Delhi District Court
Amit Dhingra vs Nand Kishore on 20 November, 2023
DLSE010079492022
IN THE COURT OF SH. LOVLEEN, ADDITIONAL SESSIONS
JUDGE-03, SAKET COURTS, NEW DELHI
CRL. APPEAL No. 142/2022
Sh. Amit Dhingra,
S/o Sh. Virender Kumar,
R/o H.O.B-334, (1st Floor)
Green Field Colony,
Faridabad-121001, Haryana. ....Appellant
VERSUS
1. Sh. Nand Kishore
S/o Late Sh. Mahabir Singh,
R/o B-334, Jaitpur Extension,
Part-1, Badarpur, New Delhi-1100044.
2. The State of NCT of Delhi ...Respondents
Date of institution : 29.08.2022
Date of Reserving judgment : 07.08.2023
Date of Pronouncement : 20.11.2023
Decision : Dismissed.
For Appellant : Sh. Praveen Agarwal & Sh. Ravinder Tyagi, Ld.
Counsel for appellant.
For Respondents: Sh. Arup Sinha, Ld. counsel for Respondent No. 1.
Sh. A.T. Ansari, Ld. Addl. PP for State/ R-2.
Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 1/25
JUDGMENT
1. This is an appeal under section 374 Cr.PC preferred by the appellant/accused against the impugned judgment dated 06.06.2022 passed by Court of Ld. Metropolitan Magistrate-01 (NI Act), South East District, whereby the appellant was convicted of the offence punishable under Section 138 of NI Act and against the order on sentence dated 25.07.2022 whereby the appellant was sentenced to pay a compensation of Rs. 18 lakhs to the respondent within one month. In default of payment of compensation, appellant was to undergo simple imprisonment for a period of three months. For the sake of convenience, the appellant herein shall be referred to as 'accused' and the respondent herein shall be referred to as 'complainant'.
BRIEF FACTS
2. The facts of the case have been correctly noted by the Ld. Trial Court in its impugned judgment. The relevant paragraphs are reproduced hereinafter for ready reference:-
"2.The case of the complainant is that the complainant and the accused are known to each other and there was a friendship between them. That in the month of December, 2012, the accused approached the complainant for a friendly loan of Rs.9,51,500/- and the accused assured the complainant that he shall return the same on 15.01.2013. As the accused was in dire need of money and believing upon his assurance, the complainant gave him a friendly loan of Rs.9,51,500/- in cash. That on 15.01.2013, when the complainant asked the accused to return the aforesaid friendly loan, the accused issued a cheque bearing no.303125 dated 18.01.2013 amounting to Rs.9,51,500/- drawn on Indusind Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 2/25 Bank,Faridabad Sector -16 Branch, SCO Number 10, Sector 16, Hooda Complex Faridabad, Haryana in favour of the complainant. That the aforesaid cheque was presented by the complainant in his bank account at Corporation Bank, Jaitpur, but the same was returned unpaid with the reason "Insufficient Funds" vide bank return memo dated 29.01.2013 and07.03.2013. Thereafter, complainant sent a legal notice dated 19.03.2013 to the accused through registered AD as well as speed post on the address of the accused calling upon the accused to make the payment within 15 days of the receipt of the legal notice as prescribed u/s 138 of the N.I. Act. That despite the service of legal notice and after the expiry of 15days stipulated period, the accused did not make the payment, hence, the present case was filed by the complainant."
