Delhi District Court
Dara Singh vs Smt. Deepa on 10 February, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Appeal No. 44/2021
CNR No.: DLCT01-004723-2021
Dara Singh
S/o Sh. Rajender Singh
R/o. Qtr. No. 72, DDA Flats, Block-A,
New Seemapuri, Delhi
..... Appellant
VERSUS
Smt. Deepa
W/o Sh. Shyam
R/o H. No. 65, DDA Flats,
New Seemapuri, Delhi
..... Respondent
Date of Institution : 24.03.2021
Date of Arguments : 27.11.2021
Date of Judgment : 10.02.2022
JUDGMENT
1. The criminal appeal under Section 374 of 'The Code of Criminal Procedure, 1973' (In short 'Cr.P.C.') is directed against judgment dated 09.12.2020 and order on sentence dated 18.02.2021 in CC No. 541678/2016 titled as 'Deepa vs. Dara Singh' under Section 138 of 'The Negotiable Instruments Act, 1881' (In short 'NI Act') whereby Ld. MM (NI Act)-06, 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 a period of 6 months and fine in the sum of Rs. 2,25,000/-, which is payable to the respondent as 'compensation', within one month and in case of default, he is further sentenced to simple imprisonment for a period of one month.
Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 1/25BRIEF FACTS:
2. The respondent (Hereinafter referred to as 'the complainant') instituted a complaint case under Section 138 NI Act on the averments that the complainant and the appellant are neighbours and they had friendly relation. In the month of May, 2016; the appellant approached the complainant and requested for financial assistance in the sum of Rs. 1,50,000/- for a period of 4 months. On 12.05.2016, the complainant advanced a cash loan of Rs. 1,50,000/- to the appellant. The appellant issued cheque No. 000010 dated 15.09.2016 in the sum of Rs. 1,50,000/- drawn on 'Bank of India, Dilshad Garden Branch, F-9 Dilshad Colony, Delhi-110095' in favour of the complainant towards repayment of loan amount. On presentation, the banker of the appellant returned the said cheque unpaid with the endorsement 'Funds Insufficient' vide bank memo dated 21.09.2016. The complainant sent demand notice to the appellant, through speed post, on 26.09.2016. Despite receipt of demand notice, the appellant failed to make payment of the cheque amount. Hence, the complainant filed the complaint case under Section 138 NI Act. SUMMONING ORDER:
3. The trial Court, vide order dated 16.11.2016, taken cognizance of offence and on examination of the complaint, the documents and affidavit filed by the complainant in pre-summoning evidence, summoned the appellant for offence under Section 138 NI Act.
Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 2/25NOTICE OF ACCUSATIONS UNDER SECTION 251 CR.P.C.:
4. On 12.09.2017, the trial Court explained substance of accusations to the appellant, as required under Section 251 Cr.P.C., to which he responded as under:
"Q. Did you issue the cheque in question? A. The cheque in question was issued by me. It bears my signature. No other particulars have been filled by me. (Answer has been given after perusal of cheque).
Q. Did you receive the legal demand notice? A. I did not receive the legal demand notice.
Q. What is your plea of defence?
A. My mother had taken a sum of around Rs. 1,00,000/- from the complainant. I had handed over the cheque in question as blank signed cheque to my mother. My mother handed over the same to the complainant as security cheque. My mother has repaid an amount of Rs. 50,000/- (approx.) to the complainant. The complainant has filled excessive amount in the cheque and misused the same. My mother has also paid interest @ 10% per annum to the complainant."
APPLICATION UNDER SECTION 145 (2) NI ACT:
5. The appellant filed an application under Section 145 (2) NI Act seeking permission to cross-examine the complainant on the following grounds:
(a) The complainant never advanced any loan or any amount of money, as alleged by him;
(b) The complainant forged the said cheque;
(c) The complainant has filed several complaints against several innocent persons, which are pending before different Courts, to extort money from them;
and
(d) The appellant has no legal liability to pay the cheque amount, as alleged by the complainant.
Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 3/25THE COMPLAINANT'S EVIDENCE:
6. The complainant examined herself as CW-1. She filed her examination-in-chief by way of affidavit Ex.CW1/1. She relied on the said cheque Ex.CW1/A, bank memo dated 21.09.2016 Ex.CW1/B, demand notice dated 26.09.2016 Ex.CW1/C and postal receipt Ex.CW1/D. EXAMINATION UNDER SECTION 313 CR.P.C.:
7. Incriminating circumstances appearing in evidence were explained to the appellant as required under Section 313 Cr.P.C. to which he replied, as under:
"Question No. 1: It is an evidence against you that you had issued one cheque Ex.CW1/A bearing No. 000010 dated 15.09.2016 for a sum of Rs. 1,50,000/- drawn on Bank of India, Dilshad Garden Branch, Delhi in favour of the complainant in discharge of the legally enforceable liability against you. What do you have to say?
