falsity of the claim of the respondent no. 2 is apparent from the fact that at one hand she has claimed to have advanced Rs. 5 lakhs to the appellant/accused besides other belongings taken away by the appellant/accused, while on the other hand she is settling the matter for a lesser amount of Rs. 2,70,000/­ for which there is no explanation. Again, there is no merit in this contention. There may be various reasons for the respondent no. 2/complainant for settling the matter for Rs. 2,70,000/­ against loan amount of Rs. 5,00,000/­ and other movable article. But if she has agreed to settle the matter for a lesser amount, it cannot be inferred that no such loan was Criminal Appeal No. 181/2023 Page 37 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 advanced by her to the appellant/accused. Rather it shows the bonafide of the respondent no. 2/complainant and falsity of the claim of the appellant/accused that there was any pressure of the police official on the accused to settle the matter for Rs. 2,70,000/­. Had there been any such pressure of the police on the appellant/accused at the asking of the respondent no. 2/complainant due to her acquaintance with the police officials/officers, she would have remained adamant to settle the matter for the loan amount of Rs. 5 lakhs and would not have settled the matter for Rs. 2,70,000/­. It is evident that the parties had gone through long discussions and deliberations not once but on three occasions in Delhi Mediation Centre before arriving to the settlement. Therefore, no malafide can be attributed to the respondent no. 2/complainant if she has agreed to settle the matter for Rs. 2,70,000/­ as against the loan amount of Rs. 5 lakhs.

49. The Counsel for the appellant has also submitted that two different inks were used in filling the cheque in question Ex.CW1/A and it creates a doubt upon the story of the appellant. In this regard, he has taken this Court through the cross­examination of the complainant where she stated that she had herself filled the name in the cheque and contended that it shows that except the signature on the cheque in question, the other details are not in handwriting of the accused and two different inks were used in filling up the cheque which fact has been Criminal Appeal No. 181/2023 Page 38 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 ignored by the Ld. Trial Court.

50. I have gone through the cross­examination of the respondent no. 2/complainant referred by the Ld. Counsel for the accused. She was shown the cheque in question Ex.CW1/A and was asked to identify her handwriting. She categorically stated that she had herself filled the name in the cheque but rest of the contents were filled by the accused in his handwriting. She was suggested that the accused had handed over to her blank signed cheques. She voluntarily stated that the accused had filled the contents of the same at the time of handing over the cheques to her and the contents were written by him in his own handwriting. She was further suggested that the entire contents of the cheques is in her handwriting and she is deposing falsely that the same is in the handwriting of the accused which she denied.

51. From the aforesaid cross­examination of the respondent no. 2/complainant, it cannot be inferred that except the signature, the other details on the cheque in question are not in handwriting of the appellant/accused and two different inks were used in filling up the cheque in question as argued by the Ld. Counsel for the appellant/accused. Though the respondent no. 2/complainant admitted her name appearing on the cheque to be in her handwriting but she denied the suggestions that the other details were not in handwriting of the appellant/accused or that blank signed cheque was handed Criminal Appeal No. 181/2023 Page 39 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 over to her by the appellant/accused. Except putting these suggestions which were denied by the respondent no. 2/complainant, the appellant/accused has not adduced any evidence in the form of handwriting expert to prove his claim that except the signature on the cheque in question Ex.CW1/A, the other details are not in his handwriting. In the absence of any such evidence, the said claim of the appellant/accused has remained unsubstantiated and it cannot be said that two different inks/pens were used in filling up the cheuqe in question. Even if for the sake of arguments, it is accepted that the other details on the cheque were filled in by the respondent no. 2/complainant, still it will not make a difference as the appellant/accused has not disputed that the cheque in question bears his signature and was issued by him in favour of the respondent no. 2/complainant.

52. The Ld. Counsel for the appellant has relied upon the judgment passed by the Hon'ble Delhi High Court in Sheela Sharma vs. Mahender Pal, Crl. L.P. No. 559/2015, date of decision 02.08.2016 to buttress his argument that since there is no loan agreement in the present case, the loan amount has also not been shown in the ITR of the respondent no. 2/complainant and loan in cash exceeding Rs. 20,000/­ is also not permissible as per Section 269 SS of the Income Tax Act, the complaint filed by the respondent no. 2 under Section 138 of the NI Act was not maintainable before the Ld. Trial Court.