TRIAL
3. Vide order dated 12.04.2013, the Ld. Metropolitan Magistrate summoned the accused to face trial u/s 138 NI Act. Before the accused put in appearance, the complaint was ordered to be transferred in compliance of the directions passed by Hon'ble Supreme Court in 'Dashrath Roop Singh Rathod Vs. State of Maharashtra' Criminal Appeal No. 2287/2009, date of decision 01.08.2014. The complaint was then entertained by Ld. Judicial Magistrate First Class, Faridabad, Haryana, who ordered the summoning of the accused afresh to face trial u/s 138 NI Act. Accused put in appearance before the said Court and was admitted to bail also. However, vide order dated 17.11.2015, Ld. Judicial Magistrate First Class, Faridabad ordered the transfer of the complaint to Saket Courts, New Delhi in the light of Section 142 A, Negotiable Instruments Act as inserted by Negotiable Insturment (Amendment) Second Ordinance 2015 with the Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 3/25 directions to the parties to appear before the Ld. District and Sessions Judge, Saket Courts, New Delhi. The Ld. Trial Court situated at Saket Courts then resumed hearing in the complaint from the stage when the complaint was ordered to be transferred for the first time in view of the observation made in 'Dashrath Roop Singh Rathod (Supra). On 21.09.2016, a notice u/s 251 Cr.P.C. was framed upon the accused to which he pleaded not guilty and claimed trial. At that time, accused admitted that the cheque in question bears his signature, but stated that the same was issued in favour of complainant towards 'Security' at the time of joint purchase of a property. After the sale of said property, the complainant did not return the cheque in question to him (accused). Accused denied to have availed any loan from the complainant. Accused further denied receipt of any legal demand notice.
4. The complainant examined himself as CW-1 in support of his allegations against the accused. Statement of accused was recorded u/s 313 Cr.P.C. In defence, the accused examined himself as DW1. Upon the conclusion of trial, accused was convicted for the commission of offence punishable u/s 138 NI Act vide the impugned judgment dated 06.06.2022.
GROUNDS OF APPEAL
5. The grounds cited by the accused against the impugned judgement are as under :
a) Because Ld. Trial Court erred in not appreciating ratio laid down by the Hon'ble High Court of Delhi in the following matters :
Devender Kumar vs. Khem Chand, Crl. Rev. P. 679/2012, Date of Decision 06.10.2015 (Paras 13, 19 and 21 to 24).
Lyka Finance Ltd. vs. State & Anr., CRL.L.P. Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 4/25 251/2013 (Paras 3 to 5.
John K. Abraham vs. Simon C. Abraham, Criminal Appeal No. 2043 of 2013, SCC December 05, 2013 (Para 9) Sanjay Mishra vs. Ms. Kanishka Kapoor @ Nikki & Anr. & Anr. Criminal Application no. 4694 of 2008, Bombay High Court, 24 February, 2009 (Para 9, 10,11, 13 & 15).
B.D. Khaitan & Co. Vs. A. Rammurthy II (2007) BC 292, Madras High Court, 28 February, 2007 (Paras 12 and 13)
b) Because the judgment of the Ld. Trial Court is contrary to the law, weight of evidence and probabilities of the case and supposition of the facts.
c) Because Ld. Trial Court has totally failed to appreciate the facts of the case and relied upon those points of evidence, which were against the appellant and did not appreciate the points submitted by the appellant, hence the impugned judgment and order passed by Ld. Trial Court is liable to be set aside.
d) Because Ld. Trial Court has totally failed to appreciate the evidence in favour of the appellant who has rebutted the presumption under N.I. Act.
e) Because the impugned order and judgment by the Ld. Trial Court is liable to be set aside as the appellant has successfully rebutted the presumption of exhibited documents but the Ld. Trial Court had not looked into it and failed to appreciate.
f) Because Ld. Trial Court has totally failed to appreciate respondent/complainant has failed to prove its case against Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 5/25 the appellant/accused. In fact cheque in question were never issued by the appellant/accused in discharge of any legal debt or liability rather the same have been issued during the property business, which was issued as security cheques to the respondent/complainant and later on respondent/complainant has misused the cheques in as much as soon after the conclusion of the transaction, all the payments were made to the complainant, hence, the appellant/accused is not liable to pay any cheque amount to the respondent.
