Delhi District Court
Bateshwar Jha vs Shyam Nandan Jha on 18 November, 2023
IN THE COURT OF MS. SHAIL JAIN
PRINCIPAL DISTRICT & SESSIONS JUDGE
EAST DISTRICT : KARKARDOOMA COURTS, DELHI.
CRIMINAL APPEAL NO. 24/2023
Bateshwar Jha
S/o Late Sh. Dukhmochan Jha,
House No. 130,
Near BLW Road, Rohania,
Varanasi, U.P.-221108.
... APPELLANT
VERSUS
Shyam Nandan Jha
S/o Late Indernath Jha
Chamber No. G-77,
KKD Courts,
Delhi-110092.
...RESPONDENT
Date of Institution : 14.02.2023
Arguments Heard : 13.10.2023
Date of Decision : 18.11.2023
JUDGMENT
1. This is an appeal filed by the appellant/accused challenging the impugned judgment dated 04.01.2023, of his conviction under Section 138 N.I. Act, and order on sentence dated 17.01.2023 vide which he has been sentenced to pay fine of CA No. 24/2023 Bateshwar Jha vs. Shyam Nandan Jha Page 1 of 21 Rs.5,20,000/- to the complainant, as compensation, within 30 days and in default of payment of compensation, convict was to undergo SI for a period of one month.
2. The facts in brief are that the respondent/complainant had filed a complaint under Section 138 Negotiable Instruments Act (hereinafter referred to as 'the N.I. Act') stating that appellant/accused is his far relative and they were having friendly relations. It is stated that accused was in urgent need of money on account of marriage of his daughter in November, 2014 and thus he approached the complainant for a friendly loan. Complainant advanced a friendly loan of Rs.30 lakhs to the appellant between the period from October to November, 2014. On demand to return the abovesaid friendly loan, appellant/accused issued a cheque bearing no. 162627 dated 06.04.2017 in the sum of Rs.4,00,000/- drawn on ICICI Bank, Patparganj, Delhi to the respondent. The said cheque on presentation, got dishonoured with remarks 'Insufficient funds'. Complainant/ respondent sent a legal demand notice dated 08.06.2017 demanding the amount due, which he failed to pay, hence, the complainant/respondent filed a complaint under section 138 NI Act against the appellant. Accused was summoned, notice under Section 251 Cr.P.C. was served upon him. Both the parties led their evidence. Statement of accused was recorded. After hearing counsels for both the parties, impugned judgment of conviction and order on sentence were passed against the appellant. Feeling aggrieved with the same, appellant preferred the present appeal.
CA No. 24/2023 Bateshwar Jha vs. Shyam Nandan Jha Page 2 of 213. Notice of the present appeal was issued to the complainant/respondent. Respondent appeared and filed a detailed reply/written arguments, raising similar pleas as taken in his complaint with the prayer that present appeal be dismissed.
4. It is argued by Ld. Counsel for the appellant that complainant had earlier filed a complaint under Section 138 N.I. Act, which was dismissed being pre-mature, hence, second complaint is not maintainable. It is further argued that no specific date / amount of giving loan to accused is mentioned. It is further submitted that complainant in his evidence had not mentioned any word of 'loan'. No legal notice was ever served on the accused as accused had sold his first address in 2016, second address of Gaziabad belongs to in-laws of his daughter and third address is of his village, where he never resided. It is further argued that complainant/respondent had not mentioned his address in the memo of complaint which raises doubt about authenticity of transaction between the parties. It is further argued that bank account of which cheque was allegedly given, was already closed in 2013. It is further argued that the loan transaction is not mentioned in the ITR returns of the complainant and even the complete detail of the financial capacity of complainant on the basis of which loan amount was given to accused is not mentioned by the complainant. It is further argued that alleged agreement Ex.CW1/E cannot be considered as it is not even notarized, nor does it contain the complete details of the cheque and transaction in question. It is further argued that complainant/respondent is not a money lender CA No. 24/2023 Bateshwar Jha vs. Shyam Nandan Jha Page 3 of 21 hence, he cannot charge interest. He has prayed that present appeal be allowed by setting aside the impugned judgment of conviction and order on sentence.
