Delhi District Court
Vinod Kumar vs Deepak Sachdeva on 26 November, 2024
DLSE010006732020
IN THE COURT OF SH. LOVLEEN, ADDITIONAL SESSIONS
JUDGE-03, SAKET COURTS, NEW DELHI
CRL. APPEAL No. 37/2020
VINOD KUMAR
S/O LATE MAHAVIR PRASAD
R/O BB-65, MAIN MARKET,
AMARPURI, NABI KARIM,
DELIH-55
....Appellant
versus
DEEPAK SACHDEVA
S/O LATE KARAM CHAND
R/O C-166, DOUBLE STOREY,
DDA FLATS, GARHI, EAST OF KAILASH,
NEW DELHI ...Respondent
Date of institution : 27.01.2020
Date of Reserving judgment : 29.10.2024
Date of Pronouncement : 26.11.2024
Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 1/34
JUDGMENT
1. This is an appeal under section 374 Cr.PC preferred by the appellant against the impugned judgment dated 17.12.2019 and order on sentence dated 23.12.2019 passed by Court of Ld. Metropolitan Magistrate- (NI Act-04), South East District in CC No. 10788/2018 titled Deepak Sachdeva Vs. Vinod Kumar, whereby the appellant/ convict Vinod Kumar was convicted of the offence punishable under Section 138 of Negotiable Instruments Act and was sentenced to simple imprisonment for a period of six months and was also directed to pay compensation of Rs.11,00,000/- to the complainant / respondent within 30 days. In default of payment of compensation of Rs.11,00,000/-, convict/ appellant is to undergo simple imprisonment of four months. For the sake of convenience, hereinafter, the appellant / convict shall be referred to as 'accused' and the respondent shall be referred to as 'complainant'.
BRIEF FACTS
2. The brief facts of the case are correctly noted by the Ld. Trial Court in the following fashion:
"1. Vide this judgment, this Court shall dispose off complaint for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 filed by the complainant Mr. Deepak Sachdeva against accused namely Vinod Kumar. In gist, it is alleged in complaint that complainant advanced friendly loan to the accused of Rs.7,00,000/- (Rupees Seven Lakhs only) on 25.10.2010 on interest @18% per annum and a receipt and promissory note was issued Ex.CW1/1. Accused Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 2/34 issued cheque Ex.CW1/2 of Rs.8,26,000/- each (Rupees Eight Lakhs Twenty Six Thousand each) against part discharge of liability. Complainant presented the cheque, but same was dishonored vide memo Ex.CW1/3 with reasons 'insufficient funds'. The complainant sent a legal demand notice on 14.02.2012 Ex.CW1/4 and the same was delivered on the accused vide AD Card Ex.CW1/7, however, accused did not make payment within statutory period of legal demand notice, hence, this complaint." Hence, being aggrieved, the complainant has filed the present complaint under section 138 of The Negotiable Instruments Act.
TRIAL
3. Vide order dated 21.03.2012, the Ld. Metropolitan Magistrate summoned the accused to face trial u/s 138 NI Act. On 22.02.2013, a notice u/s 251 Cr.P.C. was framed upon the accused to which he pleaded not guilty and claimed trial.
4. During trial, the complainant examined himself as CW-1 and deposed in line with the case set up against the accused. Statement of accused was recorded u/s 313 Cr.P.C, wherein he denied all the evidence put to him by the Ld. Magistrate. In defence, the accused Vinod Kumar examined himself as DW-1 and one Sher Bahadur as DW-2. Upon the conclusion of trial, accused was convicted for the commission of offence punishable u/s 138 NI Act vide the impugned judgment dated 17.12.2019.
Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 3/34 GROUNDS OF APPEAL
5. The grounds cited by the accused against the impugned judgement are as under :
I. BECAUSE the impugned judgment/order is based on conjecture and surmises.
II. BECAUSE the Ld. Trial Court in its impugned judgment at internal page No.6 para No. 12.1(a) wrongly observed that the defense of the appellant is/was that the cheque his cheque got misplaced. The appellant never stated that his cheque had misplaced rather, the appellant had deposed that the cheque and other document/s were given/signed to one Mr. Rakesh Arora who is a money lender at Nabi Karim Area, Delhi towards security of loan amount borrowed from him by his mother however, he (i.e. Rakesh Arora) handed over the same to the respondent/complainant who is admittedly relative of Mr. Rakesh Arora and at his behest/in collusion with Rakesh Arora, the respondent/complainant filed the false case by committing forgery.
III. BECAUSE the Ld. Trial Court wrongly upheld/observed that mere not proving the source of income is not fetal to the case of the complainant (respondent herein) whereas, against this aspect/point there are so many judgments of Hon'ble High Courts and Supreme Court. Hon'ble Delhi High Court in 'Kulvinder Singh -Vs. Kafeel Ahmed' 2013 (1) DCR 417: 2014 (2) JCC (NI) 100 has held- In criminal law guilt of accused must be proved beyond reasonable doubt and if there is SLIGHEST DOUBT about the commission of an offence then the benefit has to accrue to him. In the present case Hon'ble Court/Ld. Magistrate had placed reliance on the provisions of Section 269 SS of Income-Tax Act and acquitted the accused as the complainant has not shown the alleged lent amount in his ITRs and book of accounts.
Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 4/34 Similar view was also taken by Hon'ble High Court of Delhi in 'Vipul Kumar Gupta-Vs. Vipin Gupta' 2012 (4) JCC (NI) 248.
While acquitting the accused in case titled as 'M/s. Pakdhane Cement House -Vs- Ramesh S/o Sheshrao Deshmukh' Ld. Judicial Magistrate, 1" Class, Mangrulpir, District Washim relied upon the ruling in case of 'M.S. Narayana Menon -Vs- State of Kerala' (2006) 6 SCC 39, in which case the Apex Court observed that burden of proof on the shoulders of the accused is not so heavy. He needs not to disprove the prosecution case in its entirety. He can discharge its burden on the basis of preponderance of probabilities through direct or circumstantial evidence.
Acquittal of the accused in case titled as 'M/s. Pakdhane Cement House -Vs- Ramesh S/o Sheshrao Deshmukh' was challenged before Bombay High Court cited as 2012 (2) DCR 681 however, Hon'ble Bombay High Court upheld/sustained acquitting order passed by the Ld. Magistrate.
IV. BECAUSE the Ld. Trial Court has also wrongly observed in its impugned judgment that no question or suggestion was put to the complainant during his cross examination as to how he came into possession of the cheques or the receipt whereas, in cross examination dated 30.03.2015 in the last para such question/ suggestion was put to the respondent/complainant.
V. BECAUSE similarly, the Ld. Trial Court also wrongly observed/ mentioned in impugned judgment that the DW2 (Shri Sher Bahadur) had admitted that he was accused in one case filed by the complainant whereas, in fact the DW2 never stated so and the complainant (Shri Deepak Sachdeva) has not filed any case against him/DW2 in any court.
Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 5/34 VI. BECAUSE the Ld. MM/Trial Court in its impugned judgment at internal page No.11 para No. 13 has wrongly observed that the loan provided by the complainant/respondent to accused/appellant was acknowledged by him/accused vide Promissiory note/receipt Ext. CW1/1 whereas, the accused never/nowhere admitted/acknowledged the same rather, in the whole trial, the accused stated/deposed that the same were handed over to one Shri Rakesh Arora/money lender who further handed over the same to the complainant as stated herein above also.
VII. BECAUSE the Ld. MM/Trial Court altogether ignored the cross examination of the complainant/respondent herein dated 30.03.2015 wherein, his apparent lies/falsehood was clear and apparent entitling the accused for his acquittal and same was completely/altogether contrary to the facts and claim of the case as set forth in the complaint u/S 138 NI Act by the complainant/respondent which itself falsify the whole case of the complainant/respondent however, the cross dated 30.03.2015 was totally ignored by the Ld. MM/Trial Court which are being produced in the paras of Grounds herein under.
VIII. BECAUSE the Ld. MM/Trial Court altogether ignored the vital and relevant fact that the complainant/respondent herein who is a graduate, has claimed in his complaint in para No.1 to have friendly relations with the accused since long whereas, in his cross examination dated 30.03.2015, the complainant/respondent has deposed in 1" para that the friendship with the accused occasioned after 3 to 4 short meetings at the shops. It is surprising, indigestible and hard to understand that merely in short meetings the complainant/respondent allegedly handed over alleged Rs. 7 Lac to the accused/appellant without taking any security and Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 6/34 without verifying the fact as to whether he is capable to return the same or not.
IX. BECAUSE the Ld. MM/Trial Court altogether ignored the vital and relevant fact that as per the para No.1 of the complaint/ANNEXURE A-1, the complainant gave/handed over Rs. 7 Lac to accused allegedly on 25.10.2010 for one year on the alleged demand of accused and on the same day, the accused allegedly executed pronote/promissory note in complainant's favor in the presence of two witnesses and the accused (allegedly) did not return the alleged amount within the agreed period (i.e. one year) and after great persuasion (i.e. after lapsing/passing the agreed one year), the accused issued a cheque in question i.e. 194354 dated 24.10.2011 allegedly to complainant whereas, in cross examination dated 30.03.2015 at page No.2 in para No.2, the complainant has deposed that the amount of Rs. 7 Lac was given to accused after 2 days from the demand which itself falsify the claim/case of the complainant and creates apparent/strong doubts over the claim/ story of the complainant/respondent which is sufficient for the acquittal of the accused because it is basis settled law that the benefit of doubt always goes in favour of the accused. Moreover, the complainant did not show the said huge sum/Rs. 7 Lac in his ITR.
X. BECAUSE the Ld. MM/Trial Court has also altogether ignored the vital and relevant fact and did not considered that in para No.2 of the complaint, the complainant has claimed that the accused issued cheque in question to him after great persuasion (i.e. about on 25.10.2011 and onwards) whereas, in cross examination dated 30.03.2015 at page No.2 in bottom para, the complainant has deposed that the cheque and pronote was given to him by the accused on the same day/date (i.e. on 25.10.2010) which also damages and falsify the claim of the Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 7/34 complainant. In the same page and para of cross examination, the complainant has deposed that the cheque and pronote was given by the accused to him by filing the same by the accused whereas, in the next para at page No.3 of cross examination, the complainant has admitted the suggestion saying/deposing that the cheque and pronote was not filled by the accused/appellant herein. Even the complainant/ respondent was not aware about the fact that who has/had filled the cheque and pronote and the complainant has denied that the alleged witnesses had filled the same.
