Delhi District Court
Simmi Anand vs Raju Daga on 28 March, 2024
Simmi Anand Vs. State & Anr.
IN THE COURT OF SH. VIJAY SHANKAR,
ADDITIONAL SESSIONS JUDGE - 04, (WEST DISTRICT)
TIS HAZARI COURTS, DELHI
CA No.:- 280/2023
CNR NO.:- DLWT01-006705-2023
IN THE MATTER OF :-
Simmi Anand
W/o Sh. Inderjit Anand,
Previously residing at:-
WZ-36A, Gali No.16,
Krishna Puri, Tilak Nagar,
New Delhi-110018
Presently residing at:-
H.No. 24/2, 1st floor,
Flat No. 8, Mohan Garden,
Uttam Nagar, New Delhi-110059 .... Appellant
VERSUS
1. The State
Govt. of NCT of Delhi,
New Delhi
2. Raju Daga
W/o Sh. Heera Lal Daga,
R/o WZ-88, Krishna Puri,
Street No.16, Tilak Nagar,
New Delhi-110018 .... Respondents
Date of institution of the appeal : 18/08/2023
Date on which judgment was reserved : 26/02/2024
Date of judgment : 28/03/2024
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.03.28
17:03:20
+0530
CA No. 280/2023 Page No.1/43
Simmi Anand Vs. State & Anr.
JUDGMENT
1. By way of present judgment, this Court shall conscientiously adjudicate upon criminal appeal under section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") filed by the appellant against the judgment dated 26/06/2023 (hereinafter referred to as 'impugned judgment' ) and order on sentence dated 10/07/2023 (hereinafter referred to as 'impugned order') passed by Ms. Mansi Malik, Ld. MM-01, N.I. Act, West District, Tis Hazari Courts, Delhi, in Criminal Complaint No. 1730/2017 under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "N.I. Act") titled as "Raju Daga Vs. Simmi Anand".
In the present appeal, the appellant has prayed to set- aside the impugned judgment dated 26/06/2023 and order on sentence dated 10/07/2023 passed by the Ld. Trial Court.
2. Appellant has preferred the present appeal against the judgment dated 26/06/2023 and order on sentence dated Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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10/07/2023 passed by the Ld. Trial Court. Vide judgment dated 26/06/2023, the appellant/accused was convicted by the Ld. Trial Court for the offence u/s. 138 N.I. Act. Vide order on sentence dated 10/07/2023, the appellant/accused was sentenced to undergo simple imprisonment for the period of three months and she was also directed to pay fine of Rs. 4,44,000/- (Rupees Four Lakh Forty Four Thousand Only) (including interest @ 8% per annum on the cheque amount from the date of institution of the present matter), out of which the entire amount shall be payable as compensation to the complainant as per Section 143 (1) (Proviso) N.I. Act r/w Section 357(1)(3) of Cr.P.C. and in default of payment of fine/compensation, appellant/accused shall further undergo simple imprisonment for the period of two months.
3. Brief facts necessary for just adjudication of the present appeal as stated in the present appeal are that the complainant (respondent herein) had filed the complaint case u/s. 138 N.I. Act against the accused (appellant herein). Vide judgment dated 26/06/2023, the appellant/accused was convicted Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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by the Ld. Trial Court for the offence u/s. 138 N.I. Act. Vide order dated 10/07/2023 order on sentence was passed. The appellant has not filed any other similar appeal against the impugned judgment and order on sentence before any other Court of law. The present appeal has been filed by the appellant within limitation.
4. The appellant has challenged the impugned judgment and order on sentence on the grounds, as mentioned in the present appeal.