Criminal Appeal No. 181/2023 Page 40 of 47

Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023

53. I have carefully gone through the aforesaid judgment. The Hon'ble Delhi High Court has categorically held in para no. 24 that : ­ "The mere advancement of the loan in cash, may entail consequences for the party acting in breach of Section 269 SS of the Income Tax Act. That is not the concern of this court. Whether, or not, the appellant reflected the availability of the said amount in her income tax return, is also not a matter of concern for this Court. That would again be an aspect to be considered by the income­tax authorities. The advancement of loan, in cash, to the tune of Rs. 10 lakhs is not prohibited in law. The transaction of advancement of loan of Rs. 10 lakhs, in cash, thus is not illegal. Such a transaction is enforceable at law."

54. The Ld. Counsel for the appellant/accused has heavily relied upon the para no. 30 of the judgment which reads as under :­

30. In cases where the complainant claims to have advanced a friendly loan in cash, and where the transaction of loan is not evidenced by any other documentary or other reliable evidence, no doubt, the aspect whether the availability of funds in cash with the complainant/ lender, and its advancement as loan to the accused have been reflected in the income tax returns of the complainant/lender, or not, become relevant. If, the availability of funds and the loan transaction itself is not so reflected, that factor is taken note of by the Court as relevant to hold that the presumption under Section 118 and 139 of the NI Act stands rebutted. However, these considerations would not be relevant, where loan transaction itself is otherwise established, either through documentary evidence­such as, a receipt or a Criminal Appeal No. 181/2023 Page 41 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 loan agreement, or acknowledgment executed by the accused, or by oral evidence of any independence witness who is found to be credible."

55. In view of the said observations made by the Hon'ble High Court of Delhi, even the judgment relied upon by the Ld. Counsel for the appellant/accused does not come to rescue of the appellant/accused that on account of non execution of the loan agreement, not showing of the loan amount in the ITRs or cash transaction exceeding Rs. 20,000/­ is not permissible under Section 269 SS of the Income Tax Act, the respondent no. 2/complainant cannot maintain the complaint under Section 138 of the NI Act or there was no legally enforceable debt or liability towards the respondent no. 2/complainant. These factors may be relevant where the fact of advancement of the loan is not established by any other documentary or other reliable evidence. But these considerations would be irrelevant if the said fact is established either through documentary evidence or by oral evidence. In the present case, as discussed in detail, the respondent no. 2/complainant has sufficiently established that there was legally enforceable debt or liability for which the appellant had issued the cheque in her favour.

56. In view of the aforesaid discussions, the appellant/accused has failed to rebut the statutory Criminal Appeal No. 181/2023 Page 42 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 presumption of consideration under Section 118 of the NI Act and of existence of legally enforceable debt or liability under Section 139 of the NI Act. While on the hand, the respondent no. 2/complainant has duly proved that cheque in question was issued by the appellant in discharge of legally enforceable debt or liability as rightly opined by the Ld. Trial Court vide impugned judgment dated 30.06.2023. The impugned judgment dated 30.06.2023 is well reasoned and there is no illegality, infirmity and calls for no interference.

57. With regard to quantum of sentence awarded to the appellant/accused vide impugned order dated 25.08.2023, the Ld. Counsel for the appellant has argued that the sentence awarded to the appellant/accused is on the higher side. He contended that the appellant/accused was willing to settle the matter way back in the year 2018 and had even offered to settle the matter, but it was the respondent no. 2/complainant who had declined the said offer and delayed the matter and, therefore, for the delay caused by the respondent no. 2/complainant in the matter, the appellant/accused cannot be burdened with imprisonment of six months and imposition of fine to the double of the cheque amount and the same was uncalled for.

