Delhi District Court
Devender Aggarwal vs Ajit Parsad Bansal on 31 May, 2024
IN THE COURT OF SH. SUSHIL KUMAR,
ADDL. SESSIONS JUDGE-04
NORTH DISTRICT, ROHINI COURTS, DELHI.
CNR No. DLNT01-008728-2022
CA No.144/2022
DEVENDER AGGARWAL
S/o Sh. Ramrechpal Aggarwal,
R/o: R-99/1, Model Town,
Delhi-110009.
....Appellant
VS.
AJIT PRASAD BANSAL
S/o Sh. Netram Bansal,
R/o: A-10, G. T. Karnal Road,
Adarsh Nagar,
Delhi-110033. ....Respondent
Date of Institution of Appeal : 23.09.2022
Date on which judgment pronounced : 31.05.2024
JUDGMENT
1. This is a Criminal Appeal U/s 374 Cr.PC., filed by Sh. Devender Aggarwal, appellant herein (accused in the Ld. Trial Court) against the impugned judgment of conviction dated 16.08.2022 and order on sentence dated 24.08.2022 (hereinafter referred to as impugned judgment & order on sentence) passed by the Court of Ms. Neha Pandey, Ld.MM, North-District, Rohini Courts, Delhi, (hereinafter referred as Ld. Trial Court) in CC Devender Aggarwal Vs. Ajit Prasad Bansal CA No. 144/2022 Page No.1 of 14 No.4137/2017, titled as 'Ajit Prasad Bansal Vs. Devender Aggarwal', whereby the Ld. Trial Court has convicted the appellant / accused for the offence punishable under section 138 of NI Act.
2. Feeling aggrieved, the appellant/accused challenged the aforesaid impugned judgment and impugned order on sentence of the Ld. Trial Court by filing the present appeal on the following grounds:
i) Because the impugned judgment of conviction as well as order on sentence passed by Ld. Trial Court is without appreciating the facts, evidence placed on record and defence raised by appellant.
ii) Because the Ld. Trial Court has failed to consider that there is lot of contradiction in the complaint filed before the Court and the chief-examination of respondent in which he made improvement into the complainant filed by him. That the Ld. Trial Court failed to observe the deviation and contradiction.
iii) Because the Ld. Trial Court has failed to appreciate that the respondent has alleged to have given loan in cash of Rs.15,00,000/- and the same is not permitted under the Income Tax Act and advancing loan in cash in excess of Rs.20,000/- is Devender Aggarwal Vs. Ajit Prasad Bansal CA No. 144/2022 Page No.2 of 14 an offence punishable under section 269 SS of the Income Tax Act.
iv) Because the Ld. Trial Court has failed to appreciate that the respondent in his evidence has specifically stated that on 28.07.2016, the respondent had given a friendly loan of Rs.15,00,000/- to the appellant in cash which the appellant had promised to return in the three months. That the respondent in his cross-examination has stated that a sum of Rs.15,00,000/-
was given as loan to the appellant on 28.07.2016 in the presence of his son Sahil Bansal. Thus, it is very improbable that a person would lend money to anybody when the persons taking loan has not repaid the earlier loan. That, moreover, the persons in whose presence the respondent is alleging to have advanced the loan have not been examined as complainant. The Ld. Trial Court has failed to appreciate the said fact while passing the impugned order.
v) That the Ld. Trial Court has failed to appreciate that the financial condition of the respondent was not such as to advance a loan of Rs.15,00,000/- to the appellant and the respondent was himself stating that the respondent arranged funds of Rs.15,00,000/- at interest of 24% and the respondent never disclosed the name of person, from whom, the accused Devender Aggarwal Vs. Ajit Prasad Bansal CA No. 144/2022 Page No.3 of 14 arranged the funds, the said persons were not examined as witnesses by the respondent to prove his case and this itself casts a doubt on the story of the respondent.