Grounds of appeal- The impugned judgment is against the facts and law and based upon facts contrary to record. Ld. Trial Court did not appreciate that the complainant/respondent No.2 has failed to discharge the onus that the cheque was given for legally recoverable liabilities as the complainant/respondent No.2 miserably failed to prove or place any document to show that the appellant took any alleged loan. The complainant/respondent No.2 neither in legal notice nor complaint u/s. 138 N.I. Act nor evidence by way of affidavit mentioned that she had paid/ Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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disbursed the loan of Rs.Three Lakh to the appellant/ accused. In the pleadings, the complainant/ respondent No.2 neither mentioned that she had given any alleged loan of Rupees Three Lakh to the appellant nor mentioned the mode of payment of alleged loan nor source of arrangement of such alleged amount in cash nor date of disbursement of alleged loan nor the exact date of receiving/ issuance of cheque in question and same shows that the complaint of the complainant/ respondent No.2 is based upon false, frivolous, vague and baseless facts. Ld. Trial Court has failed to consider the fact that complaint u/s. 138 N.I. Act was of dated 20/03/2017 but its supporting affidavit and pre-summoning affidavit were already attested on 18/03/2017. Ld. Trial Court has failed to consider the fact that the complainant only first time in her cross-examination deposed that the accused has taken a loan of Rs. Three Lakh in cash from her in the first week of August, 2014 but she does not remember the exact date. The complainant further alleged that the loan was given from cash kept at home. The complainant has admitted in her cross- examination that the cash was not withdrawn from any of her Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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bank accounts and she is not engaged in any work and she filed ITR and she does not know the income disclosed as her son files the ITR. She further admitted that she had not mentioned the loan amount given to the accused in her ITR. The son of the complainant/respondent no.2 is a Chartered Accountant by profession and he is very well aware that no transaction of more than Rs. 20,000/- can be made in cash. It is admitted by the complainant/ respondent No.2 that her ITRs have been filed by her son but she has not mentioned the details of any alleged loan of Rs. Three Lakh given to the appellant/accused. Ld. Trial Court has failed to consider the fact that the complainant/ respondent No.2 failed to produce on record any documentary evidence with respect to the disbursement of Rs. Three Lakh as friendly loan to the appellant. Ld. Trial Court has failed to appreciate the fact that the appellant in her application u/s 145(2) N.I. Act as well as in her affidavit clearly stated that she had taken only Rs.50,000/-
and in discharge of her said liability, she had paid much excess amount of Rs.87,000/- to the complainant but the complainant has misused the security blank signed cheque, which she has Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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given to the complainant at the time of taking the loan of Rs.50,000/- in three installments of Rs.20,000/-, Rs.20,000/- and Rs.10,000/- respectively. The appellant/accused had handed over a blank signed security cheque only and all the other fields/columns of the said cheque were filled up and manipulated/fabricated by the complainant/ respondent No.2 as per her convenience to cause wrongful loss to the appellant without having any legally recoverable liability towards her. On bare perusal of the cheque, it is clearly depicted that the cheque fields such as drawer name, date and amount in numeric digits as well as English language are not in the handwriting of the appellant. Ld. Trial Court has failed to appreciate the fact that the complainant and her son are indulged in borrowing money business without having any money lending license and at the time of providing money to the needy persons, they used to take blank signed security cheque from them. Complainant and her son in collusion and connivance with each other are indulged in misusing the cheque taken by them from the innocent and needy people at the time of small financial loans on heavy interest. Ld. Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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Trial Court has failed to appreciate the fact that the complainant just to cover up her own wrongs, lapses and misleads, most of the time of cross-examination did not co-operate the counsel for the appellant and refused to give the answers of the questions. The trustworthiness of such witness is doubted and reliance of the same tantamounts to miscarriage of justice. Ld. Trial Court has failed to appreciate the fact that admittedly the complainant did not withdraw any amount from her bank accounts to arrange alleged loan amount of Rs. Three Lakh given to the appellant.
Ld. Trial Court has failed to appreciate the fact that the complainant has no documentary evidence/receipt of alleged disbursement of Rs. Three Lakh to the appellant/accused in August 2014. Ld. Trial Court has failed to establish the alleged legally recoverable/enforceable liability in the absence of any documentary evidence/ receipt/ acknowledgment. If a cheque is not drawn for a specified amount, it does not fall under the definition of bill of exchange and it cannot be called a cheque within the meaning of Section 5 & 6 of N.I. Act. Ld. Trial Court has failed to appreciate that the evidence led by the accused has Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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proved beyond reasonable doubt that the complainant has no legally enforceable debt towards the accused. The burden of proving her case was on the complainant but she failed to do so.
Ld. Trial Court has ignored the fact that date of cheque and name of the drawer were manipulated, manufactured and filled up later on. The cheque in question was handed over by the accused to the complainant as blank security cheque, which only bears the signature of the accused and as such blank cheque issued without mentioning amount, date and drawer's name is not a cheque or bill of exchange as per N.I. Act. The impugned judgment is bad in law and based on conjectures and surmises and same is liable to be set aside.
5. The respondent has contested the present appeal of the appellant by filing detailed reply, wherein she denied the contents of the appeal and prayed for dismissal of the same.
6. Before proceeding further, it is relevant to mention here the proceedings before the Ld. Trial Court.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.03.28
17:05:15
+0530
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Simmi Anand Vs. State & Anr.
(i) The complainant Raju Daga had filed the complaint
u/s. 138 N.I. Act against the accused Simmi Anand before the Ld. Trial Court.
