Delhi District Court
Anip Bhatia vs Sanjeev Thakur on 10 January, 2023
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Appeal No. 287/2022
CNR No.: DLCT01-017380-2022
Anip Bhatia
S/o Sh. Chandan Bhatia
R/o F-7/80, 1st Floor, Sector-16
Rohini, Delhi-110089
..... Appellant
VERSUS
Sanjeev Thakur
S/o Sh. Vijay Kumar
R/o H. No. 123, Old Gupta Colony
Delhi-110009
..... Respondent
Date of Institution : 21.12.2022
Date of Arguments : 10.01.2023
Date of Judgment : 10.01.2023
JUDGMENT
1. The criminal appeal under Section 372 of 'The Code of Criminal Procedure, 1973' (In short 'Cr.P.C.') is directed against judgment dated 31.10.2022 and order on sentence dated 25.11.2022 in CC No. 512963/2016 (Old CC No. 7837/2013) titled as 'Sh. Sanjeev Thakur vs. Sh. Anip Bhatia' under Section 138 of 'The Negotiable Instruments Act, 1881' (In short 'NI Act') whereby Ld. MM (NI Act-04), Central District, Tis Hazari Courts, Delhi (In short 'the trial Court') convicted the appellant for committing offence under Section 138 NI Act and sentenced him to simple imprisonment for nine months and fine of Rs. 16,00,000/-, which will be paid to the respondent as 'compensation', and in the event of default, he is further sentenced to simple imprisonment for a period of three months. The trial Court also directed that fine amount will be recoverable irrespective of default sentence of simple imprisonment.
Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 1/23BRIEF FACTS:
2. On 25.04.2013, the respondent (Hereinafter 'the complainant') instituted a complaint under Section 138 NI Act on averments that the appellant was a tenant in the property of his relative. The complainant had friendly relation with the appellant.
The appellant represented him that he is engaged in wholesale business of potato and onion in Old Subzi Mandi and New Subzi Mandi, Azadpur. In the first week of December, 2010, the appellant requested the complainant to advance a 'friendly' loan of Rs. 10,00,000/- for investment in the said business. The appellant assured to return the said loan amount within one and half year. On account of cordial relations, the complainant advanced a cash loan of Rs. 10,00,000/- to the appellant on 09.12.2010 vide promissory note-cum-undertaking. The appellant failed to repay the said loan amount within the stipulated period and promised to pay it by December, 2012. On several requests and demands, the appellant issued a Cheque No. 435478 dated 01.03.2013 in the sum of Rs. 10,00,000/- drawn on 'State Bank of India, Clock Tower, Subzi Mandi, Delhi-110007' (In short 'the said cheque') in favour of the complainant towards repayment of the said loan amount vide endorsement on rear side of the said cheque. On presentation, the appellant's banker returned the said cheque with remark 'FUNDS INSUFFICIENT' vide memo dated 05.03.2013. The complainant sent a demand notice dated 13.03.2013 to the appellant through registered post. The appellant failed to make payment of cheque amount within statutory period despite receipt of demand notice. Hence, the complainant filed the complaint under Section 138 NI Act.
Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 2/23SUMMONING ORDER:
3. The trial Court, vide order dated 16.12.2014, summoned the appellant for offence under Section 138 NI Act.
NOTICE OF ACCUSATIONS UNDER SECTION 251 CR.P.C.:
4. On 10.03.2015, the trial Court explained substance of accusations to the appellant, as required under Section 251 Cr.P.C. His plea of defence is as under:
"I understand the accusation explained over to me from the complaint in respect of the offence under Section 138 NI Act. I do not plead guilty. I know the complainant for the last about 7 years. The complainant used to hold Group Committees and also used to get signed blank papers from the subscriber of the committee alongwith a cheque duly signed by the subscriber which was unfilled as a security. In this case also, I had subscribed a committee against which the complainant took a blank signed cheque and got signed blank document from me as a security of the payment. When the committee matured and ended, I asked for the blank signed cheque alongwith other documents signed by me but the complainant feigned that the cheque and the documents were not traceable and assured me that he would return the same as and when the same are found. The complainant told this to me in the presence of two members of the committee but instead of returning the same, the complainant has misused the cheque in question and also other documents got signed blank from me. The cheque in question bears only my signatures. Other particulars have not been filled in by me. I had not received the legal demand notice from the complainant. I have never refused any postal articles in respect of of the legal demand notice. However, address appearing on legal demand notice is mine. I do not have any outstanding to be paid to the complainant. I want to lead defence evidence."