5. Ld. Counsel for appellant has relied upon following judgments :
(i) S.P. Chengalvaraya Naidu (dead) by L.Rs. vs. Jagannath (dead) by L.R. and Ors., reported as (1993) 10 SC CK 0035.
(ii) Damodar S Prabhu vs. Sayed Babalal H. reported as (2010) 05 SC CK 0007.
(iii) G Pankajakshi Amma vs. Mathai Mathew reported as V (2005) SLT 559 passed by Supreme Court of India.
(iv) Basalingappa vs. Modibasappa reported as 2019 Legal Eagle SC 428.
(v) Rajaram S/o Sriramulu Naidu (since deceased) through LR's vs. Maruthachalam (since deceased) Through LR's reported as 2023 Legal Eagle (SC) 46.
(vi) K. Sabramani vs. K Damodara Naidu reported as 2014 Legal Eagle (SC) 4802.
(vii) John K. John vs. Tom Vrghese & Anr, reported as IX (2007) SLT 81.
(viii) Vijay vs. Laxman & Ors. reported as (2013) 3 SCC 86.
(ix) Sanjay Verma vs. Gopal Halwai, reported as 2019 Legal Eagle (DEL) 251.
(x) Sudeep Paul vs. Sujata Saha & Ors. reported as 2022 Legal Eagle (TRI) 450.
(xi) H.P. Moodalappa vs. C.A. Chowrappa, reported as CA No. 24/2023 Bateshwar Jha vs. Shyam Nandan Jha Page 4 of 21 2011 Legal Eagle (KAR) 507.
6. On the other hand, Ld. Counsel for the complainant has filed reply/written arguments and also advanced arguments on the present appeal. It is argued that complainant has placed on record his bank statements to prove his financial capacity. Firstly, loan was given and then agreement was prepared on which, appellant/accused has admitted his signature. It is further argued that as per agreement 3% interest was to be given if cheque was dishonoured. Moreover, the complainant is not required to prove the source of fund, once, presumption under Section 139 N.I. Act is raised. Legal notice was served on the correct address, but despite receipt thereof, no payment was made by the appellant/accused. It is prayed that present appeal may be dismissed.
7. Ld. Counsel for the respondent/complainant has relied upon the judgments already discussed by him before the Ld. Trial Court.
8. I have considered the submissions made by Ld. Counsels for the parties. I have carefully perused the judgments relied upon by both the parties and the orders passed by the Ld. Trial Court. After considering the same, I am of the opinion that Ld. trial Court has in great details, discussed all the facts and legal prepositions relevant for the disposal of the complaint under Section 138 N.I. Act. In the present appeal, appellant has taken same grounds of appeal, which he has taken in his defence, before the Ld. Trial Court. Each and every ground has been discussed in detail by the Ld. Trial Court in the impugned CA No. 24/2023 Bateshwar Jha vs. Shyam Nandan Jha Page 5 of 21 judgment. Though the appellant has taken same ground in appeal for challenging the impugned judgment as were taken by him in his defence in complaint, but he has not given any reason for challenging the order passed by Ld. Trial Court i.e. appellant has not been able to show any infirmity in the order of the Ld. Trial Court nor he has been able to point out any reason because of which, the impugned order should be set aside. Appellant has also not been able to prove any inconsistency in appreciation of evidence by the Ld. Trial Court.
9. I will discuss all the grounds taken by the appellant individually.
10. Firstly, it has been challenged by the appellant that the complaint in which impugned order was passed by the Ld. Trial Court was the second complaint filed by the complainant after first complaint of the complainant was dismissed being 'pre- mature'. This fact has been especially dealt, by the Ld. Trial Court, in the impugned judgment dated 04.01.2023. While discussing this point, Ld. Trial Court has considered the judgment relied upon by the accused/appellant passed by the Hon'ble Supreme Court in Yogender Pratap Singh vs. Savitri Pandey & Anr., Criminal Appeal No. 605/2012 on 19.09.2014 and has relied upon following portion of the judgment :-
"Para 42. . . As we have already held that a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142 (b), his recourse is to seek CA No. 24/2023 Bateshwar Jha vs. Shyam Nandan Jha Page 6 of 21 the benefit of the proviso, satisfying the Court of sufficient cause."