vi) That Ld. Trial Court while passing the impugned order failed to appreciate that the appellant have received the said loan but without any interest, the appellant has already been paid amount within three months, the appellant did not hand over any acknowledgment of receiving of payment at the time of payment, Ld. Trial Court while passing the impugned order failed to appreciate that the appellant had given the cheques to the respondents for the security purpose and the respondent had misused the cheques of appellant in present complaint.
vii) That the Ld. Trial Court has failed to appreciate that the appellant in his defence that the appellant in his defence has stated that the appellant after making payment of loan, he demanded cheques from the respondent but he said that the cheques are not available at this time, he will sent those to the appellant at his office and he did not hand over any acknowledgment of receiving of payment at the time of receiving payment.
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(viii) That the Ld.Trial Court has failed to appreciate that the respondent has misused the cheques of the appellant which were lying with the respondent.
3. It is prayed on behalf of appellant/accused that the impugned judgment dated 16.08.2022 and order on sentence dated 24.08.2022 are bad in law and against the facts and circumstances of the present case, hence, not tenable in the eyes of law, therefore, same may kindly be set-aside.
4. Ld. Counsel for the respondent/complainant has refuted the contentions raised by the appellant/accused in his appeal. It is argued that the Ld. Trial Court has rightly passed the judgment in favour of the respondent / complainant. It is argued on behalf of respondent/complainant that the appellant/accused had issued the cheques in question in discharge of his liability towards the respondent/complainant and that the same got dishonored on presentation. It is further argued on behalf of respondent/complainant that the appellant/accused had failed to repay the amount of cheques in question despite service of legal demand notice and hence, the present complaint case was filed against him wherein he has rightly been convicted by the Ld. Trial Court after following the procedure established by law. It is Devender Aggarwal Vs. Ajit Prasad Bansal CA No. 144/2022 Page No.5 of 14 submitted that the present appeal has been filed only to drag on the matter. It is prayed that the present appeal may kindly be dismissed.
5. This Court has given thoughtful consideration to the arguments advanced on behalf of ld. Counsel for the appellant/accused and Ld. Counsel for respondent/Complainant.
6. Trial Court Record has been summoned by this Court. Perusal of the Trial Record shows that it is the case of respondent/complainant as mentioned in his complaint under Section 138 of Negotiable Instruments Act are that complainant and appellant are friends and shared family relations. That appellant/ accused in the month of July-2016, approached the complainant for financial assistance of Rs. 15,00,000/- and the complainant arranged the same at the interest of 24% per annum. That it is further stated an agreement dated 28.07.2016 was also executed between him and the appellant/accused in this regard. That in order to clear liability of appellant, the appellant issued three cheques bearing no.682924, 682925 and 682929 all three dated 24.07.2017 for an amount of Rs.5 lacs each drawn on UCO Bank, Model Town Branch, Delhi. That the respondent/complainant deposited the cheques in question in his bank for encashment, however, the same got dishonored on its presentation by the banker vide Bank Return Memo dated 25.07.2017 with the remarks 'Funds Insufficient'. That the Devender Aggarwal Vs. Ajit Prasad Bansal CA No. 144/2022 Page No.6 of 14 complainant was constrained to issue legal notice dated 05.08.2017 to appellant through his counsel for making payment of the amount of cheque in question and to discharge his liability within 15 days and on failure of appellant to repay the liability within 15 days, lead to the filing of the present complaint.
7. Perusal of Trial Court Record further shows that thereafter, the respondent/complainant filed a complaint case under Section 138 of The Negotiable Instruments Act and led pre-summoning evidence, upon which summons were issued to the appellant/accused and notice under Section 251 Cr.P.C. was served upon the appellant/accused, to which he pleaded not guilty and claimed trial. Appellant/accused admitted that all the three cheques in question pertains to his bank account and have been signed by him. That he has already made full payment to complainant and respondent/complainant has misused the cheques in question. That there is also in writing that son of complainant has received the payment. That he did not receive any legal demand notice, however, he admitted that the address mentioned on legal demand notice is correct address. Appellant /accused has taken defence that he does not have any legal liability towards the complainant.