COMPLAINANT'S EVIDENCE:
5. The complainant (CW-1) filed examination-in-chief vide affidavit Ex.CW1/A. He relied on promissory note-cum-
undertaking Ex.CW1/1, the said cheque Ex.CW1/2, bank memo Ex.CW1/3, demand notice Ex.CW1/4 and postal receipt Ex.CW1/5.
Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 3/236. The complainant examined his brother, namely, Mr. Rajeev Thakur as CW-2 who testified on strength of affidavit Ex.CW2/A. EXAMINATION UNDER SECTION 313 CR.P.C.:
7. Incriminating circumstances appearing in evidence were explained to the appellant to which he responded, as under:
"He pleads that evidence by way of affidavits Ex.CW1/A and Ex.CW2/A and the complaint contain false averments of CW-1 and CW-2 as he has been falsely implicated. He further states that the Promissory Note Ex.CW1/1 bears his signatures. He further states that other documents i.e. cheque Ex.CW1/2 was signed by him but rest of the portion were filled wrongly by the complainant. He further states that the cheque returning memo Ex.CW1/3, Legal Notice Ex.CW1/4 and postal receipt thereof Ex.CW1/5 are matter of record.
In his defence when asked as to why the case has been filed against him, he stated that the cheque in question was blank signed cheque and the same was given to the complainant as a security for committee being run by the complainant. The cheque is without consideration. All the amount has already been paid by him. However, complainant did not return his cheque and filed this false case against him. He further states that he has no liability towards the complainant.
He says that he wishes to lead defence evidence."
APPELLANT'S EVIDENCE:
8. In defence evidence, the appellant appeared as DW-1 and examined his father, namely, Mr. Chandan Bhatia as DW-2.
IMPUGNED JUDGMENT:
9. The trial Court convicted the appellant for offence under Section 138 NI Act on the grounds, as under:
(a) The appellant admitted his signature on the said cheque and presumption under Section 139 NI Act that the said cheque was issued for the discharge of a legally enforceable debt was drawn;Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 4/23
(b) The appellant did not lead any evidence to prove that he was a member of the committee organized by the complainant and the said cheque alongwith blank stamp papers were given as 'security' to the complainant;
(c) Difference in the inks with respect to the date on the said cheque and other particulars thereon are not material alteration under Section 87 NI Act;
(d) The appellant did not lead any evidence that he sent any intimation to his banker to invalidate the said cheque or made any complaint before any competent authority that the complainant failed to return the said cheque and blank stamp papers despite payment of amount of the committee;
(e) The appellant did not reply demand notice under Section 138 NI Act;
(f) The appellant failed to create doubt on credibility and veracity of evidence of the complainant; and
(g) The appellant failed to rebut statutory presumption that the said cheque was issued for the discharge of legally enforceable liability.
