Delhi District Court
Rekha Jha vs Ravi Dutt Gaur on 19 April, 2023
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-06, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL No. 239/2022 (RBT 113/22)
IN THE MATTER OF:
Rekha Jha
W/o Amrender Jha
R/o B-102/2, UGF, Durga Vihar,
Devli Village, New Delhi-110062
........Appellant
Versus
Ravi Dutt Gaur
S/o Late Sh. Kashi Ram
R/o H.No. 177, Main Road Deoli,
New Delhi-110080
........Respondent
Instituted on : 01.10.2022
Reserved on : 16.03.2023
Pronounced on : 19.04.2023
Crl Rev. No. 239/2022 Rekha Jha Vs. Ravi Dutt Gaur Page No. 1 / 21
JUDGMENT
1. Vide this judgment, I shall dispose of appeal U/s 374(3) Cr.P.C preferred by Ms. Rekha Jha against the judgment dated 10.06.2022 and order on sentence dated 02.09.2022 passed by Ld. MM-NI Act/Digital Court-02/South in complaint case no. 17938/2018 titled as Ravi Dutt Gaur Vs. Rekha Jha whereby she was convicted for the offence under section 138 Negotiable Instruments Act (hereinafter referred to as 'NI Act') and was sentenced to pay fine of Rs.3,10,000/- payable to the complainant as compensation. In default of payment of same, she was directed to undergo simple imprisonment for a period of one month.
2. Briefly stated the facts as per record are as under:-
A complaint case for the offence U/s 138 NI Act was filed by the respondent herein against the appellant before Ld. Trial Court. It was alleged that the respondent was doing his own private business and appellant was also doing the business of toys etc. They both were having friendly relations since last many years. The appellant approached the respondent in the month of February 2017 to borrow the amount of Rs. 1 lac for her business and the respondent paid said amount through a cheque bearing No. 891558 dated 13.02.2017. It is further stated in the complaint that appellant borrowed another sum of Rs. 1,50,000/- in cash on 02.07.2018 from him to clear her daughter's bank loan in order to apply a fresh loan. Thereafter, appellant issued a post dated cheque bearing no. 861203 dated 03.09.2018 amounting to Rs.2.5 lacs drawn on Punjab National Bank, Mehrauli Road, Hauz Khas, New Delhi-110014. When the cheque was presented for Crl Rev. No. 239/2022 Rekha Jha Vs. Ravi Dutt Gaur Page No. 2 / 21 encashment by the respondent with his banker, same was returned dishonoured vide return memo dated 17.10.2018 with remarks "Account closed". Thereafter, a legal demand notice was sent to the appellant on 13.11.2018, however, no payment was made despite service.
3. Record transpires that post summoning and completion of necessary formalities, Ld Trial Court served notice u/s 251 CrPC upon the appellant on 30.03.2019 to which she pleaded not guilty and claimed trial. The plea of defence as taken by her at that stage shall be discussed in detail later on.
3A. Record further transpires that in post summoning evidence, respondent/complainant deposed on the line of his complaint and relied upon following documents :-
a) Evidence by way of affidavit Ex.CW1/1,
b) Copy of bank statement Ex. CW1/A,
c) Cheque in question Ex. CW1/B,
c) Bank return memo dated 17.10.2018 Ex.CW1/C,
d) Legal demand notice dated 13.11.2018 Ex.CW1/ D,
e) Postal receipts Ex.CW1/E,
f) Tracking report Ex.CW1/F,
g) The complaint Ex.CW1/G. 3B. Trial Court record further reveals that in her statement u/s 313 Crl Rev. No. 239/2022 Rekha Jha Vs. Ravi Dutt Gaur Page No. 3 / 21 CrPC, the appellant/accused claimed to be falsely implicated and stated as under :-
"I never borrowed a sum of Rs. 01 lakh from the complainant. The complainant though paid me Rs. 01 lakh but same was for the purpose of putting that amount in the committee being run by the complainant. It is further incorrect that I borrowed Rs. 1.15 lacs in cash on 02.07.2018. The cheque in question was handed over to complainant at the time when he came to my house for handing over a cheque of Rs 01 lakhs as above mentioned, the same was given as a blank signed cheque as I have not filled the particular therein. The cheque was given to the complainant at the instance of security. It is correct that when the cheque in question was presented for encashment in the bank, the same was dishonoured due to reason "account close" and I have already informed the complainant regarding the same, even after that the complainant deliberately presented the cheque. I did not receive the legal demand notice. The said Rs. 01 lakh which was paid by complainant through cheque was given to me as committee amount and not as loan but because I had not paid the installments amount for that purpose and therefore, my husband started paying installment of Rs. 5,000/- to the complainant till August 2018 which amounted to Rs. 40,000/- for the said committee. Thereafter due to certain difficulties we could not pay the remaining installments and I sought some time for the complainant. After some time, a loan was sanctioned in the name of my husband and he paid the complainant Rs. 60,000/- via cheque drawn on Bandhan Bank. However, the complainant asked me to pay the amount of Rs. 60,000/- in cash and take back the cheque. My husband did the same ie Crl Rev. No. 239/2022 Rekha Jha Vs. Ravi Dutt Gaur Page No. 4 / 21 he paid the complainant Rs. 60,000/- in cash and the complainant returned the said cheque. However, the complainant did not return the previous cheque which was given at the time when the cheque of Rs. 01 lakh was given to me by the complainant. Regarding this blank signed cheque which was given previously, the complainant told me that the payment of Rs. 40,000/- made by us by way of interest and therefore, when I will pay him the principle amount of Rs. 40,000/- only then he would hand over the said blank cheque to me. I owe no liability towards the complainant."
3C. The appellant examined herself as a witness (DW-1) in her defence u/s 315 Cr.P.C. Her husband Mr. Amrender Jha was examined as DW-2. Both the witnesses deposed in detail that the cheque in question was not issued against any liability as alleged.
4. Ld Trial Court vide impugned judgment observed that appellant has failed to rebut the mandatory presumption under section 118(a) and 139 NI Act and while acting upon the testimony of CW-1 and relying upon the other material available on record, held that the ingredients of section 138 NI Act stand fully proved in the instant case. Ld. Trial court found the appellant/accused guilty of offence under section 138 NI Act and convicted her vide impugned judgment which is under challenged in the present appeal.
5. Arguments heard.
It has been argued by Ld. Counsel for appellant that Ld. Trial Crl Rev. No. 239/2022 Rekha Jha Vs. Ravi Dutt Gaur Page No. 5 / 21 Court has wrongly convicted the appellant herein as the material on record and the law applicable thereupon was not properly appreciated. It was argued that the legal demand notice was not received by the appellant which is clear from the tracking report showing that the consignment was delivered at Sangam Vihar SO. It was further argued that the cheque in question was given to the respondent as security when the committee amount of Rs. 1 lac was given by him to her husband in February 2017. It was argued that the amount of Rs. 1 lac was not advanced to the appellant as loan as alleged rather same was given to her husband who was contributing in the committee of Rs. 1 lac being run by the respondent. It was further argued that the respondent has no where written in the complaint as to for how much time the amount of Rs.1 lac was advanced to the appellant and in his cross examination, he stated this period has 2-3 months. Also, it is highly unbelievable that a person whose initial loan of Rs. 1 lac was not repaid after the agreed period of 2-3 months will advance another sum of Rs. 1.5 lacs in cash. It was stated that the respondent has created a false story of advancing a sum of Rs. 2.5 lacs to the appellant as loan. It was submitted that no proof of payment of Rs.1.5 lacs in cash to the appellant has come on record and the respondent was not having capacity to pay the same. Further, the cheque in question pertains to the series of a cheque book which was already over before the same was allegedly issued to the respondent. She has prayed for setting aside of the judgment of Ld. Trial Court and acquittal of the appellant.
6. No oral arguments were advanced on behalf of respondent.
Crl Rev. No. 239/2022 Rekha Jha Vs. Ravi Dutt Gaur Page No. 6 / 21Written submissions were filed as per which there is no illegality in the impugned judgment. He has prayed for dismissal of appeal.
7. I have considered the submissions from both the sides alongwith record.
As mentioned earlier, Ld. Trial Court convicted the appellant while holding that she has failed to rebut the presumptions in favour of the respondent. Said presumptions are as under :-
118. Presumption as to negotiable instruments: Until the contrary is proved, the following presumptions 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, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;
b) as to date-- that every negotiable instrument bearing a date was made or drawn on such date;
c) as to time of acceptance--that every accepted bill of exhange was accepted within a reasonable time after its date and before its maturity;..........
139. Presumption in favor of holder: 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, or any debt or other liability.
Crl Rev. No. 239/2022 Rekha Jha Vs. Ravi Dutt Gaur Page No. 7 / 218. Regarding these presumptions, Hon'ble Supreme Court in Basalingappa Vs. Mudibasappa, Crl. Appeal No.636/2019 held as under:-
23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:-
(i) Once the execution of cheque is admitted presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open from the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to support his defence.
9. The crux of the case of the respondent before Ld. Trial Court Crl Rev. No. 239/2022 Rekha Jha Vs. Ravi Dutt Gaur Page No. 8 / 21 and before this Court is that the appellant had approached him in February 2017 for a loan of Rs. 1 lac for her business of shop of toys etc. whereupon payment of Rs. 1 lac was made to her vide cheque bearing no. 8915581 dated 13.02.2017. Further, a sum of Rs. 1.5 lacs in cash was advanced to her on 02.07.2018 to clear her daughter's bank loan to apply a fresh loan to clear his outstanding amount. The cheque in question was allegedly issued to discharge the said liability of Rs. 2.5 lacs which was dishonoured on presentation for encashment. The defences taken by appellant at different stages of trial are being discussed below for proper appreciation:-
(i) At the stage of notice U/s 251 Cr.P.C:-
At this stage, it was stated by her that her husband has started investing in a committee of Rs. 1 lac being run by the respondent in January 2016 and he was allotted the committee through chit in February 2016. The respondent had given the said amount through a cheque drawn from his personal account and same was encashed in her account. The cheque in question was taken from her husband in blank bearing her signature as security. Further, they were paying monthly installment of Rs. 5,000/- in the committee and this way they paid Rs. 40,000/- however, their shop was closed thereafter. Thereupon the respondent was requested to wait for sometime and he was assured that they will clear the entire payment after getting loan from the bank. The loan was so advanced to her husband by Bandhan Bank in 2018 whereupon he paid Rs. 60,000/- to him at his house and demanded back her blank signed cheque but the respondent stated that the Crl Rev. No. 239/2022 Rekha Jha Vs. Ravi Dutt Gaur Page No. 9 / 21 previous amount of Rs. 40,000/- has been adjusted against interest and demanded further sum of Rs.40,000/-. She stated that the cheque in question was misused by the respondent after arbitrarily filling the particulars. She has also stated that she had not received the legal notice and that her husband has already lodged a complaint at PS Neb Sarai. She denied her liability to pay the cheque amount.
(ii) At the stage of cross-examination of respondent:-
The cross-examination of respondent is brief. During his cross- examination, suggestions were given to him to the effect that the loan amount of Rs. 1 lac given to the appellant was of the committee and that no loan of Rs. 1.5 lacs was given to her. He was also given a suggestion to the effect that the previous loan of Rs. 1 lac was already repaid in 2 parts i.e., by 8 installments amounting to Rs. 40,000/- in total for the committee and Rs. 60,000/- in cash after loan approval. Suggestions were also put to him to the effect that he has misused the cheque in question and that the appellant has no liability to pay him anything. He had denied all the suggestions.
(iii) At the stage of statement U/s 313/281 Cr.P.C:-
At this stage, the defence stated by the appellant was more or less on the lines of defence stated by her at the stage of framing of notice U/s 251 Cr.P.C. Only material addition to said statement was that she stated about her husband having paid the respondent a sum of Rs. 60,000/- via chque drawn on Bandhan Bank however, subsequently he paid the same in cash and took the cheque back on being asked to do so Crl Rev. No. 239/2022 Rekha Jha Vs. Ravi Dutt Gaur Page No. 10 / 21 by the respondent.
(iv) At the stage of defence evidence:-
At this stage, apart from the defence already taken, she added that she had filed a police complaint regarding loss of her cheque book and ATM etc. when they were shifting after vacating the shop and that the cheque in question was from the cheque book which got finished in February 2017 whereupon the new cheque book was issued to her. She relied upon documents i.e. cheque-book maintenance Ex.DW1/A, her bank account statement Ex.DW1/B, police complaint regarding misplacement of cheque-book, ATM etc. ExDW1/C (OSR). The husband of the appellant was also examined as a witness in her defence whereupon he placed on record a diary being maintained by him Ex.DW2/A (OSR) allegedly showing the payment of Rs. 5,000/- per month being made by him to the respondent in lieu of committee.
10. From the above, it is clear that there is no dispute to the signature of the appellant on the cheque in question or its dishonour on presentation for encashment. The appellant has argued that she did not receive the legal demand notice so offence u/s 138 NI Act has not been made out. The respondent has submitted that legal notice was duly served. As per him, the legal notice was sent to the appellant by way of registered post (postal receipt Ex.CW1/E and tracking report Ex.CW1/F are on record). It appears that the envelope containing the legal notice so sent, was not received back by the respondent. Appellant Crl Rev. No. 239/2022 Rekha Jha Vs. Ravi Dutt Gaur Page No. 11 / 21 has simply denied having received any notice without leading evidence to this effect. It is not her case that she was not residing on the address as mentioned in the legal notice i.e. H.No. B-102/2, Durga Vihar, New Delhi-80 at the relevant time. The vakalatnama dated 30.03.2019 filed on her behalf and bail bonds on record are also bearing same address.
The arguments of Ld. Defence Counsel is that as per tracking report, the legal notice was delivered at Sangam Vihar SO. Ld. Counsel has failed to show as to how this fact is sufficient to disprove the service of legal notice. As notice was sent through post, so there is presumption u/s 27 of general clauses act 1897 which provides as under:
27. Meaning of service by post- where any central act or regulation made after the commencement of this Act authorises or requires any document to be served by post, where the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
11. I am also enlightened on this point by the Judgment of Hon'ble Supreme Court of India titled as C.C.Alavi Haji Vs. Palapetty Muhammed & Anr. (2007) 6 SCC 555 in which it was held as under:
It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint.Crl Rev. No. 239/2022 Rekha Jha Vs. Ravi Dutt Gaur Page No. 12 / 21
Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the Court in respect of the complaint under section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court alongwith the copy of the complaint under section 138 of the Act, cannot obviously contend that there was no proper service of notice as required u/s 138, by ignoring statutory presumption to the contrary under section 27 of the G.C.Act and section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case (supra), if the giving of notice in the context of clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act.
12. Appellant did not do anything of that sort despite receiving the summons of this case for 30.03.2019. So, the defence of not receiving the legal notice is of no help to her.
13. The defence of the appellant mainly rests on following grounds:-
(i) That the amount of Rs. 1 lac advanced to her by the respondent Crl Rev. No. 239/2022 Rekha Jha Vs. Ravi Dutt Gaur Page No. 13 / 21 by way of cheque in February 2017 was in lieu of a committee which was alloted to her husband and not in lieu of any loan.
(ii) The cheque in question was not issued to the respondent in discharge of any liability to the tune of Rs. 2.5 lacs rather same was issued in February 2017 as security.
(iii) The respondent was not having the financial capacity to pay the alleged second loan of Rs. 1.5 lacs.
(iv) The advancement of any such loan was highly improbable even otherwise.
14. These grounds shall be discussed now in detail.
(i) That the amount of Rs. 1 lac advanced to her by the respondent by way of cheque in February 2017 was in lieu of a committee which was alloted to her husband and not in lieu of any loan.
(a) The respondent has denied that he was running any committee. A suggestion given to him in his cross examination dated 24.06.2019 to the effect that Rs. 1 lac given to appellant was of the committee and same was denied by him. He volunteered to say that he do not run any committee. During cross-examination of DW-2 (husband of appellant), several questions were to put to him regarding alleged committee. He stated that respondent was running the committee in his shop and its meeting used to take place on 5th day of every month. He also stated that same used to be attended by 8-9 people. Surprisingly, when he was asked as to whether he knows the name of those people, he denied Crl Rev. No. 239/2022 Rekha Jha Vs. Ravi Dutt Gaur Page No. 14 / 21 having knowledge about that. A person who was regularly committee meetings would have at least known the names of some of the people attending the same.
(b) Further, it is highly unbelievable that a person running a committee will take the contribution from the members in cash but will make the payment thereof through cheque from his personal account. DW-2 has relied upon the contents of a diary alleged being maintained by him qua transactions pertaining to committee. Admittedly, said documents are not bearing signatures of respondent. It is not clear as to how same is relevant for the purpose of showing the existence of any committee or the transactions pertaining to that. Ld. Counsel for appellant has relied upon Section 34 and 39 of Indian Evidnece Act for showing relevancy of said diary.
(c) Section 34 Indian Evidence Act provides as under:-
34. Entries in books of account including those maintained in an electronic form] when relevant.--Entries in books of accounts including those maintained in an electronic form], regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.
(d) Section 39 Indian Evidence Act provides as under:-
39. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers.--When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is Crl Rev. No. 239/2022 Rekha Jha Vs. Ravi Dutt Gaur Page No. 15 / 21 contained in a document which forms part of a book, or is contained in part of electronic record or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, electronic record, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.
(e) Admittedly, Ex.DW2/A is not books of accounts being regularly kept in the course of business. Similarly, same is not part of a longer statement. So, Section 34 and 39 of Indian Evidence Act are of no help to the case of the appellant to show the relevancy of Ex.DW-2/A.
(f) Even otherwise there are many points worth mentioning qua Ex.DW2/A putting question mark on its authenticity. As per case of appellant, they were to pay Rs. 5,000/- per month for a period of 20 months for the committee of Rs.1 lac being run by respondent starting from January, 2017. Also as per her, installments were being regularly paid till August, 2017 and thereafter, remaining amount of Rs.60,000/- was paid after sanction of loan to her husband by Bandhan Bank in March, 2018. As per Ex.DW2/A cheque amounting to Rs.60,000/- was issued in February, 2018. This is in contradiction of the statement of appellant (DW-1) that the cheque was issued after the sanction of loan. Further in case, payment of Rs. 60,000/- was made in cash on 08.03.2018 then there was no occasion for DW-2 to mention the entries pertaining to a period after that i.e. March, 2018 to August, 2018 in Ex.DW2/A. Also, as rightly pointed by Ld. Trial Court in the impugned Crl Rev. No. 239/2022 Rekha Jha Vs. Ravi Dutt Gaur Page No. 16 / 21 judgment that if the payment of Rs. 1 lac was to be made by husband of the appellant till August, 2018, then it is not clear as to why the payment was made in March,2018 i.e. more than 05 months before that.
(g) In view of above discussion this Court holds that the appellant has failed to prove existence of any committee or that the payment of Rs. 1 lac was made to the appellant in lieu of committee amount.
(ii) The cheque in question was not issued to the respondent in discharge of any liability to the tune of Rs. 2.5 lacs rather same was issued in February 2017 as security.
(a) It was argued by Ld. Counsel for appellant that cheque in question was given as security in February, 2017 when her husband was alloted the committee of Rs. 1 lac being run by the respondent. As discussed earlier, the appellant miserably failed to prove the existence of any such committee or transactions pertaining to that. The other argument of Ld. Defence Counsel is that the cheque book pertaining to the series of cheque in question was already over in February, 2017 and new cheque book was issued to her so, it was highly improbable that a cheque of that series would have been handed over to the respondent in the year 2018. She has relied upon Ex.DW1/A which shows that a new cheque book of 100 leaves starting from cheque no.480041 was issued to the appellant on 07.02.2017. Said argument seems logical at the first blush however, it is to be seen that as per the appellant herself, her husband had lodged a complaint with police (Ex.DW1/C OSR) in July, Crl Rev. No. 239/2022 Rekha Jha Vs. Ravi Dutt Gaur Page No. 17 / 21 2017 regarding missing of her cheque book alongwith passbook and ATM. It has not been mentioned in the said complaint as to what was the series of cheques lost by them. Said complaint can be taken as the one against the cheques pertaining to the series of cheque in question also thereby contradicting her defence.
(b) Even otherwise, Ex.DW1/A cannot be taken as a conclusive proof of the fact that the appellant was not in possession of any cheque pertaining to series starting from 861171 after issuance of another cheque book on 07.02.2017. As per this document, 31 cheques have been shown as destroyed and 19 cheques have been shown as passed. There is no clarity on the cheques passed and the cheques destroyed as the cheque numbers have not been mentioned therein. It is also not clear as to who destroyed the 31 cheques mentioned in that document.
(c) So, in view of the Court, Ex.DW1/A is not sufficient to show that the cheque in question could not have been issued by the appellant to the respondent in the year 2018.
(iii) The respondent was not having the financial capacity to pay the alleged second loan of Rs. 1.5 lacs.
Regarding financial capacity of the respondent to advance loan of Rs.1.5 lacs in cash, he was questioned about his profession and income in his cross examination. He stated that he was a shopkeeper of suit, sarees and was earning Rs. 60,000/- to Rs.70,000/- per month. There was no further cross-examination on this aspect. Even no suggestion was put to him questioning his financial capacity to pay such an amount. In these facts, the appellant has failed to show the Crl Rev. No. 239/2022 Rekha Jha Vs. Ravi Dutt Gaur Page No. 18 / 21 financial incapacity of the respondent as a shopkeeper earning Rs.60,000/-to Rs. 70,000/- per month can easily advance a loan of Rs. 1.5 lacs in cash. There is nothing more on record to doubt the financial capacity of the respondent and no such fact has been brought to the notice of this Court.
(iv) The advancement of any such loan was highly improbable even otherwise.
(a) It was argued by Ld. Counsel for appellant that second loan of Rs. 1.5 lac allegedly advanced by respondent to appellant was highly improbable as no proof thereof in any form has been placed on record. Also, it was highly improbable that respondent would have advanced another sum of Rs. 1.5 lacs in cash to appellant when the earlier alleged loan already advanced nearly 17 months ago for 2-3 months was not repaid. