Delhi District Court
Sh. Sanjay Vasudeva vs Sh. Amish Jain on 15 December, 2018
IN THE COURT OF Dr. KAMINI LAU: SPECIAL JUDGE
(P.C. ACT) CBI01 (CENTRAL DISTRICT):
TIS HAZARI COURTS: DELHI
Crl. Appeal No. 52/2018
Registration No. 365/2018
CNR No. DLCT01012524/2018
Sh. Sanjay Vasudeva
Son of Late Sh. G.L. Vasudeva
R/o 673, Noor Building,
Main Bazar Ghanta Ghar
Delhi110007.
At Present: (In J.C. in Tihar Jail)
............Appellant
Versus
Sh. Amish Jain
Prop of M/s. Electrolite Fiting and Equipment
2013/2, Katra Lachchu Singh,
Bhagirath Palace, Delhi110006.
............Respondent
Date of Institution: 27.09.2018
Judgment Reserved on: 13.12.2018
Judgment Pronounced on: 15.12.2018
JUDGMENT:(Oral) (1) This Criminal Appeal impugns the judgment dated 16.07.2018 and order on sentence 06.08.2018 passed by the Ld. Trial Court in case bearing C.C. No. 520758/2016 titled as "Amish Jain Vs. Sh. Sanjay Vasudeva" thereby sentencing the appellant to undergo Simple Imprisonment for a period of Twelve Months and to pay Sanjay Vasudeva vs. Amish Jain (Crl. Appeal No.52/2018), Judgment dated 15.12.2018 Page No. 1 of 11 compensation for a sum of Rs.4,26,000/ to the complainant / respondent within 30 days and in default of payment of compensation, the convict / appellant was directed to undergo further Simple Imprisonment for a period of Six Months for the offence under Section 138 of Negotiable Instrument Act.
(2) The brief facts of the case are that a complaint was filed by the complainant/ respondent Amish Jain alleging that the accused i.e. Appellant Sanjay Vasudev had purchased electric goods on credit from him vide various bills and the accused had issued cheques in favour of the complainant towards payments of the same. When the cheques were presented for encashment, the same were returned unpaid with the remarks "Funds Insufficient" . Thereafter the complainant/ accused had issued a legal demand notice dated 13.04.2012 despite which the accused had not make the payment of the goods and hence, a complaint under Section 138 NI Act was filed by the complainant/ respondent before the Ld. Trial Court.
(3) The Ld. Trial Court upon consideration of evidence and the material on record, convicted the appellant for the offence under Section 138 of NI Act and vide impugned order dated 16.07.2018 sentenced the appellant to undergo Rigorous Imprisonment for a period of Twelve Months and to pay compensation for a sum of Rs.4,26,000/ to the complainant / respondent within 30 days and in default of payment of compensation, the convict / appellant was directed to undergo further Rigorous Imprisonment for a period of Six Months. Being aggrieved by the same, the appellant has preferred the Sanjay Vasudeva vs. Amish Jain (Crl. Appeal No.52/2018), Judgment dated 15.12.2018 Page No. 2 of 11 present appeal on the following grounds: That the appellant has paid the part payment against the goods purchased by the appellant.
That at the time of purchasing the goods the appellant had given the cheques in question as security to the respondent. That the legal notice under Section 138 N.I. Act was not served upon the appellant.
That the offence under Section 138 N.I. Act is not made out against the present appellant as the appellant has made the part payment to the respondent and due to ill health and financial problems is unable to pay the remaining amount to the respondent.
That the respondent has admitted the part payment made by the appellant.
That the appellant is in Judicial Custody in the present case as well as in other several cases since October 2017 and cannot make the payment of compensation to the respondent. That the appellant has already been convicted in other cases Under Section 138 of N.I. Act and cannot make the payment of compensation to the respondent.
That the order passed by the Ld. M.M. is against the natural justice and excessive.
(4) Pursuant to the filing of the appeal, a notice was issued to the respondent. However, none had appeared on behalf of the respondent. The appellant was given an opportunity to file his written memorandum Sanjay Vasudeva vs. Amish Jain (Crl. Appeal No.52/2018), Judgment dated 15.12.2018 Page No. 3 of 11 of arguments despite which no written memorandum of arguments have not been filed.
(5) I have gone through the Trial Court Record and considered the grounds raised in the appeal. At the very Outset I may observe that the complainant/ respondent Amish Jain has examined himself as his sole witness as CW1 before the Ld. Trial Court and has proved the following documents:
Cheques issued by the appellant which are Ex.CW1/1 to Ex.CW1/19.
Returning memos dated 23.03.2012 which are Ex.CW1/20 to Ex.CW1/35.
The various bills which are collectively Ex.CW1/39.
Legal notice dated 13.04.2012 which is Ex.CW1/40, its postal receipt are Ex.CW1/41 and copy of the delivery report which is Ex.CW1/42.
(6) The entire evidence of the complainant/ respondent has gone unrebutted in view of the fact that the appellant/ accused before the Ld. Trial Court has not crossexamined CW1 Amish Jain. In fact, perusal of the Trial Court record reveals that notice under Section 251 Cr.P.C.
was served upon the appellant on 12.09.2014 and an opportunity was given to him to crossexamine CW1 Amish Jain but the appellant absconded and his presence could only be secured only after execution of process under Section 82 Cr.P.C. and hence, keeping in view the conduct of the appellant who neither crossexamined the respondent nor adhered to the settlement, the opportunity for crossexamination of Sanjay Vasudeva vs. Amish Jain (Crl. Appeal No.52/2018), Judgment dated 15.12.2018 Page No. 4 of 11 CW1 was closed. In this regard, I may observe that in the Negotiable Instruments Act, there is a presumption in favour of holder. The provisions of Section 139 of N. I. Act, are as under: "..... It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability....."