58. Per contra, the Ld. Counsel for the respondent no. 2 has submitted that the loan was advanced by the respondent no. 2/complainant to the appellant/accused in the year 2013 and the settlement between the parties was Criminal Appeal No. 181/2023 Page 43 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 effected in the year 2014 in the Delhi Mediation Centre by which the respondent no. 2/complainant has settled the matter with the appellant/accused for a lesser amount of Rs. 2,70,000/­ towards all her claims, but that too was not honoured by the appellant/accused. He further submitted that instead of honouring the mediation settlement, the appellant/accused compelled the respondent no. 2/complainant to indulge in the present litigation and the respondent no. 2/complainant was dragged in the present litigation for the last about 8­9 years, therefore imposition of fine to double of the cheque amount and sentence of six months are not on the higher side. He further submitted that the complainant did not settle the matter in the year 2018 as the accused was dictating his own terms while offering the settlement as he was not offering to pay the entire settlement amount of Rs. 2,70,000/­ in one go which he agreed to pay by way of six PDCs which got dishonoured. He submitted that the accused had offered to pay the cheque amount with some cost every month i.e. in piecemeal, which was not acceptable to the respondent no. 2/complainant and the same could not have been imposed upon her when the accused had earlier agreed to pay the entire settlement amount in one go vide settlement Mark B. Therefore, he contended that the respondent no. 2/complainant cannot be faulted with for not accepting the offer of settlement made by the appellant/accused in the year 2018.

Criminal Appeal No. 181/2023 Page 44 of 47

Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023

59. I have considered the rival contentions made on behalf of the parties on the quantum of sentence awarded to the appellant/accused vide impugned order dated 25.08.2023.

60. It has come on record from the cross­examination of the respondent no. 2/complainant that she had advanced loan of Rs. 5 lakhs to the appellant/accused on different dates in the year 2013. The settlement Mark B was arrived at between the parties on 11.04.2014 in the Delhi Mediation & Conciliation Centre by which the appellant/accused had agreed to pay the settlement amount of Rs.2,70,000/­ to the respondent no. 2/complainant, however the appellant/accused failed to honour the settlement as the cheques issued by him towards discharge of his liability of Rs. 2,70,000/­ including cheque in question Ex.CW1/A of Rs.45,000/­ got dishonoured and he failed to pay the said amount despite service of legal notice Ex.CW1/C.

61. I do not find merit in the contention of the appellant/accused that it was respondent no. 2/complainant who delayed the matter as she did not accept the offer of settlement made by the appellant/accused in the year 2018. The parties have already settled the matter on 11.04.2014 vide mediation settlement Mark B and the respondent no.02/ complainant agreed for a lesser amount of Rs. 2,70,000/­ as against the loan amount of Rs. 5,00,000/­ but instead of honouring the said settlement, the Criminal Appeal No. 181/2023 Page 45 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 appellant/accused on 02.11.2018 offered to pay the cheque amount every month in all the connected cases pending between the parties which was not accepted by the respondent no. 2/complainant. I find force in the argument of Ld. Counsel for the respondent no. 2/ complainant that respondent no. 2/complainant could not be compelled to accept the offer of settlement made by the appellant/accused in the year 2018 on his own terms and conditions as he was offering to make the payment of the settlement amount in piecemeal, while the parties have already settled the matter in the year 2014; and the respondent no. 2/complainant cannot be blamed for delaying the matter. It was the appellant/accused who failed to honour the settlement Mark B arrived at between the parties and dragged the respondent no. 2/complainant in the present litigation for about 8­9 years. The order on sentence was passed on 25.08.2023 i.e. after about 08 years of date of settlement arrived at between the parties. In these circumstances, the compensation awarded to the respondent no. 2/complainant i.e. double the cheque amount as well as the sentence of imprisonment of six months awarded to the appellant/accused does not appear to be on higher side. This Court is in agreement with the Ld. Trial Court on the quantum of sentence awarded to the appellant/accused vide impugned order dated 25.08.2023. Thus, no interference is required.

62. In the light of the aforesaid discussions, I do not find Criminal Appeal No. 181/2023 Page 46 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023 any merit in the present appeal and the same is hereby dismissed.

63. The appellant is taken into custody and warrant of commitment be sent to the concerned Jail Superintendent for executing the sentence.

64. Copy of judgment is supplied to the appellant free of cost against acknowledgement.

65. Appeal file be consigned to Record Room after due compliance.

66. TCR be sent back to the Ld. Trial Court along with copy of this judgment.

Announced in the open Court on 25th November, 2023 (Balwant Rai Bansal) Special Judge (NDPS Act), Shahdara Karkardooma Courts, Delhi Criminal Appeal No. 181/2023 Page 47 of 47 Devender Sharma vs. The State of Delhi & Anr. Judgment dt. 25.11.2023