It is mentioned in the complaint u/s. 138 N.I. Act that the accused is known to the complainant since many years as they are neighbours. In the first week of August 2014, the accused had approached the complainant for taking friendly loan of Rs.3,00,000/- for the period of 24 months as the accused had faced some financial difficulties and the accused had assured the complainant to pay the same within time. After expiry of 24 months, the complainant had approached the accused for return of her loan amount but the accused made false excuses on one pretext or the other. After many requests made by the complainant, the accused had issued a cheque bearing No. 079082 dated 10/02/2017 of Rs.3,00,000/- of Union Bank of India, Vikaspuri Branch, Delhi-110018 in discharge of her liability towards the complainant and assured that the same is good for encashment. As per instruction of the accused, the complainant had presented the said cheque for encashment Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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before her bank i.e. ICICI Bank but the said cheque was dishonoured with the remarks "funds insufficient" vide returning memo dated 16/02/2017. Immediately upon the receipt of aforesaid information, the complainant had apprised the accused about the same and requested to make the payment of said cheque but the accused did not pay any heed to said request and did not make the payment of the cheque amount to the complainant. Thereafter, the complainant had sent a legal notice dated 29/02/2017 through her counsel to the accused through registered AD/speed post and the said legal notice was duly served upon the accused. Accused had issued the aforesaid cheque to the complainant in discharge of her legally enforceable liability and to pay her legal debt. The accused despite receipt of legal notice did not make the payment of the aforesaid cheque to the complainant.
(ii) Thereafter, the complainant had led her pre-
summoning evidence by filing her evidence by way of affidavit, wherein she reiterated and reaffirmed the contents of her Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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complaint u/s. 138 N.I. Act.
(iii) Vide order dated 31/03/2017 passed by the Ld. Trial Court, it was observed that prima-facie case u/s. 138 N.I. Act is made out against the accused and summons to the accused were issued.
(iv) Finding a prima-facie case against the accused, notice u/s. 251 Cr.P.C. for the offence u/s. 138 N.I. Act was given to her to which she pleaded not guilty and claimed trial.
Vide order dated 16/02/2018 passed by the Ld. Trial Court, application u/s. 145 (2) N.I. Act of the accused was allowed and matter was fixed for complainant evidence.
(v) Complainant in support of her case and in post- summoning evidence had examined herself as CW-1. Complainant had adopted her pre-summoning evidence as her post-summoning evidence also. Complainant/CW-1 was cross- examined by counsel for the accused.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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Complainant/ CW-1 in her testimony had relied upon cheque bearing No.079082 dated 10/02/2017 Ex.CW-1/1, returning memo dated 16/02/2017 Ex.CW-1/2, copy of legal notice dated 27/02/2017 Ex.CW-1/3, postal receipt of registered AD Ex.CW-1/4, postal receipt of speed post Ex.CW-1/5, tracking reports Ex.CW-1/6 & Ex.CW-1/7, complaint Ex.CW-1/8, rent agreement dated 19/06/2013 Ex.CW-1/9, rent agreement dated 22/07/2013 Ex.CW-1/10, rent agreement dated 25/07/2013 Ex.CW-1/11, rent agreement dated 28/07/2014 Ex.CW-1/12 and ITRs of the complainant Ex.CW-1/13 & Ex.CW-1/14.
(vi) Separate statement of the accused was recorded u/s. 313 r/w section 281 Cr.P.C. wherein she denied the allegations against her and rebutted the complainant evidence against her. It was stated by the accused in her statement that she had taken a loan of Rs.50,000/- at the rate of interest 10 percent per month from the complainant in the year 2013-14 and she had given the cheque in question as blank singed as security and she had repaid the entire loan amount to the complainant in cash in Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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the year 2016. It was also stated that the complainant used to put her signatures in a plain copy on the amount received by her. It was also stated that she had received the legal notice. It was also stated that she has no legal liabilities towards the complainant as alleged by her. It was also stated by the accused that she wants to lead defence evidence.
(vii) The accused had lead defence evidence and got examined herself as DW-1. Accused/ DW-1 had filed her evidence by way of affidavit. Accused/ DW-1 was cross-
examined by counsel for the complainant.
(viii) Thereafter, final arguments were heard by the Ld. Trial Court. Vide impugned judgment passed by the Ld. Trial Court, accused was convicted for the offence u/s. 138 N.I. Act and order on sentence was passed by the Ld. Trial Court.
7. This Court already heard the arguments on the present appeal advanced by Ld. Counsel for the revisionist, Ld. Counsel for the respondent No.2 and Addl. PP for the State/ Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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respondent No.1. Perused the material available on record.
During the course of arguments, it was submitted by Ld. Counsel for the appellant that the impugned judgment and order on sentence are liable to be set-aside on the grounds, as mentioned in the present appeal. On the other hand, it was submitted by Ld. Counsel for the respondent No.2 that the Ld. Trial Court has passed the impugned judgment and order on sentence in accordance with law and there is no merits in the present appeal and the same is liable to be dismissed.
8. For the sake of ready reference, section 138 N.I. Act is reproduced as under:-
Section 138- Dishonour of cheque for insufficiency, etc., of funds in the account - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.
(b)the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation. - For the purposes of this section, `debt or other liability' means a legally enforceable debt or other liability.