XI. BECAUSE the Ld. MM/Trial Court has also committed blunder mistake by altogether ignoring the vital and relevant fact that one of the witnesses of pronote/Ext. CW1/1 namely Shri Sher Bahadur/ DW-2 who deposed on 29.08.2019 to the effect that the same (i.e. Ext. CW1/1) was blank when it was given to one Mr. Rakesh Arora (relative of the complainant/respondent) at the time of taking loan from him by the accused.
XII. BECAUSE the Ld. MM/Trial Court has also committed blunder mistake by ignoring and not considering the vital and relevant fact that surprisingly, the complainant/respondent neither mentioned the names of two witnesses of pronote/Ext. CW1/1 namely Shri Sher Bahadur and Shri Manoj Gupta in the list of witnesses filed by him alongwith the complaint nor called them in support of his claim/version.
ΧΙΙΙ. BECAUSE the Ld. MM/Trial Court has also committed apparent and blunder mistake by ignoring and not considering the aforesaid vital, relevant and important facts in its impugned judgment whereas, the accused/appellant had brought the same within the knowledge of Ld. MM/Trial Court in the form of oral arguments as well as written Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 8/34 submissions/written arguments by mentioning relevant and supporting judgments in his favour.
XIV. BECAUSE the Ld. MM/Trial Court has also ignored the judgment of Hon'ble High Court of Bombay titled as 'Smt. Nanda -Vs- Nandkishor 2010(1) Crimes 708 (Bom.) wherein it was held that a money lender cannot enforce such loan transaction lawfully without production of valid money lending license operative at the time of transaction of loan to be recovered. Thus, no fault can be found with the Trial Court as it was duty bound to dismiss the complaint by the complainant who was engaged in business of money lending without a valid money lending license......
In the aforesaid judgment Hon'ble Court further held that court could not have assisted the complainant to facilitate or further the illegal claim or claim prohibited by law in the complaint. Thus, when transaction of money lending without valid license was prohibited by law, no court can help or assist a party money lender to enforce or recover a claim.
Thus, the legal position cannot be disputed that Courts are bound to dismiss the suit by money lender for recovery of loans when such money lender was found carrying on business of money lending on the date or dates of the transaction without having valid money lending license.
Since explanation to Section 138 of the N.I. Act clearly stipulated that the debt or liability means legally enforceable debt or other liability the claim by money lender against her/his borrower without production of valid and operative money lending license covering period of transaction was unenforceable claim under Section 138 of the N.I. Act was bound to dismissed.
Thus, when transaction of money lending without valid Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 9/34 license was prohibited by law, no Court can help or assist a party money lender to enforce or recover a claim, except in accordance with law.
XV. BECAUSE the Ld. MM/Trial Court has committed mistake by ignoring and not considering the relevant and important fact that the complainant in his cross examination dated 30.03.2015 at page No.1 in bottom/last para has categorically admitted that Shri Rakesh Arora is his relative being brother-in-law whereby, it can be ascertained/presumed easily that the appellant/accused and Shri Rakesh Arora both are the resident of Nabi Karim area, Delhi whereas, the complainant/respondent is the resident of Garhi, East of Kailash, Delhi and the accused has no occasion to borrow money from such a person (i.e. complainant) who denied to be a money lender and has no friendship/relationship.
XVI. BECAUSE in fact, the accused/appellant had taken a loan of Rs. one Lac from Shri Rakesh Arora S/o Late Shri Charanjeet Lal R/o A-665, Shastri Nagar, Delhi-110052 in July, 2010 in the name of his mother (namely Smt. Subhadra Devi) and against the said loan, Shri Rakesh Arora had obtained the signatures of the accused/appellant and his mother on some blank promissory notes, blank stamp paper as well as upon some blank papers and also obtained nine blank signed cheques from the accused/appellant. The accused/appellant returned the said borrowed amount with high interest upto Rs. 2, 20,000/- to Shri Rakesh Arora in January, 2011 but he did not return the blank documents to him/appellant rather, Shri Rakesh Arora quarreled with the accused over returning of blank documents and cheques and thereafter, he/Rakesh Arora distributed/disbursed the documents and cheque/s of accused to one Mr. Naresh Kumar who misused the cheque No. 230128 by filling an amount of Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 10/34 Rs. 4, 60,000/- regarding which the accused lodged police complaint to SHO of PS Nabi Karim vide DD No. 41-B dated 17.04.2014 and complaint dated 18.04.2014 to higher police officials however, no action was taken and Mr. Naresh Kumar also filed false cases u/S 138 NI Act as well as recovery suit against the accused/appellant which are still pending at Tis Hazari and Karkardooma Courts.