11. After considering the same, Ld. Trial Court has rightly decided that complaint filed before the expiry of 15 days notice, is not maintainable as per law and therefore, earlier complaint of the complainant was dismissed as pre-mature, but in the same case, Hon'ble Supreme Court had specifically held that remedy for such complainant is only to file a fresh complaint. Therefore, in this case, after dismissal of first complaint, being pre-mature, the only option available to the complainant was to file the fresh complaint within the period of limitation and accordingly, just because first complaint was dismissed being 'premature', this cannot be the ground for restraining the complainant from filing any fresh complaint. Similarly, Ld. Trial Court has not accepted the defence taken by the appellant in this regard. In the appeal again, same ground for challenge has been raised by the appellant, but no specific allegation has been made by the appellant about the order passed by the Ld. Trial Court. Appellant has not been able to show in what manner, the order passed by the Ld. Trial Court is incorrect or suffering from any infirmity. Appellant has also not alleged in the present appeal that the second complaint, as filed by the complainant, was filed beyond the period of limitation, hence, I am of the opinion that this ground of challenging the impugned judgment is not available to the appellant.
12. The other grounds taken by the appellant in the appeal is that no specific date or amount of giving loan to CA No. 24/2023 Bateshwar Jha vs. Shyam Nandan Jha Page 7 of 21 accused/appellant is mentioned in the complaint. He has also challenged that complainant has not mentioned the word 'loan' in his evidence. After considering the submissions of appellant and the complainant on this point, I am of the opinion that these grounds are not the relevant grounds for challenging the order of conviction under Section 138 N.I. Act. As admittedly, the complaint has been filed after dishonour of cheque bearing no. 162627 dated 06.04.2017 in the sum of Rs.4,00,000/- drawn on ICICI Bank, Patparganj, Delhi given by appellant to the complainant. Even otherwise, perusal of the complaint as filed by the complainant against the accused/appellant clearly shows that he has mentioned in para no. 4 that he has advanced friendly loan of Rs.30 lakh to the accused between the period of October to November, 2014. The question of whether the loan was advanced by the complainant to the accused/appellant or not has also been discussed by the Ld. Trial Court. Ld. Trial Court has rightly observed that once, the cheque has been issued by the appellant in favour of the complainant, presumption under Section 139 N.I. Act is raised in favour of the complainant that the cheque has been issued by the appellant in order to discharge the whole or part of debt or any other liability.
13. The second ground of appeal taken by the appellant is that he has not issued the cheque for discharge of any liability and the cheque was given as security and the particulars were filled by the complainant. The appellant has also stated that he has given this cheque as a security to the complainant, who was running the business of Committee/chit fund but his cheques were not CA No. 24/2023 Bateshwar Jha vs. Shyam Nandan Jha Page 8 of 21 returned by the complainant despite assurances. Simultaneously, the appellant has also taken objection that Ld. Trial Court has not considered the fact that in complaint or in the legal notice, complainant has not mentioned the 'loan amount' and 'exact date' when it was given to the appellant nor any such proof has been attached by the complainant.
14. I will consider these grounds simultaneously, as these grounds are interconnected and can be decided together.
15. It is settled preposition of law, by virtue of Section 139 N.I. Act, that if a cheque has been issued by the drawer, it is presumed to have been issued in discharge of any debt or liability which the drawer has against the drawee, unless this presumption is rebutted by accused.
16. While considering this defence taken by the accused before the Ld. Trial Court, Ld. Trial Court has relied upon the judgment, P.Rasiya vs. Abdul Nazer in Crl.App. 1233-1235 of 2022 dated 12.08.2022, as relied upon by complainant, wherein Hon'ble Supreme Court has set aside the acquittal of the accused, which was passed by the Hon'ble Kerela High Court only on the ground that complainant had not specifically stated the nature of transaction and source of fund in his complaint. Thereby, by the order in case P.Rasiya vs. Abdul Nazer (Supra), Hon'ble Supreme Court has held that the accused cannot be acquitted on the ground if complainant has not been able to specifically state the nature of transaction because of the presumption raised in favour of complainant under Section 139 N.I. Act. Coupled with the fact that accused had not been able to rebut the presumption.