CRIMINAL APPEAL:
10. Feeling aggrieved and dissatisfied with the impugned judgment and order on sentence, the appellant preferred the criminal appeal on the grounds, as under:
(a) The trial Court passed the impugned order without appreciating the law and the facts of the case, and failed to exercise jurisdiction vested in it;
(b) The impugned judgment is vague, non-specific, without material particulars and against spirit of law;
(c) The impugned judgment is arbitrary, perverse and based on conjectures and surmises;
(d) The trial Court did not consider that there is no legally enforceable debt against the appellant;
(e) The trial Court did not consider that the appellant rebutted presumption raised in favour of the complainant;
(f) The trial Court did not consider that burden of proof to rebut statutory presumption is not that heavy as in general cases and the standard of burden of proof is preponderance of probabilities;Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 5/23
(g) The trial Court did not consider that mere admission of signature on the said cheque is not an admission of existence of any legally recoverable debt / liability and the appellant cannot be convicted on admission of signature on the said cheque;
(h) The trial Court did not consider that the appellant can rebut presumption under Section 139 NI Act even on the basis of material brought on record by the complainant;
(i) The trial Court did not consider that the appellant demolished the case of the complainant in his cross-
examination and rebutted presumption of legally recoverable liability;
(j) The trial Court did not consider that there was no loan agreement pertaining to the loan transaction in question;
(k) The trial Court did not consider that details in the said cheque were filled in three different inks which suggested that the appellant had given a blank cheque to the complainant who filled his name, date and amount therein and misused it;
(l) The trial Court did not consider that the complainant, in his cross-examination, first denied that he had advanced loan to anybody and thereafter, he stated that he had given loan to his friends and relatives. However, he did not specified the amount he advanced to them;
(m) The trial Court did not consider that the complainant is a practicing advocate and he has not placed his Income Tax Return in support of his case pertaining to loan transaction in question;
(n) The trial Court did not consider that the complainant made false averments that the appellant was engaged in wholesale business of potatoes whereas the appellant was unemployed at that time;
(o) The trial Court did not consider that statutory notice under Section 138 NI Act was not served upon the appellant;
(p) The trial Court did not consider that the appellant had not issued the said cheque for the discharge of any existing legally enforceable liability; and
(q) The trial Court did not consider that the complainant had taken the said cheque and blank papers from the appellant as 'security' for participation in the committee and the said cheque was without consideration.
Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 6/23APPEARANCE:
11. I have heard arguments of Mr. Ankit Kumar Lohan, Advocate for the appellant and examined trial Court record.
CONTENTIONS OF LD. COUNSEL FOR THE APPELLANT:
12. Ld. Counsel for the appellant contended that jurisdiction of the appellate Court is co-extensive with the trial Court. He contended that an appeal cannot be dismissed summarily. He contended that the appellate Court is under legal obligation to re-examine the issues of facts and law. He contended that the standard of proof to rebut presumption under Section 139 NI Act is preponderance of probabilities. He contended that in any case, the case of the complainant must stand on its own legs and he cannot derive any benefit from weakness of the defence raised by the appellant. He contended that the appellant had issued the said cheque and blank signed stamp paper as 'security' to secure the amount of the committee organized by the complainant. He contended that the appellant paid the amount of the committee. However, the complainant did not return blank signed cheque and blank signed stamp paper and misused them for filing the present case. He contended that it is highly improbable that the complainant would advance such huge amount of loan to the extent of Rs. 10,00,000/- to an unemployed person without taking any security. He contended that CW-2 Rajeev Thakur, in his cross-examination, stated that loan was advanced in the presence of father of the appellant. He contended that father of the appellant, namely, Chandan Bhatia was not made witness to promissory note-cum-undertaking Ex.CW1/1.
Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 7/2313. Ld. Counsel for the appellant contended that the complainant made witness his brother, namely, Sanjeev Thakur and friend, namely, Rakesh to promissory note-cum-undertaking Ex.CW1/1. He contended that name of the 'payee' and amount in 'figure' and 'words' are written in two different inks and handwriting. He contended that this shows that the appellant had given a blank signed cheque and the complainant filled the name of the 'payee' and amount in 'figure' and 'words'. He contended that the complainant has not disclosed his source of income. He contended that the complainant has not filed his Income Tax Return. He contended that there is no loan agreement. He contended that the complainant is in habit of filing such cases against several persons and he is a habitual litigant. He contended that the appellant had never taken any loan from the complainant. He contended that the appellant was never served with demand notice. He contended that the appellant rebutted presumption of existence of a legally enforceable debt. He contended that the impugned judgment and order on sentence deserve to be set- aside.
14. Section 384 Cr.P.C. is as under:
"384. Summary dismissal of appeal.-(1) If upon examining the petition of appeal and copy of the judgment received under section 382 or section 383, the Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily:
Provided that -
(a) no appeal presented under section 382 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same;Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 8/23
(b) no appeal presented under section 383 shall be dismissed except after giving the appellant a reasonable opportunity of being heard in support of the same, unless the Appellate Court considers that the appeal is frivolous or that the production of the accused in custody before the Court would involve such inconvenience as would be disproportionate in the circumstances of the case;
(c) no appeal presented under section 383 shall be dismissed summarily until the period allowed for preferring such appeal has expired. (2) Before dismissing an appeal under the section, the Court may call for the record of the case. (3) Where the Appellate Court dismissing an appeal under this section is a Court of Session or of the Chief Judicial Magistrate, it shall record its reasons for doing so.