XVII. BECAUSE Shri Rakesh Arora who is admittedly brother-in-law of the complainant/respondent has also given/handed over the blank pronote/promissory note and cheque in question to the present complainant who has filed the present false case in collusion with him/Rakesh Arora on commission basis by forging/filling the contents in pronote and cheque as per choice and whims.
XVIII. BECAUSE similarly, the real younger brother of Mr. Rakesh Arora namely Shri Devi Dayal had also filed a suit for recovery against the mother of the accused namely Smt. Subhadra Devi titled as 'Devi Dayal-Vs- Subhadra Devi' by showing himself as her tenant on the basis of forged rent agreement which he forged in collusion with his elder brother Rakesh Arora. The said suit was dismissed and subsequent thereto, appeal bearing R.C.A. No. 12/2015 titled as 'Devi Dayal -Vs- Subhadra Devi' was also dismissed by Shri Raj Kumar Ld. ADJ, THC, Delh vide order dated 02.11.2016.
XIX. BECAUSE in fact, Mr. Rakesh Arora, Mr. Devi Dayal and their brother Rajender Arora are money lenders/financers who are running their business of money lending at Nabi Karim, Delhi without having a valid license whereby, they charge very high/heavy interest from the borrowers after taking their signatures on blank papers, promissory notes and cheques in the garb of loan formality and poor persons having Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 11/34 no alternative, sign on blank papers and chaques however, despite taking principal money with huge interest from the borrowers, the above named three brothers starts distributing their cheques and original documents to his other following associates/ accomplices namely (including):
a. Shri Rakesh Arora S/o Late Shri Charanjeet Lal R/o A-665, Shastri Nagar, Delhi-110052, the real brother of appellant.
b. Shri Rajender Arora S/o Late Charanjeet Lal R/o A-665, Shastri Nagar, Delhi-110052, the real brother of appellant.
c. Dinesh Bhatia S/o Late Suraj Prakash Bhatia R/o B-581, Gali No.2, Ganesh Nagar-II, Shakapur, Delhi-110092 d. Mr. Deepak Sachdeva S/o K.C. Sachdeva R/o C-166, DDA Flats, Garhi, New Delhi-110065 (complainant herein) e. Shri Raj Kumar Oberoi S/o Late Shri Jaichand Oberoi R/o J- 9/48, B-Block, Rajouri Garden, New Delhi-110027 f. Tushank Dhall S/o Shri Rajender Dhall R/o C-120, Double Storey DDA Flats, Garhi, New Delhi g. Hemant Verma S/o Shri Rana Pratap Verma presently R/o Gurgaon, Haryana and previously at 6499/6, Gali Hanuman Mandir, Factory Road, Nabi Karim, New Delhi-110055.
h. Naresh Kumar S/o Shri Jugal Kishore R/o 1796, DDA Flats, Nand Nagri, GTB Enclave, New Delhi.
XX. BECAUSE the above named persons have filed so many false cases against different persons in different Courts in collusion with each other on commission basis. The detail of Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 12/34 such cases is already on record.
XXI. BECAUSE the Trial Court/Ld. MM has committed apparent legal mistake in convicting and sentencing the appellant/accused and the impugned judgment/order is tantamount to miscarriage of justice.
XXII. BECAUSE the Ld. M.M./trial court has committed grave mistake and irregularity of law by passing the impugned order without application of judicial mind.
XXIII. BECAUSE the Ld. MM/Trial Court has ignored all the facts and passed the impugned order without rendering sufficient causes and reasons.
XXIV. BECAUSE the Ld. Court below did not appreciate and consider the principle of natural justice that justice should not only be done but it should manifestly and undoubtedly appear to be done.
6. It is prayed that the impugned judgment dated 17.12.2019 and the order on sentence dated 23.12.2019 may be set aside.
SUBMISSIONS OF COMPLAINANT
7. On the other hand, Ld. Counsel for the complainant has argued that the accused has been correctly convicted by Ld. Metropolitan Magistrate and an appropriate sentence has been imposed upon him. He prays for dismissal of the appeal.
DISCUSSION
8. This Court has considered the oral submissions as well as the records.
Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 13/34
9. Recently, the Hon'ble Supreme Court was pleased to define the contours of the law relating to the provision u/s 138 of Negotiable Instruments Act in Rajesh Jain Vs. Ajay Singh 2023 INSC 888. The relevant extracts of the observations are reproduced below for ready reference:-
Section 138 of the NI Act - Necessary Ingredients
25. Essentially, in all trials concerning dishonour of cheque, the courts are called upon to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act.
26. In Gimpex Private Limited vs. Manoj Goel (2022) 11 SCC 705 , this Court has unpacked the ingredients forming the basis of the offence under Section 138 of the NI Act in the following structure:
(1) The drawing of a cheque by person on do account maintained by him with the banker for the payment of any amount of money to another from that account;
(i) The cheque being drawn for the discharge in whole or in part of any debt or other liability;
(iii) Presentation of the cheque to the bank arranged to be paid from that account,
(iv) The return of the cheque by the drawee bank as unpaid either because the amount of money standing to the credit of that account is insufficient Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 14/34 to honour the cheque or that it exceeds the amount
(v) A notice by the payee or the holder in due course making a demand for the payment of the amount to the drawer of the cheque within 30 days of the receipt of information from the bank in regard to the return of the cheque; and
(vi) The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days of the receipt of the notice.