Ans. I had issued the cheque in question as blank signed cheque to the complainant.
Question No. 2: It is also in evidence against you that cheque Ex.CW1/A was returned dishonour on 21.09.2016 due to the reasons "Funds Insufficient"
vide cheque return memo Ex.CW1/B. What do you have to say?
Ans. I did not know about the dishonour of the cheque.
Question No. 3: It is also in evidence against you that the complainant had sent a legal demand notice dated 26.09.2016 Ex.CW1/C and despite due service vide speed post receipt Ex.CW1/D, you have failed to make the payment of the amount within the statutory period. What do you want to say?
Ans. I did not receive any legal demand notice. However, the address appearing on the same is mine.
Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 4/25Question No. 4: Do you want to say anything else? Ans. My mother had taken loan of Rs. 50,000/- on interest @ 10% per month from the complainant. I gave blank cheque to my mother bearing only my signatures and my mother gave the said cheque to the complainant. The cheque in question was given to the complainant for security purpose. I have returned the entire amount i.e. Rs. 50,000/- alongwith interest of around Rs. 1,00,000/- or Rs. 1,50,000/- to the complainant. Subsequently, I asked the complainant to return my cheque but she kept on lingering on and she never returned the cheque in question. I have been falsely implicated in the case. I do not owe any money to the complainant.
APPELLANT'S EVIDENCE:
8. The appellant did not lead defence evidence. IMPUNGED JUDGMENT:
9. The trial Court, vide judgment dated 09.12.2020, convicted the appellant for committing offence under Section 138 NI Act on the following grounds:
(a) The appellant admitted that the said cheque bears his signature and it was drawn on his bank account and therefore, statutory presumption under Section 118 and 139 NI Act that the said cheque was issued in discharge of a legally recoverable debt or other liability is drawn;
(b) The defence that a blank signed cheque was given will not absolve the appellant unless it is shown by him that it was not issued in discharge of a debt or other liability;
(c) Bare denial of passing of consideration or pleading that the cheque was issued as a security will not rebut presumption under Section 118 and 139 NI Act;
(d) The defence of the appellant is inconsistent;
(e) The appellant has not examined his mother; and
(f) The appellant failed to rebut presumption under Section 118 and 139 NI Act.
Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 5/25GROUNDS OF APPEAL:
10. Feeling aggrieved and dissatisfied with the impugned judgment, the appellant challenged it, as under:
(a) Ld. Counsel for the appellant neither cross-
examined the complainant properly nor asked material questions or led defence evidence and therefore, the case be remanded and the appellant be given proper opportunity to cross-examine the complainant and lead defence evidence;
(b) The trial Court did not consider that the appellant had issued a blank signed cheque in which the amount and other particulars were filled by the complainant;
(c) The appellant does not know English and he signs in Hindi and amount of Rs. 2,25,000/- was filled in the said cheque by the complainant;
(d) The trial Court did not consider financial status of the appellant and the complainant that they were not in a position that loan transaction of Rs. 2,25,000/- can take place between them;
(e) The appellant has filed copy of several criminal complaints filed by the complainant alongwith cheques signed by several persons for taking loan which are pending in other courts and it shows that the complainant obtains blank signed cheques from persons who avail loan from her and thereafter, she fills the said cheques to extort money from poor and illiterate persons;
(f) The complainant is doing business of money lending in her locality since many years without any money lending license;
(g) The complainant is making use of blank signed cheques and blank signed papers for filing cheque dishonour cases or suit for possession. The appellant mentioned particulars of three such cases;
Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 6/25(h) The appellant never taken loan of Rs. 2,25,000/- from the complainant. The complainant has not filed any receipt or loan agreement in this regard;
(i) In view of financial status of the appellant and the complainant, it is highly improbable that she will advance such high amount as a loan only on a cheque;
(j) The complainant has not proved her source of income and financial status to lend such amount;
(k) The appellant was not aware of dishonour of the said cheque as he rarely visited his banker;
(l) Any cash transaction for the amount involved in this case is barred under Income Tax Laws; and
(m) The complainant is charging exorbitant interest @ 10 - 20% per month from illiterate and poor person.