g) Because Ld. Trial Court has totally failed to appreciate false complaint upon misleading facts has been filed by the respondent/complainant. Appellant/accused made the payment of the outstanding against them and nothing is due upon the appellant.
h) Because Ld. Trial Court has totally failed to appreciate legal notice was never received by the appellant/accused hence the appellant/accused were liable to be acquitted from the charges under Section 138 of NI Act.
i) Because the respondent/complainant was examined CW-1, who made various admissions which are taken in the ground with the file. Thus, it is clear that no legal and enforceable liability was upon the appellant to make any payment to the respondent. So, no offence under the provisions of NI Act are made out against the appellant.
j) Because Ld. Trial Court has totally failed to appreciate that respondent/complainant does not come within the ambit Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 6/25 of provision as envisaged in the NI Act in as much as, as per the provisions of Act initially the respondent/instrument lawfully. In the instant case though physical cheque in question was in the hands of the respondent but he cannot be termed as holder of the cheque.
k) Because Ld. Trial Court has totally failed failed to appreciate that no amount was remained unpaid as per the transactions between the parties to the litigation and the respondent/complainant was duty bound to prove themselves to be holder of the cheque in question.
l) Because Ld. Trial Court has passed the impugned orders in a routine manner and without application of mind and also without appreciation of evidence on the side of the appellant/accused which clearly proved that there was no legal liability of the appellant. Ld. Trial Court also failed to appreciate that such type of complaint cannot be maintainable and liable to be dismissed solely on this ground.
j) Because Ld. Trial Court totally failed to appreciate that the respondent/complainant has utterly failed to discharge the burden of proof entitling him to avail the benefit of presumptions under Section 118 of the NI Act. With respect it is further submitted that since the presumption u/s. 118 of NI Act was not available to the respondent, therefore, his complaint, in the facts and circumstances of the case, was bound to fail.
k) Because Ld. Trial Court has totally failed to appreciate and apply the propositions of the law as contained under Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 7/25 Sections 8 & 9 of the Negotiable Instruments Act are as under:-
8. Holder :- The holder of a promissory Note, Bill of Exchange or Cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto.
Where the Note, bill or Cheque is lost or destroyed, its holder is the person so entited at the time of such loss or destruction
9. Holder in due Course :- Holder in due course means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or endorse thereof, if (payable to order), before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title.
l) Because Ld. Trial Court has also erred in the fact that the legal demand notice was never served to the appellant/accused. It further erred in not considering the facts that the complainant has falsely produced the cheque where as he has already received the amount by way of cash.
m) Because Ld. Trial Court has also erred in considering the appellant as the drawer and account holder. It further erred in not relying upon the submission of the appellant that the respondent/complainant has misused the cheque in question which were given the complainant's share and later on Appellant paid the share amount by way of cash. The cheque was undated even a cursory glance is enough to see the difference in writing of figures in cheque amount and date Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 8/25 filled in cheque.
n) Because Ld. Trial Court has erred in ignoring the appellant was examined u/s. 315 Cr.P.C. as a witness and stated that he has no liability against the cheque in question. It further erred in not relying upon the fact that in the cross- examination of the complainant also showed that in the ITR no loan amount shown as stated by the complainant.
o) Because Ld. Trial Court has failed to appreciate the fact that the cheque in question was the undated cheque and the same were not issued against any existing liability. The judgment and order passed by the Ld. Trial Court is bad in the eyes of law, hence the same is liable to be set aside.
p) Because the appellant will suffer an irreparable loss and injury, if the impugned judgment and order of sentence is not set aside by the Hon'ble Court. The appellant has no other alternative or efficacious remedy except to seek the intervention of this Hon'ble Court.
6. It is prayed that the impugned judgment dated 06.06.2022 and and the order on sentence dated 25.07.2022 may be set aside. Appellant relies upon the observations made in Prem Kaur Vs. State of Punjab & Ors, 2013 (3 CC Cases (SC) 105 and State of Rajasthan Vs. Firoz Khan @ Arif Khan Cr. Appeal No. 750 of 2006 dated 17.05.2016..