27. In K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7 SCC 510 this Court had summarised the constituent elements of the offence in fairly similar terms by holding:
"14. The offence Under Section 138 of the Act can be completed only with the concatenation of a number of acts.The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (3) failure of the drawer to make payment within 15 days of the receipt of the notice."
28. The five (5) acts as set out in K Bhaskaran's case (supra) are, generally speaking, matters of record and would be available in the form of documentary evidence as early as, at the stage of filing the complaint and initiating prosecution. Apart from the above acts, it is also to be proved that cheque was issued in discharge of a debt or Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 15/34 liability (Ingredient no. (ii) in Gimpex's case). The burden of proving this fact, like the other facts, would have ordinarily fallen upon the complainant. However, through the introduction of a presumptive device in Section 139 of the NI Act, the Parliament has sought to overcome the general norm as stated in Section 102 of the Evidence Act and has, thereby fixed the onus of proving the same on the accused. Section 139, in that sense, is an example of a reverse onus clause and requires the accused to prove the non-existence of the presumed fact, i.e., that cheque was not issued in discharge of a debt/liability.
Burden of Proof and Presumptions: Conceptual Underpinnings
29. There are two senses in which the phrase 'burden of proof' is used in the Indian Evidence Act, 1872 (Evidence Act, hereinafter). One is the burden of proof arising as a matter of pleading and the other is the one which deals with the question as to who has first to prove a particular fact. The former is called the 'legal burden' and it never shifts, the latter is called the 'evidential burden' and it shifts from one side to the other. [See Kundanlal v. Custodian Evacuee Property (AIR 1961 SC 1316)]
30. The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party's case. If, at the conclusion of the trial a party has failed to establish these to the appropriate standards, he would lose Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 16/34 to stand. The incidence of the burden is usually clear from the pleadings and usually, it is incumbent on the plaintiff or complainant to prove what he pleaded or contends. On the other hand, the evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; the burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be is adduced by either side (See Halsbury's Laws of England, 4th Edition para 13). While the former, the legal burden arising on the pleadings is mentioned in Section 101 of the Evidence Act, the latter, the evidential burden, is referred to in Section 102 thereof. [G.Vasu V. Syed Yaseen (AIR 1987 AP139) affirmed in Bharat Barrel Vs. Amin Chand [(1999) 3 SCC 35] ]
31. Presumption, on the other hand, literally means "taking as true without examination or proof". In Kumar Exports v. Sharma Exports (2009) 2 SCC 513, this Court referred to presumption as "devices by use of which courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence."
32. Broadly speaking, presumptions are of two kinds, presumptions of fact and of law. Presumptions of fact are inferences logically drawn from one fact as to the existence of other facts. Presumptions of fact are rebuttable by evidence to the contrary. Presumptions of law may be either irrebuttable (conclusive presumptions), so that no evidence to the contrary may be given or rebuttable. A rebuttable Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 17/34 presumption of law is a legal rule to be applied by the Court in the absence of conflicting evidence (Halsbury, 4th Edition paras 111, 112]. Among the class of rebuttable presumptions, a further distinction can be made between discretionary presumptions ('may presume') and compulsive or compulsory presumptions ('shall presume'). [G. Vasu V. Syed Yaseen (Supra)]
33. The Evidence Act provides for presumptions, which fit within one of three forms: 'may presume' (rebuttable presumptions of fact), 'shall presume' (rebuttable presumption of law) and conclusive presumptions (irrebuttable presumption of law). The distinction between 'may presume' and 'shall presume' clauses is that, as regards the former, the Court has an option to raise the presumption or not, but in the latter case, the Court must necessarily raise the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved, [G.Vasu V. Syed Yaseen (Supra)] Section 139 NI Act-Effect of Presumption and Shifting of Onus of Proof
34. The NI Act provides for two presumptions: Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that 'unless Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 18/34 the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability'. It will be seen that the 'presumed fact' directly relates to one of the crucial ingredients necessary to sustain a conviction under Section
138.
35. Section 139 of the NI Act, which takes the form of a 'shall presume' clause is illustrative of a presumption of law. Because Section 139 requires that the Court 'shall presume' the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase 'unless the contrary is proved'.
36. The Court will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel Vs. Amin Chand] [(1999) 3 SCC 35]
37. Recently, this Court has gone to the extent of holding Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 19/34 that presumption takes effect even in a situation where the accused contends that 'a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar (2019) 4 SCC 197]. Therefore, mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption.
38. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.
39. John Henry Wigmore12 on Evidence states as follows:
"The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption 'disappears as a rule of law and the case is in the Jury's hands free from any rule."