Ingredients of Section 138 N.I. Act have been specified by the Hon'ble Supreme Court of India in case titled as "Gimpex Private Limited Vs. Manoj Goel", {(2021) SCC Online SC 925} as under:-
"The ingredients of the offence under Section 138 Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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are:
(i) The drawing of a cheque by person on an account maintained by him with the banker for the payment of any amount of money to another from that account;
(ii) The cheque being drawn for the discharge in whole or in part of any debt or other liability;
(iii) Presentation of the cheque to the bank;
(iv) The return of the cheque by the drawee bank as unpaid either because the amount of money standing to the credit of that account is insufficient to PART C honour the cheque or that it exceeds the amount arranged to be paid from that account;
(v) A notice by the payee or the holder in due course making a demand for the payment of the amount to the drawer of the cheque within 30 days of the receipt of information from the bank in regard to the return of the cheque; and
(vi) The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days of the receipt of the notice".
9. The object of N.I. Act has been elaborated by the Hon'ble Supreme Court of India in case titled as M/s Dalmia Cement (Bharat) Ltd. Vs. M/s. Galaxy Traders and Agencies Ltd., (2001(1) R.C.R. (Criminal) 646) and it was held that :-
"The Act was enacted and Section 138 thereof incorporated with a specified object of making a special provision by incorporating a strict liability so far as the cheque, a negotiable instrument, is concerned. The law relating to negotiable instrument is the law of commercial Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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world legislated to facilitate the activities in trade and commerce making provision of giving sanctity to the instruments of credit which could be deemed to be convertible into money and easily passable from one person to another. In the absence of such instruments, including a cheque, the trade and commerce activities, in the present- day world, are likely to be adversely affected as it is impracticable for the trading community to carry on with it the bulk of the currency in force. The negotiable instruments are in fact the instruments of credit being convertible on account of legality of being negotiated and are easily passable from one hand to another. To achieve the objectives of the Act, the legislature has, in its wisdom, thought it proper to make such provisions in the Act, for conferring such privileges to the mercantile instruments contemplated under it and provide special penalties and procedure in case the obligations under the instruments are not discharged. The laws relating to the Act are, therefore, required to be interpreted in the light of the objects intended to be achieved by it despite there being deviations from the general law and the procedure provided for the redressal of the grievances to the litigants. Efforts to defeat the objectives of law by resorting to innovative measures and methods are to be discouraged, lest it may affect the commercial and mercantile activities in a smooth and healthy manner, ultimately affecting the economy of the country".
It was held by Hon'ble Supreme Court of India in case titled as "M/s Laxmi Dyechem Vs. State of Gujarat & Digitally signed by VIJAY SHANKAR VIJAY Date: SHANKAR 2024.03.28 17:07:37 +0530 CA No. 280/2023 Page No.18/43 Simmi Anand Vs. State & Anr.
Ors.", {(2012) 13 SCC 375} that :-
"Chapter XVII comprising Sections 138 to 142 of the Negotiable Instruments Act was introduced in the statute by Act 66 of 1988. The object underlying the provision contained in the said Chapter was aimed at inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business and day to day transactions by making dishonour of such instruments an offence. A negotiable instrument whether the same is in the form of a promissory note or a cheque is by its very nature a solemn document that carries with it not only a representation to the holder in due course of any such instrument but also a promise that the same shall be honoured for payment. To that end Section 139 of the Act raises a statutory presumption that the cheque is issued in discharge of a lawfully recoverable debt or other liability. This presumption is no doubt rebuttable at trial but there is no gainsaying that the same favours the complainant and shifts the burden to the drawer of the instrument (in case the same is dishonoured) to prove that the instrument was without any lawful consideration. It is also noteworthy that Section 138 while making dishonour of a cheque an offence punishable with imprisonment and fine also provides for safeguards to protect drawers of such instruments where dishonour may take place for reasons other than those arising out of dishonest intentions. It envisages service of a notice upon the drawer of the instrument calling upon him to make the payment covered by the cheque and permits prosecution only after the expiry of the statutory period and upon failure of the drawer to make the payment within the said period.". Digitally signed by VIJAY SHANKAR
VIJAY Date: SHANKAR 2024.03.28 17:07:48 +0530 CA No. 280/2023 Page No.19/43 Simmi Anand Vs. State & Anr.
10. Before proceeding further, it is relevant to discuss the other relevant provisions of N.I. Act.
Section 6 N.I. Act has prescribed the definition of cheque and cheque is Negotiable Instrument within the meaning of section 13 of the Act. Section 30 N.I. Act talks about the liability of the drawer.
Section 20 N.I. Act talks about inchoate stamped instruments. Section 87 talks about effect of material alteration of a Negotiable Instrument.
Section 118 N.I. Act talks about presumptions as to negotiable instruments of consideration, date, time of acceptance, time of transfer, order of endorsement, stamps and holder in due course.