7. On the other hand, Ld. Counsel for the complainant has argued that the accused has been correctly convicted by Ld. Metropolitan Magistrate and an appropriate sentence has been imposed upon him. He prays for dismissal of the appeal. Written submissions have also been filed on behalf of the complainant.
Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 9/25 DISCUSSION
8. This Court has considered the oral submissions as well as the records.
9. At the very outset, this Court must deal with a technical objection raised by the accused to the effect that the precedents cited by the accused before the Ld. Trial Court were not considered at the time of passing the impugned Judgment and hence it must be assumed that the same is not a reasoned judgment and the same may be set aside summarily. In the considered opinion of this Court, the said objection is liable to be rejected summarily as the Ld. Trial Court has reflected all the precedents cited before it in the impugned Judgment. Merely because Ld. Trial Court has not dealt with all the said precedents in detail, as is submitted before this Court by the accused, it could not be assumed that the same were not considered. The impugned judgment clearly reflects that the Ld. Trial Court has cited multiple precedents and has dealt with all the arguments raised by the accused. The correctness or otherwise of the reasoning given by the Ld. Trial Court is the subject matter of this appeal and shall be assessed in the following paragraphs. There is no reason to remand the matter back on this ground cited by accused.
10. Now, this Court proceeds to decide the appeal on merits. Recently, the Hon'ble Supreme Court was pleased to define the contours of the law relating to the provision u/s 138 of Negotiable Instruments Act in Rajesh Jain Vs. Ajay Singh 2023 INSC 888. The relevant extracts of the observations are reproduced below for ready reference:-
Section 138 of the NI Act - Necessary Ingredients
25. Essentially, in all trials concerning dishonour of cheque, the courts are called upon to consider is whether Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 10/25 the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act.
26. In Gimpex Private Limited vs. Manoj Goel (2022)
11 SCC 705 , this Court has unpacked the ingredients forming the basis of the offence under Section 138 of the NI Act in the following structure:
(1) The drawing of a cheque by person on do account maintained by him with the banker for the payment of any amount of money to another from that account;
(i) The cheque being drawn for the discharge in whole or in part of any debt or other liability;
(iii) Presentation of the cheque to the bank arranged to be paid from that account,
(iv) The return of the cheque by the drawee bank as unpaid either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount
(v) A notice by the payee or the holder in due course making a demand for the payment of the amount to the drawer of the cheque within 30 days of the receipt of information from the bank in regard to the return of the cheque; and
(vi) The drawer of the cheque failing to make payment of the amount of money to the payee or Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 11/25 the holder in due course within 15 days of the receipt of the notice.
27. In K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7 SCC 510 this Court had summarised the constituent elements of the offence in fairly similar terms by holding:
"14. The offence Under Section 138 of the Act can be completed only with the concatenation of a number of acts.The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (3) failure of the drawer to make payment within 15 days of the receipt of the notice."
28. The five (5) acts as set out in K Bhaskaran's case (supra) are, generally speaking, matters of record and would be available in the form of documentary evidence as early as, at the stage of filing the complaint and initiating prosecution. Apart from the above acts, it is also to be proved that cheque was issued in discharge of a debt or liability (Ingredient no. (ii) in Gimpex's case). The burden of proving this fact, like the other facts, would have ordinarily fallen upon the complainant. However, through the introduction of a presumptive device in Section 139 of the NI Act, the Parliament has sought to overcome the general norm as stated in Section 102 of the Evidence Act and has, thereby fixed the onus of proving the same on the Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 12/25 accused. Section 139, in that sense, is an example of a reverse onus clause and requires the accused to prove the non-existence of the presumed fact, i.e., that cheque was not issued in discharge of a debt/liability.