8. Perusal of the Trial Court Record further shows that respondent/complainant led post-summoning evidence by adopting Devender Aggarwal Vs. Ajit Prasad Bansal CA No. 144/2022 Page No.7 of 14 his affidavit which was tendered in pre-summoning evidence and also relied upon the documents. The respondent/complainant was cross-examined on behalf of the appellant/accused at length. Thereafter, CE was closed and statement of accused under section 313 Cr. P.C. was recorded whereby appellant/accused pleaded innocence and false implications and he wished to lead Defence Evidence (DE), however, appellant / accused failed to lead defence evidence, therefore, DE was closed and the matter was fixed up for final arguments.
9. Perusal of Trial Court Record further shows that final arguments were heard from both the sides and thereafter, Ld. Trial Court convicted appellant /accused for the offence punishable under section 138 of Negotiable Instruments Act, 1881 vide impugned judgment dated 16.08.2022 and sentenced the appellant/accused to undergo simple imprisonment for a period for six months vide order on sentence dated 24.08.2022. Further, appellant/accused was also directed to pay compensation amounting to Rs.30,00,000/- to complainant and in-default of payment of compensation, convict shall undergo further simple imprisonment for a period of ninety days.
10. It is trite in law that in the prosecution under Section 138 Negotiable Instruments Act, the statutory presumptions under Devender Aggarwal Vs. Ajit Prasad Bansal CA No. 144/2022 Page No.8 of 14 Sections 118 and 139 Negotiable Instruments Act stands in favour of the complainant. Once the complainant proves that the negotiable instrument/cheque is executed by the maker in favour of the holder of the cheque, the law presumes that the same is drawn for consideration and the holder of the same received it in discharge of any debt or liability. The burden shifts on the shoulder of the accused to prove to the contrary, which he can do so by demolishing the case of complainant through cross-examination or by leading any cogent evidence in defence. The burden on the accused is not heavy as that of complainant but only of preponderance of probabilities.
11. The Hon'ble Supreme Court of India in K. Bhaskaran Vs. Sankaran Vaidhya Balan (1999) 7 SCC 510 summarized the ingredients of the offence under Section 138 Negotiable Instruments Act. The relevant extract is reproduced below for reference:-
"The offence U/s 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 of the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make the payment within 15 days of the receipt of notice."
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12. In the present case, the respondent/complainant has discharged his burden of prima-facie case by leading evidence by satisfying the basic ingredients of Section 138 of Negotiable Instruments Act. The burden shifted upon the appellant/accused to rebut the presumptions under Section 118 & 139 Negotiable Instruments Act standing in favour of the respondent/complainant. The appellant/accused has not led defence evidence in the present case. This Court will now analyze whether the appellant/accused has been able to show the preponderance of probabilities in his favor by the cross-examination of the complainant's witnesses or by pointing out the fallacies in the complainant's version to prove the non- existence of any debt or liability.
13. The case of the respondent/complainant is that appellant/ accused in the month of July-2016, approached the complainant for financial assistance of Rs. 15,00,000/- and the complainant arranged the same at the interest of 24% per annum. That it is further stated an agreement dated 28.07.2016 was also executed between him and the appellant/accused in this regard. That in order to clear liability of appellant, the appellant issued three cheques bearing no.682924, 682925 and 682929 all three dated 24.07.2017 for an amount of Rs.5 lacs each drawn on UCO Bank, Model Town Branch, Delhi. That the respondent/complainant deposited the cheques in question in his bank for encashment, however, the same got dishonored on its Devender Aggarwal Vs. Ajit Prasad Bansal CA No. 144/2022 Page No.10 of 14 presentation by the banker vide Bank Return Memo dated 25.07.2017 with the remarks 'Funds Insufficient'. That the complainant was constrained to issue legal notice dated 05.08.2017 to appellant through his counsel for making payment of the amount of cheque in question and to discharge his liability within 15 days and on failure of appellant to repay the liability within 15 days, lead to the filing of the present complaint.