APPEARANCE:
11. I have heard arguments of Mr. Rajbir Bansal, Advocate for the appellant and Ms. Khairun Nisa, Advocate for the complainant and perused written arguments filed by the parties alongwith case law.
CONTENTIONS OF THE APPELLANT:
12. Ld. Counsel for the appellant contended that trial advocate of the appellant did not cross-examine the complainant properly. He contended that trial advocate of the appellant did not ask material questions during cross- examination of the complainant. He contended that trial advocate of the appellant did not lead any defence evidence to establish the defence of the appellant. He contended that the appellant was denied a fair, just and reasonable trial.
Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 7/2513. Ld. Counsel for the appellant contended that the appellant is an illiterate and poor person. He contended that the appellant should not be made to suffer gross negligence of his counsel in defending him before the trial Court. He contended that entire cross-examination of the complainant was concluded in 'one page'. He contended that the appellant is entitled to a fair and reasonable opportunity to defend himself. He contended that the appellant be given an opportunity to cross- examine the complainant and lead defence evidence and for that purpose, the case must be remanded back to the trial Court. He contended that there shall be miscarriage of justice, if such an opportunity is not provided to the appellant.
14. Ld. Counsel for the appellant contended that the appellant had issued a blank signed cheque wherein amount and other details were filled by the complainant. He contended that financial status of the appellant and the complainant is not such that any loan transaction of Rs. 2,25,000/- can ever take place between them. He contended that the complainant is exploiting poor, illiterate and innocent people of her locality. He contended that the complainant obtains blank signed cheques and blank signed documents from persons who approaches her for loan and thereafter, she fills the amount in the said cheques and file cheque bounce cases against such persons. He referred 3 such cases filed by the complainant. He contended that the complainant is doing business of money lending in her locality since many years without any money lending license.
Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 8/2515. Ld. Counsel for the appellant contended that the complainant received the said cheque as a security. He contended that it is unbelievable that the complainant would advance a loan of Rs. 2,25,000/- to the appellant on the basis of a security cheque. He contended that there is no loan agreement or receipt regarding the loan transaction. He contended that the complainant has not proved her source of income or financial status. He contended that any cash transaction above Rs. 20,000/- is barred by the provisions of Income Tax Act. He contended that the complainant is charging usurious interest @ 10 - 20% per annum from poor person of her locality. He contended that the case of the complainant that she had advanced an amount of Rs. 1,50,000/- to the appellant is false. He contended that the impugned judgment and sentence deserve to be set-aside.
CONTENTIONS OF THE COMPLAINANT:
16. Ld. Counsel for the complainant contended that the trial Court passed a reasoned judgment on the basis of the evidence on record. She contended that the appellant had admitted in reply to notice of accusations under Section 251 Cr.P.C. that his mother had taken an amount of Rs. 1,00,000/- from the complainant and he had issued the said cheque bearing his signature. She contended that the appellant, in his examination under Section 313 Cr.P.C., changed his defence and stated that his mother had taken loan of Rs. 50,000/- on interest @ 10% per month from the complainant.
Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 9/2517. Ld. Counsel for the complainant contended that the appellant stated that he had returned Rs. 50,000/- alongwith interest of Rs. 1,00,000/- or Rs. 1,50,000/-. She contended that the appellant has not filed any evidence that he paid aforesaid amount to the complainant. She contended that the appellant failed to rebut presumption under Section 139 NI Act. She contended that the appellant has not examined any defence witness. She contended that grounds of appeal are totally irrelevant to issues involved in this case. She contended that the complainant established all ingredients required under Section 138 NI Act and the trial Court rightly convicted the appellant.
SCOPE OF JURISDICTION OF FIRST APPELLATE COURT:
18. The jurisdiction of the appellate court is co- extensive with that of the trial court. The powers of the appellate court under Section 386 CrPC 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.