Burden of Proof and Presumptions: Conceptual Underpinnings
29. There are two senses in which the phrase 'burden of proof' is used in the Indian Evidence Act, 1872 (Evidence Act, hereinafter). One is the burden of proof arising as a matter of pleading and the other is the one which deals with the question as to who has first to prove a particular fact. The former is called the 'legal burden' and it never shifts, the latter is called the 'evidential burden' and it shifts from one side to the other. [See Kundanlal v. Custodian Evacuee Property (AIR 1961 SC 1316)]
30. The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party's case. If, at the conclusion of the trial a party has failed to establish these to the appropriate standards, he would lose to stand. The incidence of the burden is usually clear from the pleadings and usually, it is incumbent on the plaintiff or complainant to prove what he pleaded or contends. On the other hand, the evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; the burden rests upon the party who would fail if no evidence at Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 13/25 all, or no further evidence, as the case may be is adduced by either side (See Halsbury's Laws of England, 4th Edition para 13). While the former, the legal burden arising on the pleadings is mentioned in Section 101 of the Evidence Act, the latter, the evidential burden, is referred to in Section 102 thereof. [G.Vasu V. Syed Yaseen (AIR 1987 AP139) affirmed in Bharat Barrel Vs. Amin Chand [(1999) 3 SCC 35] ]
31. Presumption, on the other hand, literally means "taking as true without examination or proof". In Kumar Exports v. Sharma Exports (2009) 2 SCC 513, this Court referred to presumption as "devices by use of which courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence."
32. Broadly speaking, presumptions are of two kinds, presumptions of fact and of law. Presumptions of fact are inferences logically drawn from one fact as to the existence of other facts. Presumptions of fact are rebuttable by evidence to the contrary. Presumptions of law may be either irrebuttable (conclusive presumptions), so that no evidence to the contrary may be given or rebuttable. A rebuttable presumption of law is a legal rule to be applied by the Court in the absence of conflicting evidence (Halsbury, 4th Edition paras 111, 112]. Among the class of rebuttable presumptions, a further distinction can be made between discretionary presumptions ('may presume') and Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 14/25 compulsive or compulsory presumptions ('shall presume'). [G. Vasu V. Syed Yaseen (Supra)]
33. The Evidence Act provides for presumptions, which fit within one of three forms: 'may presume' (rebuttable presumptions of fact), 'shall presume' (rebuttable presumption of law) and conclusive presumptions (irrebuttable presumption of law). The distinction between 'may presume' and 'shall presume' clauses is that, as regards the former, the Court has an option to raise the presumption or not, but in the latter case, the Court must necessarily raise the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved, [G.Vasu V. Syed Yaseen (Supra)] Section 139 NI Act-Effect of Presumption and Shifting of Onus of Proof
34. The NI Act provides for two presumptions: Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that 'unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability'. It will be seen that the 'presumed fact' directly relates to one of the crucial ingredients necessary to sustain a conviction under Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 15/25 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 Chand] [(1999) 3 SCC 35]
37. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that 'a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar (2019) 4 SCC 197]. Therefore, mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 16/25 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 Wigmore12 on Evidence states as follows:
"The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption 'disappears as a rule of law and the case is in the Jury's hands free from any rule."
40. The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non- existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of 'preponderance of probabilities', similar to a defendant in a civil proceeding.
Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 17/25 [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 non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513]25
42. In other words, the accused is left with two options. The first option-of proving that the debt/liability does not exist-is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non- existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused's case may be even fifty one to forty nine and arising out of the entire circumstances of the case, which includes: the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 18/25 accused in the reply notice, his 313 statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was 'no debt/liability'. [Kumar Exports and Sharma Carpets, (2009) 2 SCC 513]
43. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact.
44. The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. In Kundanlal's case- (supra) when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non- existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 19/25 Act, since the nature of the presumptive clauses in Section 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well.
45. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption 'disappears' and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa vs. Mudibasappa, AIR 2019 SC 1983; See also, Rangappa vs. Sri Mohan (2010) 11 SCC 441] Existence of Statutory Presumptions
11. Coming to the present case, it must be noted at the very outset that the accused has admitted at the time of framing of notice u/s 251 Cr.PC that the cheque in question Ex. CW1/A bears his signatures. He has further admitted the handing over the same to the complainant, albeit for a different purpose than what is claimed by the complainant. It may be noted here that the accused has never claimed that the body of the cheque in Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 20/25 question was filled up by someone other than himself. All the above facts are sufficient to invoke the presumptions available to the complainant u/s 118 NI Act and u/s 139 NI Act. As such, the evidential burden stood transferred upon the accused to prove that the cheque in question was not issued towards discharge of any liability. Until the said evidential burden is discharged by the accused, the presumptions available against the accused u/s 118 NI Act and u/s 139 NI Act will have to be assumed to be true, without expecting the complainant to do anything further. The said burden could be discharged by the accused either by leading defence evidence to conclusively establish that the cheque was not issued in discharge of a debt / liability or by proving the non existence of debt / liability on preponderance of probabilities by referring to the particular circumstances of the case. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence. Once the accused produces such evidence, the burden shifts back to the complainant and the above mentioned presumptions disappear.
Rebuttal of Statutory Presumptions
12. Now, the question left to be decided is whether the said presumptions have been successfully rebutted by the accused or not. In order to adjudicate the same, this Court must deal with the facts adduced on record by the accused during the cross-examination of complainant.
13. The said adjudication requires an understanding of the stand taken by the parties. As per complainant, the cheque in question was issued by the accused in favour of the complainant in order to discharge his liability to repay the sum of Rs. 9,51,500/-, which was advanced to him by the complainant as a friendly loan. On the other hand, the accused denies any such liability and claims, in response to notice framed upon him u/s 251 Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 21/25 Cr.PC and also in his statement recorded u/s 313 Cr.PC, that the cheque in question was handed over as a 'security'. However, in his statement recorded as DW-1, the accused has deposed that he purchased a flat jointly with the complainant, whose sale proceeds were distributed equally amongst the complainant, one Sanjay Sharma and himself. Accused further deposed that the cheque in question was handed over to the complainant towards his share in the sale proceeds of said flat, but later on he (accused) paid the share of complainant in cash and demanded the cheque in question back. Apparently, the accused has taken contradictory and inconsistent stands at different stages of trial, whose effect shall be dealt with later on in this Judgment. Be that as it may, this Court hereby proceeds to assess whether the accused has been able to rebut the legal presumptions.
14. Now we delve into the testimony of complainant, who examined himself as CW-1 and deposed in line with the facts mentioned in the afore- going paragraphs. He was cross-examined at length on behalf of the accused. However, he did not betray any signs of falsity or untruth, nor any inconsistency has been noticed in his oral testimony. In fact, the accused has not given any suggestion disputing the claim of the complainant, made in his affidavit Ex. CW1/H, regarding advancement of friendly loan of Rs. 9,51,500/- in cash to the accused or regarding the handing over the cheque in question by the accused in repayment of the said loan. Except for putting suggestions disputing the liability of the accused or suggestions claiming the cheque in question to be a security cheque, which suggestions were also declined by CW-1, nothing else could be brought on record by the accused contrary to the claim of the complainant during the cross-examination of CW-1. It is a settled law that 'mere denial' of liability is not sufficient to dislodge the statutory presumptions available in favour of complainant Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 22/25 (please see para 20, Rohit Bhai Jivan Lal Patel Vs. State of Gujrat & Ors. MANU/SC/0393/2019). In the considered opinion of this Court, the accused has not been able to rebut the said statutory presumptions in the cross-examination of complainant.