Section 139 N.I. Act deals with presumption of law in favour of holder of a cheque. It provides that unless the contrary is proved, it shall be presumed that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. It is a rebuttable presumption of law and the burden of proving that a cheque has not been issued for a debt or liability is on the accused.
Digitally signedby VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.03.28
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Simmi Anand Vs. State & Anr.
11. Vide impugned judgment dated 26/06/2023, the Ld. Trial Court convicted the appellant/ accused for the offence u/s. 138 N.I. Act on the grounds that:-
(a) The accused has not denied her signature on the cheque in question.
(b) The accused has failed to raise a probable defence.
(c) The accused had admitted the receiving of legal notice.
(d) The complainant has proved all essential ingredients of Section 138 N.I. Act.
12. CONTENTIONS
(a) It is the contention of the appellant that the cheque in question bears the signature of the appellant but the appellant had not filled up the other particulars in the cheque and in view of the same, impugned judgment and order on sentence are liable to be set-aside.
Section 20 N.I. Act talks about inchoate stamped instruments. Section 20 N.I. Act provides that where a person Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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delivers a signed but a wholly blank or written incomplete negotiable instrument, he is deemed to have given prima-facie authority to the holder to fill-up the particulars in it or complete it and this makes him liable for the amount mentioned therein, in the capacity in which he signed the same, to any holder in due course of such amount. Thus, blank or incomplete written but signed cheque and filled-up by any other person is a valid negotiable instrument and prosecution under Section 138 N.I. Act can be initiated on the basis of such a cheque.
It was held by Hon'ble Supreme Court of India in case titled as " Bir Singh Vs. Mukesh Kumar", {(2019) 4 SCC 197} that:-
"A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.
If a signed blank cheque is voluntarily Digitally signed by VIJAY SHANKAR VIJAY Date:
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presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative.
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.
The fact that the appellant-complainant might have been an Income Tax practitioner conversant with knowledge of law does not make any difference to the law relating to the dishonour of a cheque. The fact that the loan may not have been advanced by a cheque or demand draft or a receipt might not have been obtained would make no difference. In this context, it would, perhaps, not be out of context to note that the fact that the respondent-accused should have given or signed blank cheque to the appellant- complainant, as claimed by the respondent-accused, shows that initially there was mutual trust and faith between them. Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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In the absence of any finding that the cheque in question was not signed by the respondent- accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant-complainant, it may reasonably be presumed that the cheque was filled in by the appellant-complainant being the payee in the presence of the respondent-accused being the drawer,at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of the payee. The High Court ought not to have acquitted the respondent- accused of the charge under Section 138 of the Negotiable Instruments Act.
In our considered opinion, the High Court patently erred in holding that the burden was on the appellant-complainant to prove that he had advanced the loan and the blank signed cheque was given to him in repayment of the same. The finding of the High Court that the case of the appellant-complainant became highly doubtful or not beyond reasonable doubt is patently erroneous for the reasons discussed above."
It was held by Hon'ble Supreme Court of India in case titled as "Kalamani Tex & Another Vs. P. Balasubramanian", {(2021) 5 SCC 283} that :-
"........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 Digitally signed by VIJAY SHANKAR VIJAY Date:
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upon him.......".
The appellant/ accused at the time of framing notice u/s. 251 Cr.P.C. had stated that she had taken a loan of Rs.50,000/- from the complainant and at that time, she had taken the cheque in question as security. Appellant/ accused in her statement under section 313 Cr.P.C. r/w section 281 Cr.P.C. had stated that she had given the cheque in question as blank signed as security. The accused in her evidence by way of affidavit had stated that the cheque was issued to the complainant as security. The appellant/accused at the time of framing notice u/s 251 Cr.P.C. stated that cheque in question bears her signature but other particulars were not filled by her. The appellant has not disputed her signature on the cheque Ex.CW-1/1. In view of the law laid down in Bir Singh case (Supra), it is clear that that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. The appellant/ accused had failed to adduce any specific evidence to rebut the presumption in this regard. In view of the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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same, the contention of the appellant in this regard is not tenable.
(b) It is the contention of the appellant that the complainant had not lead any evidence regarding her financial capacity and source of fund to advance the loan and in view of the same, impugned judgment and order on sentence are liable to be set-aside.
Complainant/ CW-1 in her cross-examination had deposed that the loan was given from cash lying at her home and the same was from her rental income. The source of fund to advance the loan had been disclosed by the complainant/ CW-1 in her cross-examination.
In the ITR Ex.CW-1/13 of the complainant for the assessment year 2013-2014, the rental income of the complainant is shown as Rs.2,16,000/- and in the ITR Ex.CW-1/14 of the complainant for the assessment year 2014-2015, the rental income of the complainant is shown as Rs.3,57,000/-. Rent agreements Ex.CW-1/9 to Ex.CW-1/12 were proved on record by the complainant. No specific evidence had been led by the appellant/ Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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accused to rebut the aforesaid documentary evidence of the complainant as well as the case of the complainant and in support of her contentions in this regard. The source of fund to advance the loan and her financial capacity had been proved on record by the complainant.