19. In Narender Bhat & Anr. vs. State of Karnataka, (2009) 17 SCC 785, Hon'ble Supreme Court of India enumerated powers of the appellate Court 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....."Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 10/25
POINTS FOR CONSIDERATION :
A. Whether the appellant did not get a fair trial or opportunity to defend himself?
20. The trial Court explained substance of accusations to the appellant, as required under Section 251 Cr.P.C. on 12.09.2017. Thereafter, he filed an application under Section 145 (2) Cr.P.C. seeking an opportunity to cross-examine the complainant on three grounds that he had not taken any loan, as alleged by the complainant, the complainant forged the said cheque and the complainant filed false complaints against several innocent persons to extort money. The trial Court allowed the said application under Section 145 (2) NI Act and provided two opportunities to the appellant to cross-examine the complainant. The appellant had engaged a lawyer of his choice. The trial advocate cross-examined the complainant on 06.08.2019. Though cross-examination is running into 'one page', however, length of cross-examination is not a determinative factor to ascertain quality of cross-examination. In cross-examination, the appellant questioned the complainant on the aspects that she filed cheque dishonour cases against other persons, the appellant handed over a blank signed cheque to her and she filled particulars in the said cheque. Ld. Counsel for the appellant contended that the trial advocate did not cross- examine the complainant properly and he did not ask material questions. However, he has neither mentioned nor stated material questions which were supposed to be asked.
Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 11/2521. It may be relevant to note that the complainant's evidence was closed on 06.08.2019 and thereafter, the appellant was examined under Section 313 Cr.P.C. on 20.12.2019. Final arguments were heard on 25.02.2020. In the intervening period from 06.08.2019 to 25.02.2020, the appellant did not move any application containing material questions which were required to be put to the complainant in the cross- examination. As regards the contention that the trial advocate did not lead defence evidence, it can be stated that the appellant, in his examination under Section 313 Cr. P.C., stated that he did not want to lead defence evidence. He did not file any application alongwith list of witnesses seeking opportunity to lead defence evidence since 20.12.2019 to 25.02.2020. Therefore, this Court does not find any ground to hold that the appellant did not get proper opportunity to defend himself. Mere fact that new counsel engaged by the appellant is of the opinion that certain questions were not put to the complainant during her cross-examination cannot be a ground to remand the case. Offence under Section 138 NI Act is summarily triable, as provided under Section 143 NI Act. The appellant was given opportunity to cross-examine the complainant. The trial advocate cross-examined the complainant. The appellant did not want to lead DE. The appeal cannot be remanded for further cross-examination of the complainant and the appellant's evidence. The appellant was provided proper opportunity to defend himself and he received a fair trial.
Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 12/25B. Whether the appellant had drawn a cheque on an account maintained by him with a banker in favour of the complainant?
22. The appellant, in reply to notice of accusations under Section 251 Cr.P.C., admitted that he had issued the said cheque and it bears his signature. The appellant, in his examination under Section 313 Cr.P.C., admitted that he had issued the said cheque. It is proved that the appellant had drawn the said cheque on an account maintained by him with a bank in favour of the complainant.
C. Whether statutory presumption under Section 118 (a) and Section 139 NI Act can be drawn?
23. As noted above, the appellant admitted that he had issued the said cheque in favour of the complainant. He has admitted his signature on the said cheque Ex.CW1/A. The complainant presented the said cheque for encashment within its validity period. The banker of the appellant returned the said cheque unpaid with the endorsement 'Funds Insufficient' vide bank memo dated 21.09.2016 Ex.CW1/B. The complainant sent demand notice Ex.CW1/C to the appellant, within stipulated period on 26.09.2016, through Regd. post vide postal receipt Ex.CW1/D. The appellant, in examination under Section 313 Cr. P.C., admitted that his address on demand notice is correct. The appellant failed to make payment of cheque amount within prescribed period. All pre-conditions for drawing statutory presumptions under Section 118 (a) and 139 NI Act are present.
Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 13/2524. Section 138 and 139 require that the court "shall presume" liability of the drawer of the cheques for the amounts for which the cheques are drawn. It is obligatory on the Court to raise this presumption in every case where the factual basis for raising of presumption is established. Such a presumption is a presumption of law, as distinguished from a presumption of fact. The Court has no discretion but to draw the statutory presumption.
25. 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....."
26. Therefore, statutory presumption under Section 118 (a) NI Act that the said cheque was drawn for consideration and Section 139 NI Act that the complainant received the said cheque for the discharge of debt or other liability are raised. D. What is the effect of statutory presumption and manner of rebuttal of statutory presumption?
27. The statutory presumption under Section 118 (a) and 139 NI Act introduces an exception to the general rule as to the burden of proof in criminal cases and shifts onus on to the accused. Presumptions are devices by use of which the courts are enabled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence.
Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 14/2528. In Rangappa vs. Sri Mohan, (2010) 11 SCC 441, Hon'ble Supreme Court of India held that presumption mandated by Section 139 NI Act does include existence of a legally enforceable debt or liability, 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....."
29. In Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513, Hon'ble Supreme Court of India held as under:
"18.....As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists.
19. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over.Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 15/25
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....."
30. Once "reverse onus" clauses become operative, the obligation to discharge presumption is shifted upon the appellant. The presumptions are rebuttable in nature. The appellant is required to raise a probable defence and the standard of proof is preponderance of probability and not mere possibility. 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.
Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 16/25E. Whether the appellant raised a probable defence?
31. Ld. Counsel for the appellant contended that the appellant had issued a blank signed cheque and the complainant filled amount and other particulars in the said cheque. It is well settled that plea of issuance of a blank signed cheque would not obliterate statutory presumption.
32. In Bir Singh vs. Mukesh Kumar, (2019) 4 SCC 197, Hon'ble Supreme Court of India held as under:
"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."
33. As regards contention that the complainant is carrying on business of money lending without any license and she obtains blank signed cheques and blank signed documents from innocent persons and misuse them for filing cheque dishonour cases and recovery suits to extort money from them, it can be stated that there is no such evidence that the complainant is indulging into such practice. Mere admission of the complainant, in her cross-examination, that she has filed cheque dishonour cases against other persons is not sufficient for raising such inference. The appellant has mentioned three cheque dishonour cases, in para No. E of the grounds of appeal. Even if the said fact is taken on its face value, mere filing of some cases of cheque dishonour would not sufficient to infer that the complainant is a money lender.
Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 17/2534. As regards contention that the said cheque was a security cheque, it can be stated that it is well settled that a cheque issued for discharge of existing liability as security would not absolve the accused from penal consequences under Section 138 NI Act.
35. In Sripati Singh vs. The State of Jharkhand & Anr., Crl. Appeal Nos. 1269-1270 of 2021 decided on 28.10.2021, Hon'ble Supreme Court of India held as under:
"16. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. 'Security' in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow."
36. A post-dated cheque issued to secure repayment of a debt would mature for presentation, if debt is not paid or its payment is not deferred. Such a cheque is towards a legally enforceable debt or liability. In case of dishonour of such cheque, the complainant is entitled to prosecute the appellant for offence under Section 138 NI Act.
Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 18/2537. As regards contention that the appellant had not taken any loan from the complainant, there is no loan agreement and the complainant has not established her source of funds is concerned, it can be stated that presumption under Section 139 NI Act presume existence of a legally enforceable debt or a liability. In a suit for recovery, the plaintiff must aver and prove that he had advanced loan to the defendant. However, the negotiable instruments are an exception. The appellant must show that debt or consideration did not exist or their non-existence probable. Moreover, the appellant never questioned financial capacity or source of funds of the complainant. It is the precise case of the appellant that the complainant advanced loan to several persons of locality. In the application under Section 145 (2) Cr.P.C. or in cross- examination of the complainant, the appellant did not question financial capacity or source of funds of the complainant.
38. Besides a denial that the appellant had not taken loan, as stated by the complainant, the appellant has not stated or shown anything to dislodge statutory presumption.
39. This was precise case of the appellant, in reply to of accusations under Section 251 Cr.P.C., that his mother had taken a sum of Rs. 1,00,000/- from the complainant and he had handed over the said cheque to his mother who handed over the said cheque to the complainant as 'security cheque'. His plea was that his mother repaid an amount of Rs. 50,000/- (approx.) to the complainant who misused the said cheque.
Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 19/2540. However, the appellant, in cross-examination of the complainant, changed his defence. He made suggestion to the complainant that he had taken an amount of Rs. 50,000/- only and he returned the said amount to the complainant. He did not suggest his case to the complainant that he had given the said cheque as 'security'. The appellant introduced a new defence during cross-examination of the complainant. The appellant further introduced a new defence, in his examination under Section 313 Cr.P.C., that his mother had taken loan of Rs. 50,000/- on interest @ 10% per month from the complainant and he has returned the entire amount i.e. Rs. 50,000/- alongwith amount of Rs. 1,00,000 or Rs. 1,50,000/- as 'interest' to the complainant. He stated that he had asked the complainant to return the cheque but she never returned it.
41. It is, therefore, evident that the defence of the appellant is neither consistent nor inspiring. He could not elicit anything from cross-examination of the complainant. The said cheque was returned unpaid with endorsement 'Insufficient Funds'. If the appellant had returned the amount, there is no explanation why he had not issued instruction to his banker to stop payment of the said cheque. There is no explanation as to why he had not sent any demand notice to the complainant to return the said cheque. The defence raised by the appellant does not inspire confidence or meet standard of 'preponderance of probability'. Consequently, existence of legally enforceable liability of the appellant is presumed.
Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 20/2542. As regards contention that the appellant did not receive demand notice Ex.CW1/C, it is seen that the complainant sent demand notice to the appellant on 26.09.2016 through Regd. post vide postal receipt Ex.CW1/D. The appellant, in examination under Section 313 Cr.P.C., admitted that demand notice was sent at 'correct address'. Therefore, receipt of demand notice by the appellant is presumed.
43. Moreover, in C.C. Alavi Haji vs. Palapetty Muhammad, (2007) 6 SCC 555, it was held by Hon'ble Supreme Court of India:
"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 alongwith the copy of the 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 G.C. 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."
(emphasis supplied)
44. Irrespective of defence of non-receipt of demand notice, the appellant failed to make payment of cheque amount within 15 days of service of summons of the complaint.
Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 21/25CONCLUSION:
45. The appellant had drawn the said cheque on his banker towards discharge of a legally enforceable debt. The said cheque was presented for encashment within its validity period. The said cheque was returned unpaid by the banker of the appellant with endorsement 'Funds Insufficient' vide bank memo. The complainant sent demand notice within prescribed period. The appellant failed to make payment of the cheque amount within prescribed period and in any case, within 15 days from the date of service of summons of the complaint. The complaint was within limitation. The complaint established all pre-requisites as required under Section 138 NI Act.
46. This Court does not find any manifest error of law or procedure or perversity in the impugned judgment.
47. Accordingly, the appeal filed by the appellant challenging conviction for commission of offence under Section 138 NI Act is dismissed.
48. On the aspect of sentence, it will be relevant to take note of judgment in Bhupesh Rathod vs. Dayashankar Prasad Chaurasia & Anr., (2021) SCC OnLine SC 1031, Hon'ble Supreme Court of India held as under:
"29.....The punishment prescribed for such an offence under Section 138 of the NI Act is imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both. We are of the view that in the given scenario the respondent should be sentenced with imprisonment for a term of one year and with fine twice the amount of the cheque, i.e. Rs. 3,20,000/-."Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 22/25
49. In Kalamani Tex & Anr. vs. P. Balasubramanian (supra), Hon'ble Supreme Court of India held as under:
"19. As regards the claim of compensation raised on behalf of the respondent, we are conscious of the settled principles that the object of Chapter XVII of NIA is not only punitive but also compensatory and restitutive. The provisions of NIA envision a single window for criminal liability for dishonour of cheque as well as civil liability for realization of the cheque amount. 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."
50. In the present case, the complaint case was instituted on 02.11.2016. The cheque amount is Rs. 1,50,000/-. The trial Court directed the appellant to pay compensation in the sum of Rs. 2,25,000/- which is lower than twice amount of the cheque i.e. 1,50,000/-. The trial Court has already taken lenient view in imposition of compensation.
51. The trial Court sentenced the appellant to simple imprisonment for six months. In case the appellant makes payment of Rs. 3,00,000/- i.e. twice of cheque amount in place of Rs. 2,25,000/- to the complainant within one month, sentence of simple imprisonment for six months shall stand set-aside.
52. The appellant is directed to pay compensation in the sum of Rs. 3,00,000/- in place of Rs. 2,25,000/- to the complainant within 30 days from today. Otherwise, sentence of simple imprisonment for six months and fine of Rs. 2,25,000/-, as imposed by the trial Court, shall remain in force.
Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 23/2553. A copy of the judgment alongwith trial Court record be sent to the trial Court.
54. Appeal file be consigned to record room.
Digitally signed SANJAY by SANJAY
SHARMA
SHARMA Date: 2022.02.10
12:31:05 +0530
Announced in the open Court SANJAY SHARMA-II
on this 10th February, 2022 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 24/25 Dara Singh vs. Deepa CNR No.: DLCT010047232021 Crl. Appeal No. 44/2021 10.02.2022 Present : Mr. Rajbir Bansal, Advocate for the appellant.
Ms. Khairun Nisa, Advocate for the respondent.
Vide separate judgment, the appeal filed by the appellant is dismissed. Appeal file be consigned to record room.
Digitally signed by SANJAY SANJAY SHARMA
SHARMA Date: 2022.02.10
12:31:23 +0530
Sanjay SharmaII
ASJ03, Central District,
Tis Hazari Courts, Delhi
10.02.2022
Crl. Appeal No. 44/2021 Dara Singh vs. Deepa Page No. 25/25