40. The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 20/34 where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non- existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of 'preponderance of probabilities', similar to a defendant in a civil proceeding. [Rangappa vs. Mohan (AIR 2010 SC 1898)]
41. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words 'until the contrary is proved' occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513]25
42. In other words, the accused is left with two options. The first option-of proving that the debt/liability does not exist- is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non- existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 21/34 the case. The preponderance of probability in favour of the accused's case may be even fifty one to forty nine and arising out of the entire circumstances of the case, which includes: the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his 313 statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was 'no debt/liability'. [Kumar Exports and Sharma Carpets, (2009) 2 SCC 513]
43. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact.
44. The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 22/34 presumptions of law or fact. In Kundanlal's case- (supra) when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non- existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Section 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well.
45. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption 'disappears' and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa vs. Mudibasappa, AIR 2019 SC 1983; See also, Rangappa vs. Sri Mohan (2010) 11 SCC 441].
Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 23/34 Existence of Statutory Presumptions
10. As per complainant, the cheque in question was issued by the accused in favour of the complainant in order to discharge his liability towards the loan @ Rs.7,00,000/- availed from the complainant on 25.10.2010.
11. On the other hand, the accused denies any such liability and claims as under, in response to notice framed upon him u/s 251 Cr.P.C:-
"The cheque has not been given to the present complainant since I do not know the complainant personally. Nine blank cheques have been handed over to Rakesh Arora for the business transaction as a security cheque. The present complainant is a relative of Rakesh Arora and I have no business transaction or relation in any way with the present complainant. I may be allowed to cross examine the complainant."
12. Apparently, accused does not dispute that the cheque in question belongs to him or bears his signatures. The accused disputes the claim of the complainant that the cheque in question was handed over to the complainant. Accused claims that the cheque in question was handed over to one Rakesh Arora in the course of a business transaction.
13. In such circumstances, this court finds it appropriate to look into the evidence in order to assess whether or not the cheque in question was handed over to the complainant by the accused. In this regard, this Court has gone through the affidavit Ex.CW1/A filed by the complainant, wherein he has categorically deposed that the cheque in question was handed over by the accused to him in order to repay the loan of Rs.
Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 24/34 7,00,000/- previously availed by him (accused). Complainant was cross- examined at length on behalf of the accused. During the course of cross- examination of complainant, the accused has made several relevant admissions. The relevant portion of the cross-examination of complainant / CW-1 is as under:-
"............I know the accused for last six years approximately. My acquaintance with the accused is not related to my business, however, I know the accused as I am regularly visiting Sadar Bazar i.e. the locality where the accused resides. I purchase the raw materials from Sadar Bazar and know the various shopkeepers of the locality. The accused is not engaged in the business for which I used to visit the Sadar Bazar. The friendship with the accused was occasioned after 3 to 4 short meetings at the shops.............The loan of Rs. 7 lakh as mentioned over the promissory note was given to the accused by me after two days of his demand. It is correct that I have not mentioned in the complaint as well as affidavit about the said fact. All the amount was given in cash. The said amount was lying with me at my home. I did not withdraw any amount from my bank account for this purpose. The said amount of Rs. 7 lakh was lying with me prior to the demand of the accused......... I did not give single penny on the account of loan to the accused except the present transaction. Vol. (the accused was a deal of selling the property in favour of me in the local area and accused has a witness in the said transaction)............It is correct that I have not mentioned this loan in my any of th IT returns subsequently as well...........At Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 25/34 this stage, witness states that the cheque and the pronote was given to me on the same date and the date put on the cheque subsequently. Vol. (the cheque was handed over by the accused on 24/10/2011 and filling the amount by the accused). I cannot tell as to whether I have mentioned in my complaint as well as affidavit in evidence that I have received the pronote as well as the cheque on the same date. The repeated request as I have mentioned in para 3 of Ex.CW1/A was actually started six month after the issuance of alleged pronote............... It is correct that Ex. CW1/1 is the original promissory note. The Ex. CW1/1 was never demanded by the accused from me and neither the same was returned.....It is correct that the pronote was not filled by the accused. Vol. ( it was someone sitting along with the accused filled the pronote).................."(Cross examination of CW-1 Sh. Deepak Sachdeva dated 30.03.2015).
14. The above cross-examination reflects that the accused admits (i) that he was previously acquainted with the complainant (which is in contradiction to his claim that he does not know the complainant); (ii) that he availed a loan of Rs. 7 lakh from the complainant at the relevant time;
(iii) that he issued a promissory note Ex.CW1/1 in favour of the complainant at the relevant time and; (iv) that the cheque in question was issued by the accused as the complainant repeatedly requested for return of the loan amount (as mentioned in para 3 of the affidavit Ex.CW1/A). The said admissions are binding upon the accused in view of the observations made made by Hon'ble Supreme Court in Balu Sudam Khalde and Anr. Vs. Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 26/34 State of Maharashtra 2023 SCC Online SC 355 . The above admissions clearly reflect that the cheque in question was handed over by the accused to the complainant. This inference is sufficient to discard the defence raised by the accused during the course of trial to the effect that the cheque in question was handed over to one Rakesh Arora and not to the complainant. Be that as it may, for the sake of closure of the issue, this Court finds it appropriate to deal with the said defence at length.