Even otherwise, it was held by Hon'ble Supreme Court of India in case titled as " Rohit Bhai Jivanlal Patel Vs. State of Gujarat & Another", {(2019) 18 SCC 106} that:-
"In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the accused-appellant. The aspect relevant for consideration had been as to whether the accused-appellant has brought on record such facts/material/circumstances which could be of a reasonably probable defence."Digitally signed by VIJAY SHANKAR
VIJAY Date:
SHANKAR 2024.03.28
17:10:53
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Simmi Anand Vs. State & Anr.
It was held by Hon'ble Supreme Court of India in case titled as " Tedhi Singh Vs. Narayan Dass Mahant", {(2022) SCC Online SC 302} that:-
"The Trial Court and the First Appellate Court have noted that in the case under Section 138 of the N. I. Act the complainant need not show in the first instance that he had the capacity. The proceedings under Section 138 of the N. I. Act is not a civil suit. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent the Courts in our view were right in holding on those lines......."
Hence, financial capacity and source of funds were not required to be proved by the complainant. In view of the law laid down in Rohit Bhai Jivanlal Patel and Tedhi Singh cases (Supra), the contention of the appellant in this regard is not tenable.
(c) It is the contention of the appellant that the complainant had not mentioned the alleged loan amount in her ITRs and same shows that no loan was given by the complainant Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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to the appellant/accused and in view of the same, impugned judgment and order on sentence are liable to be set-aside.
It is well settled law that merely because the loan amount is not shown in the Income Tax Return, in every case, one cannot jump to the conclusion that the presumption u/s. 139 N.I. Act stands rebutted. Failure to show the loan amount in Income Tax Return cannot always said to be fatal to the case.
It was held by Hon'ble Delhi High Court in case titled as "Lekh Raj Sharma Vs. Yash Pal Gupta.", {Crl. LP 567/2014 decided on 30/06/2015 } that:-
"The finding that, as the amount of loan disbursed to the respondent was not shown in the balance sheet and ITR, the appellant could not be said to have proved its case beyond reasonable doubt, is also erroneous......"
It was held by Hon'ble Bombay High Court in case titled as "Krishna P. Morajkar Vs. Joe Ferrao & Anr.", {2013 ALL MR (Cri) 4129} that:-
".......The entire scheme of the Income Tax Act is for ensuring that all amounts are accounted for. If some amounts are not accounted for, the person would be visited with the penalty or at times even Digitally signed by VIJAY SHANKAR VIJAY Date: SHANKAR 2024.03.28 17:11:06 +0530 CA No. 280/2023 Page No.29/43 Simmi Anand Vs. State & Anr.
prosecution under the Income Tax Act, but it does not mean that the borrower can refuse to pay the amount which he has borrowed simply, because there is some infraction of the provisions of the Income Tax Act. Infraction of provisions of Income Tax Act would be a matter between the revenue and the defaulter and advantage thereof cannot be taken by the borrower. ......."
Non-mentioning of the loan amount in the ITRs may entail consequences under Income Tax Act but it does not mean that the borrower can refuse to pay the amount which he/she has borrowed simply, because there are some fractions in provisions of the Income Tax Act. The appellant/ accused cannot escape from her legal liability to pay the loan amount only on the ground that the complainant had not mentioned the loan amount in her ITRs. In view of the law laid down in Lekh Raj Sharma and Krishna P. Morajkar cases (Supra), the contention of the appellant in this regard is not tenable.
(d) It is the contention of the appellant that the complainant/ respondent No.2 has failed to prove or place on record any document to show that the appellant/ accused had Digitally signed by VIJAY SHANKAR VIJAY Date:
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taken the loan of Rs.3,00,000/- from the complainant and in view of the same, impugned judgment and order on sentence are liable to be set-aside. It is not the case of the complainant that any written loan agreement in respect of the loan amount of Rs.3,00,000/- was executed between her and the accused. Even otherwise, the complainant had duly proved on record the cheque Ex.CW-1/1 amounting to Rs.3,00,000/- issued by the accused in favour of the complainant. In view of the same, the contention of the appellant in this regard is not tenable.
(e) It is the contention of the appellant that the complainant in her legal notice, complaint u/s. 138 N.I. Act and evidence by way of affidavit did not mention that loan of Rs.3,00,000/- was paid/disbursed to the appellant/ accused and in view of the same, impugned judgment and order on sentence are liable to be set-aside. The complainant in her complaint u/s. 138 N.I. Act had stated that in the first week of August, 2014, the accused had approached the complainant for taking friendly loan of Rs.3,00,000/- and the accused had issued the cheque bearing Digitally signed by VIJAY SHANKAR VIJAY Date:
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No.079082 dated 10/02/2017 amounting to Rs.3,00,000/- and the accused had issued the aforesaid cheque in discharge of her legally enforceable liability towards the complainant and to pay her legal debt. The complainant/ CW-1 in her cross-examination had deposed that accused had taken a loan of Rs.3,00,000/- in cash from her in the first week of August, 2014 and the loan was repayable in August, 2016 and the cheque was handed over to her in February, 2017.