CA No. 24/2023 Bateshwar Jha vs. Shyam Nandan Jha Page 9 of 21Similarly, in the present case, the ground of appeal, taken by the appellant in respect to the date and amount of loan given by the complainant has to be read with the other grounds taken by the appellant.
17. It is settled law that the presumption raised under Section 139 N.I. Act is a rebuttable presumption. If the accused (appellant) is able to raise the suspicion that the cheque was not given for discharge of his complete or partial liability, then the presumption can be rebutted by the accused and it will be for the complainant to prove that the cheque in question had been issued by the accused for discharge of the liability. While considering the fact whether accused has been able to discharge the burden of proof for rebutting the presumption, Ld. Trial Court has in detail discussed various judgments and had relied upon the judgment of Hon'ble High Court of Delhi in Suresh Chandra Goyal v. Amit Singhal, Crl. Appeal Nos. 601/2015, wherein it was held that :
"There is no magic in the word "security cheque", such that, the moment the accused claims that the dishonoured cheque (in respect whereof a complaint under Section 138 of the Act is preferred) was given as a "security cheque", the Magistrate would acquit the accused. The expression "security cheque" is not a statutorily defined expression in the NI Act. The NI Act does not per se carve out an exception in respect of a 'security cheque' to say that a complaint in respect of such a cheque would not be maintainable. There can be mirade situations in which the cheque issued by the accused may be called as security cheque, or may have been issued by way of a security, i.e. to provide an assurance or comfort to the drawee, that in case of failure of the primary consideration on the due date, or on the happening (or not happening) of a contingency, the security may be enforced. While in some situations, the dishonor of such a cheque may attract the penal provisions contained in Section 138 of the Act, in others it may not."CA No. 24/2023 Bateshwar Jha vs. Shyam Nandan Jha Page 10 of 21
18. In the present case, both before the Ld. Trial Court as well as before this Court, appellant has challenged that the cheque was not given by him in discharge of his liability but no concrete evidence or argument has been advanced on this point. It is clear from the Trial Court record that accused/appellant has admitted his signature on the cheque. He has nowhere denied the amount being mentioned in the cheque. Also, during the cross- examination of complainant, complainant has admitted that he gave loan to the accused in the year 2014 and agreement Ex.CW1/E was prepared on 01.10.2016. He has further stated that accused gave cheque in question at the time of preparation of agreement Ex.CW1/E of loan in 2016. He has received the cheque in filled condition. No contrary suggestion was given to complainant by appellant/accused for challenging the statement of complainant that cheque in question was duly filled & signed when same was handed over to him by accused. This clearly shows that accused/appellant has admitted the factum of giving loan by complainant and has also admitted execution of agreement Ex.CW1/E. Also, the suggestion was given to the complainant in the same cross-examination dated 13.04.2020 that the details of cheque mentioned in para 1 of the agreement Ex. CW1/E were filled by complainant, which was denied by the complainant. Hence, it is clear that details of the cheque were clearly mentioned in the agreement Ex.CW1/E. This cross- examination shows that execution of agreement Ex.CW1/E has not been denied by the appellant, rather it was admitted and CA No. 24/2023 Bateshwar Jha vs. Shyam Nandan Jha Page 11 of 21 relied upon by the appellant during cross-examination of the complainant. Hence, the allegation of appellant, for challenging the impugned judgment, that, the dates and details of the cheque were not mentioned has no basis, as the details are mentioned in agreement Ex.CW1/E. So, these grounds of challenging the impugned judgment are clearly not available to the appellant.
19. Further, it also cannot be considered that the cheque was given by the appellant as a 'security' because appellant has failed to prove on record, when the cheque was given by him and why cheque had not been taken by him till the year 2016 when as alleged, he has closed the account in the year 2013. The appellant has also not been able to prove how many Committees/chit funds allegedly were being participated in, by him and how much amount has been paid by him to the complainant. Therefore, I am of the opinion that Ld. Trial Court has rightly not placed any credence to these allegations/defence of appellant.