(4) Where an appeal presented under section 383 has been dismissed summarily under this section and the Appellate Court finds that another petition of appeal duly presented under section 382 on behalf of the same appellant has not been considered by it, that Court may, notwithstanding anything contained in section 393, if satisfied that it is necessary in the interests of justice so to do, hear and dispose of such appeal in accordance with law."
15. On examination of Section 384 Cr.P.C., it is evident that an appellate Court has jurisdiction to dismiss an appeal summarily. However, the appellate Court must provide the appellant a reasonable opportunity of being heard. SCOPE OF JURISDICTION OF FIRST APPELLATE COURT:
16. The jurisdiction of the appellate court is co- extensive with that of the trial Court. The powers of the appellate Court under Section 386 Cr.P.C. are the same as that of the trial Court. In an appeal from a conviction, it is for the appellate Court to be satisfied affirmatively that prosecution case is substantially established and record its own findings to confirm conviction.
Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 9/2317. In Rajan vs. State of M.P., (1999) 6 SCC 29, Hon'ble Supreme Court of India held, as under:
"3.....It cannot be forgotten that the appellate court's jurisdiction is co-extensive with that of the trial court in the matter of assessment, appraisal and appreciation of the evidence and also to determine the disputed issues....."
18. In Narender Bhat vs. State of Karnataka, (2009) 17 SCC 785, Hon'ble Supreme Court of India held, as under:
"3. This Court has in a series of judgments held that a court exercising appellate power must not only consider questions of law but also questions of fact and in doing so it must subject the evidence to a critical scrutiny....."
STATUTORY PROVISION:
19. Section 138 NI Act is as under:
"138. Dishonour of cheque for insufficiency, etc., of funds in the account. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless -
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 10/23
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."
20. In Gimpex Private Limited vs. Manoj Goel, 2021 SCC OnLine SC 925, Hon'ble Supreme Court of India delineated ingredients of offence under Section 138 NI Act, as under:
"25. The ingredients of the offence under Section 138 are:
(i) The drawing of a cheque by person on an account maintained by him with the banker for the payment of any amount of money to another from that account;
(ii) 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;
(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 arranged to be paid from that account;
(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 the holder in due course within 15 days of the receipt of the notice."Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 11/23
POINTS FOR CONSIDERATION:
(a) Whether the appellant had drawn the said cheque on an account maintained by him with a banker?
21. The appellant, in response to substance of accusations explained to him under Section 251 Cr.P.C., admitted that he had issued the said cheque to the complainant, as under:
".....The cheque in question bears only my signatures....."
22. The appellant, in his examination under Section 313 Cr.P.C., admitted that promissory note-cum-undertaking Ex.CW1/1 and the said cheque Ex.CW1/2 were signed by him, as under:
".....He further states that the Promissory Note Ex.CW1/1 bears his signatures. He further states that other documents i.e. cheque Ex.CW1/2 was signed by him....."
23. The appellant admitted, in his examination-in- chief, that the said cheque was signed by him, as under:
".....The said cheque was given by me to the complainant for the aforesaid purpose the said cheque was only signed by me the rest of the particulars would not filled up and same was not in my hand....."
24. Therefore, the appellant had drawn the said cheque in favour of the complainant on an account maintained by him with a banker.
(b) Whether presumptions under Section 118 and 139 NI Act were rightly drawn against the appellant?
25. Once the appellant admitted issuance of the cheque in favour of the complainant, 'reverse onus' clauses under Section 118 and 139 NI Act become operative.
Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 12/2326. In Kalamani Tex and Another vs. P. Balasubramanian, (2021) 5 SCC 283, Hon'ble Supreme Court of India held, as under:
"13.....The statute mandates that once the signature(s) of an accused on the cheque / negotiable instrument are established, then these "reverse onus" clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him....."
(c) What is the effect of presumption under Section 139 NI Act?
27. Ld. Counsel for the appellant contended that presumption under Section 139 NI Act does not extend to presumption of existence of any legally recoverable debt or liability.