(7) Further, the provisions of Section 118 (a) of The Negotiable Instruments Act, 1881 provides as under:
Section 118. Presumption as to negotiable instruments. Until the contrary is proved, the following presumption shall be made:
(a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, was indorsed, negotiated or transferred for consideration.
(8) In the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde reported in (2008) 4 SCC 54, the Hon'ble Supreme Court of India has observed and I quote as under:
"......32. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of the accused and that of the prosecution in a criminal case is different.....
Sanjay Vasudeva vs. Amish Jain (Crl. Appeal No.52/2018), Judgment dated 15.12.2018 Page No. 5 of 11
34. Furthermore, whereas prosecution must prove the guilty of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of the accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies......"
(9) Also, in the case of Mallavarapu Kasivisweswara Rao Vs. Thadikonda Ramulu Firm reported in (2008) 7 SCC 655, the Hon'ble Supreme Court of India has held as under:
".......17. Under Section 118 (a) of the Negotiable Instruments Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the nonexistence of consideration by brining on record such facts and circumstances which would lead the court to believe the nonexistence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal....."
(10) Again, in the case of Bharat Barrel & Drum Mfg. Co. V. Amin Chand Payrelal reported in (1999) 3 SCC 35, it was observed by the Hon'ble Supreme Court had observed and I quote: "....... 12. Upon consideration of various judgments as noted hereinabove, the position of Sanjay Vasudeva vs. Amish Jain (Crl. Appeal No.52/2018), Judgment dated 15.12.2018 Page No. 6 of 11 law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118 (a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the nonexistence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under the law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118 (a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit Sanjay Vasudeva vs. Amish Jain (Crl. Appeal No.52/2018), Judgment dated 15.12.2018 Page No. 7 of 11 of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist....."
(11) Also, in the case of Rangappa Vs. Sri Mohan reported in (2010) 11 SCC 441 the Hon'ble Supreme Court while discussing above said provisions, judgments and other case law on the point, observed and I quote as under:
"...... 26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To the extent, the impugned observations in Krishna Janardhan Bhat may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.
27. Section 139 of the Act is an example of a reverse onus clause that has been included in Sanjay Vasudeva vs. Amish Jain (Crl. Appeal No.52/2018), Judgment dated 15.12.2018 Page No. 8 of 11 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 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 defendantaccused cannot be expected to discharge an unduly high standard or proof.
28. 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 doubt 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......."
Sanjay Vasudeva vs. Amish Jain (Crl. Appeal No.52/2018), Judgment dated 15.12.2018 Page No. 9 of 11 (12) Hence, it is writ large that there is initial presumption of legally enforceable debt or liability against the accused, but the same is rebutable. The standard of proof for rebuttal is preponderance of probabilities. Accused can lead evidence in defence, even can rely on materials submitted by complainant and can rely upon circumstances also to show nonexistence of consideration or it being improbable and need not adduce evidence of his/her/its own for the same. Therefore, in the light of the above, a valid presumption has been raised against the appellant which cannot be faulted.
(13) Secondly, the appellant has not denied his signatures on the cheques Ex.CW1/1 to Ex.CW1/19 and hence, there is a presumption under Section 118 and 139 of Negotiable Instruments Act in favour of the complainant/ respondent. Therefore, I hold that the cheques were issued towards legally enforceable liability. (14) Thirdly, the aspect of dishonour of cheques also stands established from the various Return Memos which are Ex.CW1/20 to Ex.CW1/35.
(15) Fourthly, the service of legal notice dated 13.04.2012 which is Ex.CW1/40 has been proved to be dispatched to the appellant vide Speed Post receipts Ex.CW1/41 and the delivery receipt in this regard is Ex.CW1/42. The appellant/ accused has not disputed the correctness of the address mentioned in the legal notice. (16) Lastly, I may observe that the appellant before this Court who is in Judicial Custody is facing trial in more than 96 cases of similar nature. He was called to the Court and accorded a hearing, Sanjay Vasudeva vs. Amish Jain (Crl. Appeal No.52/2018), Judgment dated 15.12.2018 Page No. 10 of 11 wherein he duly admitted his liability and informed this Court that the total cheque amount in the present case was Rs.3,90,000/ out of which he has already paid a sum of Rs.3,34,000/ and only a sum of Rs.56,000/ remains due which he is unable to pay. (17) This being the background, I find no illegality in the impugned judgment dated 16.07.2018 and order on sentence dated 06.08.2018 passed by the Ld. Trial Court. The appeal is hereby Dismissed being devoid of merits.
(18) Trial Court Record be sent back along with the copy of this order. One copy is directed to be sent to the appellant Sanjay Vasudeva through the Superintendent Jail concerned. Digitally signed by KAMINI (19) Appeal file be consigned to Record Room. KAMINI LAU LAU Date:
2018.12.15 17:05:25 +0530 Announced in the open Court (Dr. KAMINI LAU) Dated: 15.12.2018 Spl. Judge (P.C. Act) CBI01 Central District, Tis Hazari Courts, Delhi Sanjay Vasudeva vs. Amish Jain (Crl. Appeal No.52/2018), Judgment dated 15.12.2018 Page No. 11 of 11