20. The other ground of appeal taken by the appellant is that the complainant has failed to prove his financial capacity for giving such huge amount of loan to him, as he has not mentioned this fact of loan in his Income Tax Return (ITR) and Ld. Trial Court has failed to appreciate this fact. After considering the order passed by Ld. Trial Court, I am of the opinion that Ld. Trial Court has considered in detail, this defence taken by the accused. After considering the judgment of "Dilip Chawla vs. Ravinder Kumar & Anr." [Crl. Rev. P.607/2016 passed by Hon'ble Delhi High Court on 10.08.2017] and Lekh Raj Sharma vs. Yash Pal CA No. 24/2023 Bateshwar Jha vs. Shyam Nandan Jha Page 12 of 21 Gupta" [Crl. L.P. 567/2014 passed by Hon'ble High Court of Delhi on 30.06.2015]. Ld. Trial Court had held that as per above judgment, there is no requirement that non-disclosure of loan in ITR will make the transaction illegal or void. In other words, it is not necessary for the complainant to mention the factum of giving loan in his/her ITR and absence of any such fact being disclosed in ITR, the transaction between the parties, will not become void and liability under section 138 NI Act remains unaffected.
21. Further ground taken by the appellant is that no legal notice was served upon the appellant before filing of the complaint by the complainant. It is clear, from the Trial Court record, that service of the accused was effected on three addresses, as is mentioned by Ld. Trial Court in para 23 of impugned judgment :
"23. Accused has denied the receipt of legal notice. It is worth noting that during his cross examination accused stated that he purchased flat no. A-48 A, second floor, Chander Vihar in the name of his wife in 2012/13. This is one of the addresses on which legal notice was sent and the tracking report shows it being delivered to Bateshwar Jha on 30/06/2017. Further, accused in the cross examination admitted that on 28/29-03-2017, complainant dropped him near his house at flat no. A-48 A, second floor, Chander Vihar. This makes it clear that accused was living in Chander Vihar in 2017 and the notice was sent to this address."
22. It has clearly been observed by Ld. Trial Court that legal notice was served to Bateshwar Jha i.e. appellant/accused herein on 30.06.2017, as per the tracking report at the address A-48A, II Floor, Chander Vihar, which was purchased by him in the name CA No. 24/2023 Bateshwar Jha vs. Shyam Nandan Jha Page 13 of 21 of his wife in 2012-13. The appellant has admitted in his cross- examination that this flat was purchased by him in 2012-13 in the name of his wife and clearly the service was effected on Bateshwar Jha i.e. on the accused/appellant on 30.06.2017, which shows that the service has been properly effected on the appellant. Further, it is also admitted by appellant in cross- examination before Ld. Trial Court that he was dropped by the complainant at his flat i.e. A-48A i.e. address mentioned above in 2017, which again proves that in 2017, he was residing at this address and he was admittedly dropped by the complainant at this address of Chander Vihar. Therefore, I am of the opinion that legal notice has been duly served upon the accused/appellant. Ld. Trial Court has rightly opined that since accused has not placed on record any proof/document, which could prove that on these addresses, accused was not residing at the relevant time or that notice was not sent at that address, therefore, Ld. Trial Court has believed the service of legal notice on the accused to be the valid service. Even in present appeal, appellant/accused has not placed any document/evidence to prove that legal notice was not served on him. He has merely reiterated the same grounds of defence taken before Ld. Trial Court, without pointing out any flaw or error of Ld. Trial Court in considering the same or disposing the case.
23. These are the important grounds, which have been taken by the appellant for challenging the order of Ld. Trial Court. Apart from these, some other grounds have been taken, which have already been dealt, in detail, by Ld. Trial Court. The CA No. 24/2023 Bateshwar Jha vs. Shyam Nandan Jha Page 14 of 21 appellant has only taken these grounds for challenging the impugned judgment, but as is stated above, he has not mentioned how the Ld. Trial Court has not been able to appreciate the evidence in respect to these allegations. In the absence of there being any specific allegations/grounds of appeal taken by appellant to show any infirmity or irregularity in the order of Ld. Trial Court, I am of the opinion that the grounds of appeal, as taken by appellant, are not favouring the accused/appellant and he has not been able to point out any infirmity in the judgment of Ld. Trial Court.