15. This Court has already reproduced the plea of defence taken by the accused at the time of framing of notice u/s 251 Cr.P.C. in the aforegoing paragraphs. In his statement recorded u/s 313 Cr.PC, the accused states that:-
"I did not take any loan from the complainant. Complainant obtain my signatures on blank papers. Complainant has cheated many persons and file various cases after obtaining the signatures on blank papers............ I gave nine blank cheques to including above mentioned cheque to Rakesh Arora who is brother in law of complainant. Rakesh Arora used to lend money to people through me".
15.1 In his defence, accused examined himself as DW-1 and deposed as under:-
"I have small shop and also do part time business of property. I took loan of Rs.1,00,000/- from one Rakesh Arora in July, 2010. Rakesh Arora is the brother-in-law of the complainant. I know Rakesh Arora for last 20-25 years. I had friendly relation with Rakesh Arora. I had Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 27/34 given nine signed blank cheques of Bank of Baroda to the Rakesh Arora and nine pro-notes signed by me and one blank stamp paper of Rs.50/- signed by me and my mother at the time of taking the loan. Thereafter, I returned his loan in 6-7 months. I asked for returning my documents but Rakesh Arora did not return my documents. He filed one case Civil case through Devi Dayal against my mother which we won. He also won the appeal and he also filed one cheque bounce case of Rs.4,60,000/- through one Naresh Kumar. This present case has also been filed by him through Deepak Kumar. All my documents have been misused. The pro-note Ex. CW-1/1 was given to Rakesh Arora and not to the complainant. The witnesses Manoj Gupta and Sher Bahadur are false witness and the address of Manoj Gupta mentioned in the pro-note is my address. The pro-note is false and fabricated. I used to help Rakesh Arora for lending money on interest. Rakesh Arora has misused my documents and I have no liability towards the complainant as I do not know him. I do not have any receipt of re-payment made to the Rakesh Arora. It was made in the presence of my maternal uncle".
15.2 Accused also examined one Sher Bahadur as DW-2, who deposed as under:-
"I am the summoned witness in the present case. One Rakesh Arora (brother in law of the complainant) had advanced a loan of Rs.1,00,000/- to Subhdhara Devi on Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 28/34 interest @ 4% per month. Rakesh Arora asked for the signature of Subhdhara Devi, myself and Vinod Kumar (accused) on three blank paper. 9 blank singed cheques were also taken from Sh. Vinod Kumar. After one year the amount the principal as well as the interest amount of Rs.2,25,000/- was returned by the accused to Sh. Rakesh Arora. Sh. Rakesh Arora assured the accused that he will not misuse the cheque and will return the same along with the three pronote. Sh. Rakesh Arora and his brother (Sh. Rajender Arora and Sh. Devi Dayal) have filed around 250 cases. Eight of the cases even pending against me".
16. It is apparent from the record that at the stage of recording of plea of defence u/s 251 Cr.P.C, the accused has stated that the cheque in question was handed over to one Rakesh Arora as a security for a business transaction. However, during cross-examination of complainant, accused has put suggestions to the effect that the cheque in question was handed over to said Rakesh Arora in respect of one loan transaction. Apparently, the accused has switched from 'business transaction' to 'loan transaction' without any explanation. It may be noted here that at the stage of recording of his statement u/s 313 Cr.P.C, the accused has claimed that he had handed over 09 blank cheques, including the cheque in question, to said Rakesh Arora, who used to lend money to people through him (accused). There is no mention of either the 'business transaction' or the 'loan transaction', as were his claim in previous stages of the trial. This omission is also unexplained till date. That apart, it has been noted by this Court that at the stage of recording of statement u/s 313 Cr.P.C. itself, accused has claimed Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 29/34 that '......Complainant obtained my signatures on blank papers. Complainant has cheated many persons and filed various cases after obtaining the signatures on blank papers '. Accused has not explained as to why he handed over blank signed papers to the complainant if he had no transaction with the complainant, as he has been claiming throughout the trial. It seems that the accused has been blowing hot and cold about the facts till the stage of 313 Cr.P.C. The same dictates that an adverse inference may be drawn against the accused.
17. Coming to the statement made by accused in defence, as DW-1, it is noticed that the accused claims to have availed a loan of Rs. 1,00,000/- from Rakesh Arora in July 2010. Said Rakesh Arora is the brother of the complainant. At the time of availing said loan, he had issued 09 blank cheques, 09 pronotes and one blank signed stamp paper in favour of said Rakesh Arora. He claims to have repaid the loan in 6-7 months and sought a return of his said documents, but said Rakesh Arora did not return said documents. Thereafter, said Rakesh Arora filed civil and criminal litigation's through his proxies Devi Dayal and Naresh Kumar by misusing his said documents. He further claims that the pronote Ex. CW1/1 was not given to the complainant but infact it was given to said Rakesh Arora. He claims that he had no liability towards the complainant. DW-2 Sher Bahadur, examined by the accused in defence, deposed that said Rakesh Arora had advanced a loan of Rs. 1,00,000/- to Subhadra Devi and at that time he had taken signatures of said Subhadra Devi, accused Vinod Kumar and himself (DW-2) on 03 blank papers. He further deposed that 09 blank signed cheques were also taken from accused Vinod Kumar. He further deposed that the loan as well as the interest amount were returned by the accused to said Rakesh Arora after 1 year and that said Rakesh Arora had Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 30/34 assured that he shall not misused the cheques and will return the same along with 03 pronotes.