15. This Court had already noted in the aforegoing paragraph that the stand taken by the accused at the time of framing of notice u/s 251 Cr.PC and at the time of recording of his statement u/s 313 Cr.PC is contradictory to the oral testimony of accused recorded at the time of his examination as DW-1. During the earlier stages (u/s 251 Cr.PC and u/s 313 Cr.PC), the accused claims that the cheque in question was issued in favour of complainant as a 'security' at the time of joint purchase of a property and when the said property was sold, complainant failed to return the same. However, while deposing as DW-1, the accused has claimed that he had purchased a flat jointly with the complainant, which was sold and the sale proceeds were distributed amongst the complainant, one Sanjay Sharma and himself. Accused claimed that the share of complainant from the said sale proceeds was handed over to him (complainant) through the cheque in question. However later on, he (accused) paid the share of the complainant in cash and demanded that the cheque in question. But the complainant deferred the matter on one pretext or the other and subsequently filed a false complaint u/s 138 NI Act. Apparently, the accused is blowing hot and cold as to the 'cause' of handing over of the cheque in question to the complainant. At the prior stages of the trial, the accused claims that the cheque in question was issued as a 'Security' to the complainant, but while deposing as a defence witness he claims that the cheque in question was handed over to the complainant in order to pay the share which fell due in favour of the complainant after selling of an immovable property. This Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 23/25 contradiction reflects adversely upon the claim of the accused. That apart, the oral testimony of the accused is liable to be rejected on the grounds (i) that the accused has failed to disclose the details of the flat (immovable property) allegedly purchased jointly with the complainant, (ii) that the accused has failed to furnish the date of purchase of said flat, (iii) that the accused has failed to furnish the date of sale of the said flat, (iv) that the accused has failed to produce the documents related to the sale of said flat despite undertaking so before the Ld. Trial Court, (v) that the accused has failed to specify the date when he handed over the cash to the complainant in order to pay the sum mentioned in the cheque in question and (vi) That the accused has failed to produce any receipt regarding the said payment made in cash to complainant. In the considered opinion of this Court, the oral testimony of accused could not be relied upon in view of above discrepancies. It seems that accused has made a bald statement, which is uncorroborated by any material. As such, his oral testimony is hereby rejected. Having ruled so, it could be safely held that the accused has not been able to rebut the legal presumptions available in favour of the complainant even through defence evidence. The above conclusions dis- entitle the accused of any relief on the basis of citations relied upon by him.
DECISION
16. Since the statutory presumptions available to the complainant remain unrebutted and intact, therefore, we again turn to the evidence of complainant. Admittedly, the cheque in question Ex.CW1/I was dishonoured upon being presented for encashment by the complainant. A legal notice was then sent by the complainant to the accused demanding the amount due under the cheque in question. Service of the said legal notice could be presumed in view of the provisions u/s 27 General Clauses Act as Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 24/25 it was sent by registered post at the admitted address of the accused. (In fact, accused has not bothered to claim, while deposing as DW-1, that he did not receive the legal demand notice). Admittedly, the accused did not bother to make any payment demanded vide the said legal notice within the period prescribed u/s 138 of NI Act. Apparently, all the ingredients of the offence punishable u/s 138 NI Act are available against the accused. Consequently, it has to be held that accused was correctly convicted u/s 138 NI Act. For the afore-going reasons, the impugned judgment dated 06.06.2022 is hereby upheld.
17. So far as the aspect of sentencing by Ld. Trial Court is concerned, I am of the view that Ld. Trial Court has already taken quite a lenient view while sentencing the accused. As such, the sentence imposed by the Ld. Trial Court does not call for any interference. Benefit of Section 428 Cr.P.C. be also given to the accused.
18. Appeal filed by accused therefore stands disposed of in above terms. Announced & Dictated in the Open Court today i.e. 20.11.2023.
(Lovleen) ASJ-03 (South East) Saket Courts, Delhi Crl. Appeal No: 142/2022 Amit Dhingra vs. Nand Kishore & Ors. 25/25