24. Coming to the judgments relied upon by the appellant, the appellant has relied upon 11 judgments. I have considered all these judgments and after considering the same, I am of the opinion that these judgments do not help or support the case of appellant. I will discuss each case separately.
(i) S.P. Chengalvaraya Naidu (dead) by L.Rs. vs. Jagannath(dead) by L.R. and Ors. (supra), this judgment is passed by Hon'ble Supreme Court on the point of fraud. It is held in this case that decree obtained by playing fraud on the Court is a nullity. This is settled preposition of law but the same is not applicable to the facts in hand, as the appellant has failed to prove, what was the fraud committed by the complainant on court or how the complainant has obtained decree by playing fraud on the Court. Therefore, this judgment is not relevant for present purposes.
(ii) In judgment of Damodar S Prabhu vs. Sayed Babalal H. (Supra), only directions have been given by the Court. In CA No. 24/2023 Bateshwar Jha vs. Shyam Nandan Jha Page 15 of 21 this case, it is directed by Hon'ble Supreme Court that multiple complaints and multiple litigations should be avoided and parties should disclose about other complaints being filed by them in any other Court in respect to the same transaction. These are the directions to be followed in cases under Section 138 N.I. Act and there is no allegation of appellant that any of these guidelines/ directions have been disobeyed by complainant/respondent which could render the complaint illegal. Hence, this case also does not provide any help to the appellant in challenging the impugned order.
(iii) The appellant has relied upon "G Pankajakshi Amma vs. Mathai Mathew" (Supra). In this case, Hon'ble Supreme Court has held that the respondent was a money lender and hence, he was under a duty to produce the books of accounts and therefore it was considered to be unaccounted transaction by Hon'ble Supreme Court. This judgment is of the year 1998, however, various judgments have been passed by Hon'ble Supreme Court after 1998 in which it has been held that it is not necessary that a cash transaction will always be considered as an illegal transaction. It is to be considered in the present case that complainant is not a money lender, but had advanced a friendly loan to the accused, as per the case of complainant. Therefore, she was not required or expected to maintain books of accounts.
Further, as discussed above, non-mentioning of grant of loan in Income Tax Returns of the complainant does not make the transaction illegal. This was held by Hon'ble High Court of Delhi in case of "Lekh Raj Sharma vs. Yash Pal Gupta" [Crl.
CA No. 24/2023 Bateshwar Jha vs. Shyam Nandan Jha Page 16 of 21L.P. 567/2014 dated 30.06.2015]. Therefore, this case also can be differentiated from the facts in hand.
(iv) Basalingappa vs. Modibasappa (supra),
(v) Rajaram S/o Sriramulu Naidu (since deceased) through LR's vs. Maruthachalam (since deceased) Through LR's (supra) &
(vi) K. Sabramani vs. K Damodara Naidu (surpa) These three matters will be discussed together as in all these 3 cases, Hon'ble Supreme Court had considered the provisions of Section 118A and 139 NI Act, and after considering the same, it was held :
"23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:-
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.CA No. 24/2023 Bateshwar Jha vs. Shyam Nandan Jha Page 17 of 21
(v) It is not necessary for the accused to come in the witness box to support his defence."
Relying upon this, it was held that if accused is able to raise probable defence in his favour, then the presumption in favour of cheque having been issued for consideration can be rebutted. Applying these principles to the facts in hand, it is clear that in the present case, accused has not been able to raise probable defence in his favour as admittedly accused has admitted his signatures on the cheque. He has admitted agreement Ex. CW1/E to have been executed between the parties in the year 2016. Accused/appellant has not been able to prove in which Committees, as alleged by him, he has participated when the cheque in question was given as security to the complainant, as alleged by him and for how much amount the Committee was taken by him. None of these questions have been answered or proved by the accused/appellant either before Ld. Trial Court or before this Court. I am of the opinion that once accused has admitted that the cheque was given by him to the complainant, he has admitted his signatures on the cheque, he has admitted the agreement Ex CW1/E executed between the parties, the cheque is considered to have been issued by the accused in favour of the complainant against the consideration received, therefore, these judgments do not provide any support to the accused/appellant, but supports the case of complainant/ respondent.