14. It is important to mention that the appellant / accused had taken defence at the time of framing of notice under Section 251 Cr.P.C. as well as during his examination under section 313 Cr. PC that he had already paid the amount of loan taken from the complainant and that the cheques in question were given by him as a security which was later on misused by the complainant. Appellant/accused further took the defence that he has not received any legal notice. However, appellant/accused has admitted the fact that he had issued all three cheques-in-question to respondent/complainant as a security and all the cheques-in- questions bears his signature.
15. Be that as it may, it is not in dispute that cheque in question bears signature of appellant / accused which belongs to him, however, appellant/accused has taken defence that he has already repaid the loan amount to respondent/complainant and his cheques Devender Aggarwal Vs. Ajit Prasad Bansal CA No. 144/2022 Page No.11 of 14 have been misused by respondent/complainant and that he is not liable to pay the amount of cheques in question.
16. It is pertinent to mention that neither any complaint has been made by appellant/accused to police or to any other authorities regarding the misuse of cheques in question by complainant nor any such complaint has been proved on record during the trial. It is further important to mention that appellant/accused has not lead any defence evidence to prove his averments/evidence. Merely taking the defence that the complainant / respondent has misused the cheques in question is not sufficient to rebut the presumptions in favour of respondent/complainant when no complaint in writing in this respect was ever made by appellant/accused.
17. From the whole Trial Court Record, it is clear that respondent/ complainant has been able to raise presumptions as per prescribed in NI Act and the appellant/accused has not been able to rebut the same. In the present case, signatures of the appellant/accused on the cheques in question is admitted. However, he has taken a defence that the cheques in question have been misused by the respondent/complainant but there is nothing on record to suggest any misuse on the part of respondent / complainant.
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18. In the present appeal, it is contended that the respondent / complainant has failed to prove that the appellant/accused was liable to pay the amount of cheques in question to the respondent/complainant. Here it is pertinent to note that the presumption under Section 118 and 139 Negotiable Instruments Act stands in favour of the complainant regarding consideration and legally enforceable debt/liability, it is the accused who had to rebut these presumptions by showing probable defence in his favour. The defence version is found to be bald and contradictory. The respondent/complainant was cross-examined on behalf of the appellant / accused but nothing has come on record which could form a probable case in favour of the appellant/accused.
19. After going through the complete record of the case, this Court unflinchingly holds that the appellant/accused could not make out a probable defence in his favour and failed to show any preponderance of probabilities to his benefit.
20. In totality of the facts and circumstances of this case, this Court is of the considered opinion that the appellant/accused has miserably failed to prove his defence on the preponderance of probabilities and have consequently, failed to rebut the presumptions under Sections 118 and 139 Negotiable Instruments Act standing in favour of the respondent/complainant. Thus, the conviction of the Devender Aggarwal Vs. Ajit Prasad Bansal CA No. 144/2022 Page No.13 of 14 appellant/accused under Section 138 Negotiable Instruments Act by the Ld. Trial Court stands completely justified. The impugned order on sentence passed by the Ld. Trial Court is detailed and well reasoned.
21. This Court finds the impugned judgment dated 16.08.2022 and impugned order on sentence dated 24.08.2022 passed by Ld. Trial Court to be free from any illegality, infirmity or perversity. No interference is warranted. Therefore, the present appeal filed by the appellant/accused, is hereby dismissed and impugned judgment dated 16.08.2022 and order on sentence dated 24.08.2022 passed by the Ld. Trial Court are accordingly upheld.
22. Trial Court Record be sent back to the Ld. Trial Court along with a copy of this judgment to execute the order on sentence passed by the Ld. Trial Court.
23. Appeal file be consigned to Record Room after due compliance.
Pronounced in open Court, on this 31st day of May, 2024.
(SUSHIL KUMAR) Additional Sessions Judge-04, North District: Rohini Courts Delhi.
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