18. A bare perusal of oral testimony of accused Vinod Kumar (DW-1) and DW-2 Sher Bahadur reflects that both of them are deposing in a manner contradictory to each other. DW-1 /accused deposed that he had availed loan of Rs. 1 lakh from said Rakesh Arora; but DW-2 Sher Bahadur deposed that Smt. Subhadra Devi had availed a loan of Rs. 1 lakh from said Rakesh Arora. DW1/ accused deposed that he had handed over 09 signed blank cheques, 09 pronotes and a stamp paper signed by him and his mother to said Rakesh Arora at that time; but DW 2 Sher Bahadur deposed that 09 blank cheques and 03 pronotes were taken from the accused by said Rakesh Arora. DW1/accused deposed that he returned the loan in 6-7 months; but DW2 Sher Bahadur deposed that accused returned the loan and interest amount (Rs. 2,25,000/-) after one year. That apart, none of the said witnesses have deposed about the exact date when the said loan was advanced by said Rakesh Arora. In fact, the most important fact to be noted here is the omission of the accused in not seeking the return of any of the documents allegedly executed by him in favour of said Rakesh Arora despite repayment of the loan. No proceedings / complaint were initiated against said Rakesh Arora despite the receipt of demand notice from the complainant herein after the dishonour of the cheque in question. No explanation has been furnished by the accused in respect of these facts.
19. Given the admissions made by the accused during the course of cross-examination of complainant / CW-1, the general inconsistency in the defence claimed and raised by the accused at different stages of the trial and the contradictions between the oral testimony of defence witnesses examined by the accused, this Court finds it appropriate to reject the entire Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 31/34 defence raised by the accused regarding the alleged handing over of the cheque in question to Rakesh Arora and not to the complainant.
20. At the cost of repetition, it must be observed that the accused does not dispute that the cheque in question belongs to him or bears his signatures. This Court has already held in the aforegoing paragraphs that the cheque in question was handed over by the accused to the complainant. Admittedly, the cheque in question was dishonored upon being presented for encashment by the complainant. Service of the legal demand notice is admitted by the accused. Admittedly, the accused did not make any payment demanded vide the said legal notice within the period prescribed u/s 138 of NI Act. All the above facts are sufficient to invoke the presumptions available to the complainant u/s 118 NI Act and u/s 139 NI Act. As such, the evidential burden stood transferred upon the accused to prove that the cheque in question was not issued towards discharge of any liability. Until the said evidential burden is discharged by the accused, the presumptions available against the accused u/s 118 NI Act and u/s 139 NI Act will have to be assumed to be true, without expecting the complainant to do anything further. The said burden could be discharged by the accused either by leading defence evidence to conclusively establish that the cheque was not issued in discharge of a debt / liability or by proving the non existence of debt / liability on preponderance of probabilities by referring to the particular circumstances of the case. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence. Once the accused produces such evidence, the burden shifts back to the complainant and the above mentioned presumptions disappear.
Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 32/34 Rebuttal of Statutory Presumptions
21. As to the question whether the said presumptions have been successfully rebutted by the accused or not, it must be observed by this Court that the accused could not rebut the said presumptions during the course of cross-examination of complainant / CW1 (please refer to discussion made in the aforegoing paragraphs). Rather, the accused has virtually admitted the entire case set up by the complainant during the course of cross-examination of complainant / CW1.
22. This court has already dealt with the evidence led in defence by the accused during the course of trial. Accused has not been able to rebut the statutory presumptions through the evidence led in defence either.
DECISION
23. Apparently, all the statutory presumptions available to the complainant remain unrebutted and intact. All the ingredients of the offence punishable u/s 138 NI Act are available against the accused. Consequently, it has to be held that accused was correctly convicted u/s 138 NI Act by the Ld. Metropolitan Magistrate concerned. For the afore-going reasons, the impugned judgment dated 17.12.2019 is hereby affirmed and upheld.
SENTENCE
24. Admittedly, the cheque in question was issued for a payment of Rs.8,26,000/-, in the year 2011. Admittedly, the complainant has been running from pillar to post to recover the said amount. So far as the aspect of sentencing by Ld. Trial Court is concerned, I am of the view that Ld. Trial Court has already taken quite a lenient view while sentencing the accused. As such, the sentence imposed by the Ld. Trial Court does not call for any interference. Benefit of Section 428 Cr.P.C. be also given to the accused.
Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 33/34
25. Appeal filed by accused therefore stands disposed of in above Digitally signed terms. by LOVLEEN Date: LOVLEEN 2024.11.26 Announced & Dictated in the 16:24:04 +0530 Open Court today i.e. 26.11.2024 (Lovleen) ASJ-03 (South East) Saket Courts, Delhi Crl. Appeal No: 37/2020 VINOD KUMAR. Vs DEEPAK SACHDEVA 34/34