(vii) Judgment of John K. John vs. Tom Varghese & Anr (supra) is not relevant for the present dispute, as it is a judgment on Article 136 of the Constitution.
CA No. 24/2023 Bateshwar Jha vs. Shyam Nandan Jha Page 18 of 21(viii) Similarly judgment in Vijay vs. Laxman & Ors. (supra) is not relevant for the present case, as this judgment deals with the holder in due course, which is not the case in the present appeal.
(ix) Sanjay Verma vs. Gopal Halwai (supra) is also a case on the point of raising probable defence and rebutting the presumption raised under Section 139 NI Act. In this case, before Hon'ble High Court of Delhi, order of Ld. Trial Court was set aside by the Appellant Court on the ground that the petitioner/complainant has not been able to establish that he had the capacity to extend the friendly loan. In this judgment, it is held by the Hon'ble High Court of Delhi that :
"The Appellant Court has rightly returned the finding that the respondent has been able to rebut the presumption and accordingly, the onus shifted on the petitioner to prove beyond reasonable doubt that the loan was extended to the respondent and the subject cheque was issued for repayment of the loan. As rightly held by the appellant Court, the petitioner has failed to show the same."
Applying these principles to the case in hand, I am of the opinion that this judgment will not give any aid to the appellant as in the present case, the complainant has specifically proved on record his bank statement Ex.CW1/F. In which specific amount of Rs.4 lakh paid to accused/appellant is being reflected. Complainant has alleged that out of Rs.30 lakh, Rs.4 lakh was paid in cheque & rest was paid in cash. Appellant has not put any suggestion to complainant in evidence to prove that case of complainant is incorrect. He has also stated that he is a practicing Advocate and is earning. Therefore, it cannot be considered that CA No. 24/2023 Bateshwar Jha vs. Shyam Nandan Jha Page 19 of 21 complainant has no capacity to make friendly loan to the appellant. Even otherwise, appellant has not placed on record any document or any such evidence to prove that complainant was not in the capacity to advance such friendly loan to the accused/appellant.
(x) Similar view was taken by Hon'ble Tripura High Court in "Sudip Paul vs. Sujata Saha & Ors" (supra).
(xi) Judgment in case of "H.P. Moodalappa vs. C.A. Chowrappa" (supra) is also on the same lines of raising probable defence. In this case, Hon'ble Karnataka High Court, has observed that if Court of Ld. Magistrate has entertained a serious doubt about the very transaction and has come to the conclusion that complainant has not proved the case beyond reasonable doubt, then it would give benefit of doubt to the accused. Considering the facts of the present appeal and order of Ld. Trial Court, I am of the opinion that Ld. Trial Court has nowhere expressed any doubt about the case of the complainant and was satisfied with case proved by the complainant and therefore, the facts of this case can be differentiated from the facts of the present appeal.
25. In view of my above discussion, I am of the opinion that appellant has not been able to raise any ground or allegation in the present appeal, which could create any dent in the judgment passed by Ld. Trial Court or bring on record any infirmity, which order of Ld. Trial Court is suffering from. In the absence of the same, the appeal has no merits. Same is hereby dismissed.
File be consigned to record room.
CA No. 24/2023 Bateshwar Jha vs. Shyam Nandan Jha Page 20 of 21A copy of this judgment along with Trial Court Record be sent back to the learned Trial Court.
Appeal file be consigned to Record Room.
Digitally signedSHAIL by SHAIL JAIN Date: Announced in the open court today on 18 th November, 2023 JAIN 2023.11.18 17:00:17 +0530 (SHAIL JAIN) Principal District & Sessions Judge, East, Karkardooma Courts, Delhi CA No. 24/2023 Bateshwar Jha vs. Shyam Nandan Jha Page 21 of 21