28. The appellant has raised this contention in ground No. 10 (i) of the Memorandum of Appeal, as under:
"i. Because the Ld. trial court has failed to appreciate and consider that mere admission of the signatures by the accused / appellant in the cheque in question does not in any manner admit the existence of any legally recoverable liability / debt and the accused cannot be solely convicted on the admission of signatures in the cheque."
29. The presumption under Section 139 NI Act includes presumption of existence of a legally enforceable debt or liability.
30. In Rangappa vs. Sri Mohan, (2010) 11 SCC 441, Hon'ble Supreme Court of India held, as under:
"26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat may not be correct....."Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 13/23
(d) What is the mode of rebuttal of statutory presumptions under 118 and 139 NI Act?
31. In order to rebut statutory presumptions under Section 118 and 139 NI Act, the appellant can lead direct evidence or rely upon evidence adduced by the complainant to show that consideration or debt did not exist or non-existence of consideration or debt is probable. The appellant must raise a 'probable defence' and the standard of proof is 'preponderance of probabilities'.
32. In Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513, Hon'ble Supreme Court of India held, as under:
"20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist....."Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 14/23
(e) Whether the appellant raised a probable defence to rebut statutory presumptions under Section 118 and 139 NI Act?
33. As regards contention that it is highly improbable that the complainant would advance such huge amount of loan to the extent of Rs. 10,00,000/- to an unemployed person, it can be stated that the appellant did not state, in his plea of defence under Section 251 Cr.P.C., that he was unemployed on 09.12.2010. The appellant did not make any suggestion to the complainant, in his cross-examination, that he was unemployed on 09.12.2010. The appellant did not state, in his examination, that he was unemployed. However, he stated, in his cross- examination, that he was unemployed in 2013. Moreover, the appellant and the complainant are residing in the same vicinity. The appellant admitted, in his plea of defence under Section 251 Cr.P.C., that he knew the complainant since 7 years. The complainant, in his cross-examination, stated that he knew the appellant since 2003. He stated that house of the appellant is near his office. The appellant admitted that he had a small vegetable shop in 2010. The appellant's father, namely, Chandan Bhatia (DW-2) stated that he knew the complainant since 2009 and he had a shop of vegetables in Mandi and the complainant used to visit his shop. Therefore, there is sufficient material that the complainant and the appellant were residing in same vicinity and known to each other. The appellant was running a shop of vegetables in the area. Therefore, no such presumption that it is highly improbable that the complainant would advance loan of Rs. 10,00,000/- to the appellant. Moreover, the loan was secured with the said cheque Ex.CW1/2 and a promissory note-cum- undertaking Ex.CW1/1.
Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 15/2334. As regards contention that Mr. Chandan Bhatia (DW-2) was not made a witness to promissory note-cum- undertaking Ex.CW1/1, it can be stated that the appellant stated, in his examination-in-chief, that he purchased the stamp paper and handed it over to the complainant. The appellant, in his cross-examination, admitted his signature and thumb impression at point 'B' and 'C' respectively on rear side of promissory note- cum-undertaking Ex.CW1/1. The appellant, in his cross- examination, admitted his signature at point 'A' on promissory note-cum-undertaking Ex.CW1/1. CW-2 Rajeev Thakur is a witness to promissory note-cum-undertaking Ex.CW1/1. He stated that the complainant had given the amount to the appellant in his office in his presence. He stated that father of the appellant was present at the time of execution of promissory note-cum- undertaking Ex.CW1/1. He stated that promissory note-cum- undertaking Ex.CW1/1 first signed by the appellant and he signed it and thereafter, Mr. Rakesh signed it. The complainant, in his cross-examination, stated that promissory note-cum- undertaking Ex.CW1/1 was executed on the date of advancement of loan. He stated that the appellant had handed over a duly filled cheque. He stated that contents and signature on the back of the cheque were also written by the appellant. A perusal of rear side of the said cheque would show that there is an endorsement made by the appellant that '.....yeh cheque main udhar chukta karney ke liye de raha hun. (This cheque is being issued by me for the purpose to clear the borrowed amount).....'. Therefore, absence of signature of the appellant's father on promissory note-cum- undertaking Ex.CW1/1 is not sufficient to doubt the case of the complainant.
Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 16/2335. As regards contention that the signature and name of the 'payee' and amount in 'figure' and 'words' were written in different inks, it can be stated that the appellant admitted issuance of the said cheque in favour of the complainant. He admitted his signature on the said cheque. The complainant, in his cross-examination, categorically stated that he had not filled the particulars in the said cheque and the appellant had handed over a duly filled cheque to him. Therefore, it cannot be stated that the complainant made any material alteration in the said cheque.
36. In Bir Singh vs. Mukesh Kumar, (2019) 4 SCC 197, Hon'ble Supreme Court of India held, as under:
"34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This is itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
* * *
36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."
37. As regards contention that the complainant has not disclosed his source of income and he has not filed his Income Tax Return, it can be stated that the appellant never challenged financial capacity of the complainant. He did not reply the demand notice. He did not challenge his financial capacity in his plea of defence under Section 251 Cr.P.C. or examination under Section 313 Cr.P.C. Moreover, the appellant taken the defence that the complainant used to organize committees in his area.
Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 17/2338. In Tedhi Singh vs. Narayan Dass Mehant, 2022 SCC OnLine SC 302, Hon'ble Supreme Court of India, while dealing with a contention regarding financial capacity of the respondent to advance loan, held as under:
"9. The trial Court and the First Appellant Court have noted that in the case under Section 138 of the N.I. Act the complainant need not show in the first instance that he had the capacity. The proceedings under Section 138 of the N.I. Act is not a civil suit. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent the Courts in our view were right in holding on those lines....."
39. While dealing with a similar contention in Barun Kumar vs. State of NCT of Delhi and Another, 2021 SCC OnLine Del 3498: (2021) 281 DLT 463, Hon'ble High Court of Delhi held, as under:
"12. The petitioner has not been able to rebut the presumption under Section 139 of the N.I. Act. He has not denied his signatures in the cheques. He does not deny the fact that the receipt dated 18.12.2010 was given by him which acknowledges a sum of Rs. 15,00,000/- taken as loan. As stated above, the fact that the receipt does not show as to from whom the loan of Rs. 15,00,000/- was taken is immaterial and inconsequential for the reason that it is the complainant who has filed the receipt (CW-1/A) and cheque (CW-1/A1) which is in the name of the complainant and duly signed by the petitioner. The mere ipse dixit of the petitioner and the statement in defence under Section 313 Cr.P.C. without any material does not rebut the presumption cast on the petitioner under Section 139 of the N.I. Act. Just by contending that the Income Tax Returns have not been filed or by stating that complaints have been filed by the complainant against the accused does not rebut the presumption of the petitioner even on preponderance of probabilities. The fact that the loan has been given in violation of Section 269 SS of the IT Act does not mean that the Court cannot look into the documents at all.Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 18/23
The learned counsel for the petitioner is correct that Section 269 SS of the IT Act mandates that loan in any amount over Rs. 20,000/- has to be by way of amount payee cheque or account payee bank draft or by use of electronic clearing system through a bank account. Offence Section 269 SS IT Act at best makes an offence under Section 271 D of the IT Act but it does not mean that the loan of Rs. 15,00,000/- has not been given by the complainant to the petitioner herein. Both the courts below have relied on the judgment of the Bombay High Court in Krishna P Morajkar v. Joe Ferrao, 2013 SCC OnLine Bom 862, wherein the High Court observed as under:
"26.....the entire scheme of the Income Tax Act is for ensuring that all amounts are accounted. If some amounts are not accounted. 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. Infractions 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....."
40. Interestingly, the appellant is contending that the complainant is a habitual litigant as he had advanced loan to several persons including his relatives and friends and further that the complainant is organizing committees in his area and at the same time, he is challenging financial capacity of the complainant. In the face of acknowledgement made by the appellant on rear side of the said cheque duly corroborated by promissory note-cum-undertaking Ex.CW1/1, this Court does not find any force in contention of Ld. Counsel for the appellant that advancement of loan is shrouded in doubt as the complainant has not disclosed his source of income and he has not filed Income Tax Return and there is no loan agreement.
Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 19/2341. As regards contention that the complainant was organizing committees in his area and the appellant was a subscriber thereof and the complainant had taken a blank signed cheque and blank signed stamp paper as 'security' and he did not return the said documents on the maturity of the committee, it can be stated that the appellant has not stated as to when such committee was organized, what was the amount of the said committee, what was the subscription of the appellant and who were members of the said committee. In cross-examination of the complainant, the appellant suggested name of subscribers of the said committee as 'Nitin Bajaj' and 'Balraj Gupta'. However, the appellant, in his cross-examination, stated that he has no document to prove that he was a subscriber of the said committee. He feigned ignorance about disclosure of this fact in civil suit filed by the complainant against him. DW-2 Chandan Bhatia stated that he never participated in any committee organized by anyone. He stated that the said cheque and stamp paper were not given in his presence. Surprisingly, the appellant, in his affidavit filed alongwith application for leave to defend in suit under Order 37 of 'The Code of Civil Procedure, 1908' did not raise this defence. His defence was that in 2009-10, he developed habit of playing 'satta' and he was forced to give a blank signed cheque to the complainant, as under:
"6. That the Deponent states that in early 2009-2010 he had developed a bad habit of playing "Satta", on the initiation of the Plaintiff and his brother and during the end of 2010 he was forced to give Signed Blank Cheque bearing No. 435478 and a Blank Stamp paper to the Plaintiff. Further this fact was not in the knowledge of the father of the Deponent."Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 20/23
42. As regards contention relating to non-receipt of demand notice, it can be stated that the complainant sent demand notice to the appellant at his correct address. He has filed postal receipt Ex.CW1/5. The appellant admitted, in his plea of defence under Section 251 Cr.P.C., that the address on the demand notice is correct. There is presumption of service of demand notice by the postal authorities in due course. The appellant has not led any evidence to prove the contrary. Therefore, the trial Court rightly concluded that the appellant was duly served with demand notice Ex.CW1/4. In any other case, the appellant could have paid the cheque amount within 15 days from the date of receipt of summon of the complaint.
43. In C.C. Alavi Haji vs. Palapetty Muhammed and Another, (2007) 6 SCC 555, Hon'ble Supreme Court of India held, as under:
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation....."Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 21/23
44. The appellant has failed to raise any probable defence to rebut presumption of existence of legally recoverable liability.
CONCLUSION:
45. The appellant was rightly convicted for committing offence under Section 138 NI Act.
Ld. Counsel for the appellant contended that sentence of imprisonment is on higher side.
In Kalamani Tex & Anr. vs. P. Balasubramanian (supra), Hon'ble Supreme Court of India held, as under:
"19.....It is also well settled that there needs to be a consistent approach towards awarding compensation and unless there exist special circumstances, the courts should uniformly levy fine up to twice the cheque amount along with simple interest @ 9% p.a."
The trial Court rightly sentenced the appellant for a simple imprisonment for nine months and fine of Rs. 16,00,000/- and in default thereof, simple imprisonment for three months. The trial Court rightly awarded fine amount of Rs. 16,00,000/-, as compensation, to the complainant in view of the fact that the cheque amount was Rs. 10,00,000/- and the said cheque was dishonoured on 05.03.2013. Accordingly, the appeal filed by the appellant challenging conviction under Section 138 NI Act as well as order on sentence is dismissed. A copy of judgment alongwith trial Court record be sent to trial Court. A copy of judgment be provided to Ld. Counsel for the appellant. The criminal appeal file be consigned to record room.Digitally signed SANJAY by SANJAY SHARMA SHARMA Date: 2023.01.10 16:56:00 +0530 Announced in the open Court SANJAY SHARMA-II on this 10th January, 2023 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 22/23 Anip Bhatia vs. Sanjeev Thakur CNR No.: DLCT01-017380-2022 Crl. Appeal No. 287/2022 10.01.2023 Present : Mr. Ankit Kumar Lohan, Advocate with the appellant.
Ld. Counsel for the appellant addressed arguments. Vide separate judgment, the appeal filed by the appellant challenging conviction under Section 138 NI Act as well as order on sentence is dismissed. The criminal appeal file be consigned to record room.
Digitally signedSANJAY by SANJAY SHARMA SHARMA Date: 2023.01.10 16:56:14 +0530 Sanjay Sharma-II ASJ-03, Central District Tis Hazari Courts, Delhi 10.01.2023 Crl. Appeal No. 287/2022 Anip Bhatia vs. Sanjeev Thakur Page No. 23/23