The appellant/ accused at the time of framing notice u/s. 251 Cr.P.C. stated that she had taken a loan of Rs.50,000/-
from the complainant and at that time she had taken the cheque in question as security. The appellant/ accused in her statement u/s. 313 r/w section 281 Cr.P.C. stated that she had taken a loan of Rs.50,000/- at the rate of interest of 10% per month from the complainant in the year 2013-2014 and she had given the cheque in question as blank signed as security. Factum regarding taking of loan from the complainant is admitted by the appellant/ accused. The appellant/accused has only disputed the loan amount of Rs.3,00,000/-. The complainant had duly proved on record the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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cheque Ex.CW-1/1 amounting to Rs.3,00,000/- issued by the accused in favour of the complainant. No specific evidence had been led by the appellant/ accused to rebut the presumption and the case of the complainant. In view of the same, the contention of the appellant in this regard is not tenable.
(f) It is the contention of the appellant that the appellant/ accused had taken only the loan of Rs.50,000/- and she paid the much excess amount of Rs.87,000/- to the complainant but the complainant had misused the security blank signed cheque of the accused, which she had given to the complainant at the time of taking the loan of Rs.50,000/- and in view of the same, impugned judgment and order on sentence are liable to be set-aside. No documentary evidence had been placed/ proved on record by the appellant/ accused to show that only the loan of Rs.50,000/- was given by the complainant to the accused. The appellant/ accused had also not placed/ proved on record any documentary evidence to show that the appellant/ accused had paid the amount of Rs.87,000/- to the complainant. On other other hand, the Digitally signed by VIJAY SHANKAR VIJAY Date: SHANKAR 2024.03.28 17:11:31 +0530 CA No. 280/2023 Page No.33/43 Simmi Anand Vs. State & Anr.
complainant had duly proved on record the cheque Ex.CW-1/1 amounting to Rs.3,00,000/- issued by the accused in favour of the complainant. In view of the same, the contention of the appellant in this regard is not tenable.
(g) It is the contention of the appellant that date of cheque, name of the drawer and amount in numeric digits as well as English language are not in the handwriting of the appellant/ accused and the same were manipulated, manufactured and filled up later on and the cheque in question was handed over by the accused to the complainant as blank security cheque, which only bears the signature of the accused and as such blank cheque issued without mentioning amount, date and drawer's name is not a cheque or bill of exchange as per N.I. Act. and in view of the same, impugned judgment and order on sentence are liable to be set-aside.
The appellant has failed to clarify as to how the cheque Ex.CW-1/1 is not a cheque as per provisions of N.I. Act. The appellant/ accused had failed to adduce any specific evidence Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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to show that the aforesaid particulars in the cheque Ex.CW-1/1 were manipulated. In view of the law laid down in Bir Singh case (Supra), the contention of the appellant in this regard is not tenable.
(h) It is the contention of the appellant that the complainant and her son are indulged in money lending business without having any money lending license and the complainant and her son in collusion and connivance with each other used to misuse the cheque taken by them from the innocent and needy people at the time of small financial loan on heavy interest and in view of the same, impugned judgment and order on sentence are liable to be set-aside. It is the case of the complainant that she had given a friendly loan of Rs.3,00,000/- to the accused. No specific evidence had been led nor any document placed/ proved on record by the appellant/ accused to show that the complainant and her son were indulged in the money lending business without any valid money lending license. In view of the same, the contention of the appellant in this regard is not tenable. Digitally signed by VIJAY SHANKAR
VIJAY Date: SHANKAR 2024.03.28 17:11:45 +0530 CA No. 280/2023 Page No.35/43 Simmi Anand Vs. State & Anr.
(i) It is the contention of the appellant that there are material contradictions and inconsistencies in the testimony of complainant/CW-1.
It was held by Hon'ble Supreme Court of India in case titled as "Sunil Kumar Sambhudayal Gupta Vs. State of Maharashtra", { (2010) 13 SCC 657} that:-
"While appreciating the evidence, the court has to take into consideration whether the contradictions/ omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons."
In the testimony of complainant/ CW-1, no material contradiction and inconsistency has been surfaced except some minor ones which are but natural. Hence, the contention of the appellant in this regard is not tenable.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
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Simmi Anand Vs. State & Anr.
(j) It is the contention of the appellant that in view of the
grounds mentioned in the present appeal, the appellant/accused had been successful to rebut the presumption u/s. 118 and 139 N.I. Act.
It is well settled law that the presumptions u/s. 118 and 139 of the N.I. Act are rebuttable and burden is on the accused to rebut the presumption which can be discharged by the accused by preponderance of probabilities. It is well settled law that presumptions u/s. 118 and 139 of the N.I. Act have to be rebutted by cogent evidence and mere plausible explanation is not enough.
It was held by Hon'ble Supreme Court of India in case titled as " Kumar Exports Vs. Sharma Carpets", {(2009) 2 SCC 513} that:-
" 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 Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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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.........."
It was held by Hon'ble Supreme Court of India in case titled as "Rangappa Vs. Sri Mohan", {(2010) 11 SCC 441} that:-
"Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that Digitally signed by VIJAY SHANKAR VIJAY Date:
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the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
In view of the aforesaid discussion in preceding paras, it is clear that the appellant/accused had failed to rebut the presumption u/s. 118 and 139 N.I. Act. The appellant/ accused had failed to raise any probable defence. In view of the same, the contention of the appellant in this regard is not tenable. Digitally signed by VIJAY SHANKAR
VIJAY Date:
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13. It is well settled law that the Appellate Court will usually not interfere with the exercise of discretion by the Trial Court and the Appellate Court will interfere only if it is found that the discretion has been exercised arbitrarily, capriciously and perversely. The first Appellate Court is required to examine the case of the appellant with reference to the grounds urged in the appeal.
It was held by Hon'ble Supreme Court of India in case titled as " Rajan Vs. State of MP", {(1999) 6 SCC 29} that:-
"Appellate Court's jurisdiction is co-extensive with that of the trial Court in the matter of assessment, appraisal and appreciation of the evidence and also to determine the disputed issues.".
14. Service of legal notice Ex.CW-1/3 upon the appellant/ accused is not disputed. The appellant/ accused in her statement under section 313 Cr.P.C. r/w section 281 Cr.P.C. had admitted the factum regarding service of the legal notice Ex.CW-1/3.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
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Simmi Anand Vs. State & Anr.
15. The complainant in her complaint and in her testimony had categorically, elaborately and graphically described as to how offence u/s 138 N.I. Act had been committed by the appellant/accused. The complainant/CW-1 had duly proved on record cheque bearing No.079082 dated 10/02/2017 Ex.CW-1/1, returning memo dated 16/02/2017 Ex.CW-1/2, copy of legal notice dated 27/02/2017 Ex.CW-1/3, postal receipt of registered AD Ex.CW-1/4, postal receipt of speed post Ex.CW-1/5, tracking reports Ex.CW-1/6 & Ex.CW-1/7, complaint Ex.CW-1/8, rent agreement dated 19/06/2013 Ex.CW-1/9, rent agreement dated 22/07/2013 Ex.CW-1/10, rent agreement dated 25/07/2013 Ex.CW-1/11, rent agreement dated 28/07/2014 Ex.CW-1/12 and ITRs of the complainant Ex.CW-1/13 & Ex.CW-1/14.
In view of the aforesaid discussion, it is clear that the appellant/ accused had failed to raise any probable defence. Appellant/accused had failed to rebut the presumption u/s. 118 and 139 N.I.Act. On the other hand, the case of the complainant was duly corroborated by her testimony and documentary Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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evidence.
16. All the points and contentions of both the parties were duly dealt with by the Ld. Trial Court in the impugned judgment. Ld. Trial Court rightly held that the complainant had successfully proved all essential ingredients of Section 138 N.I. Act. There is nothing on the record to show that the Ld. Trial Court has exercised its discretion arbitrarily, capriciously and perversely. There is no illegality, impropriety and infirmity in the impugned judgment and order on sentence passed by the Ld. Trial Court.
Sentence and fine/ compensation amount awarded by the Ld. Trial Court are not excessive and the same are reasonable and justified.
17. Applying priori and posteriori reasonings and the aforesaid case laws, this Court is held that there is no illegality, impropriety and infirmity in the impugned judgment and order on sentence passed by the Ld. Trial Court. Impugned judgment dated 26/06/2023 and order on sentence dated 10/07/2023 passed Digitally signed by VIJAY SHANKAR VIJAY Date:
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by the Ld. Trial Court are upheld. Accordingly, the present appeal of the appellant is dismissed. No order as to costs.
Appellant be taken into custody to serve the sentence awarded by the Ld. Trial Court. Benefit of Section 428 Cr.P.C. be given to the appellant.
Copy of this judgment supplied to the appellant free of cost. Trial Court Record be sent back alongwith the copy of this judgment. Appeal file be consigned to record room after due compliance. Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2024.03.28 Announced in the open Court 17:12:37 +0530 on 28/03/2024 (VIJAY SHANKAR) ASJ-04 (West) Tis Hazari Courts, Delhi CA No. 280/2023 Page No.43/43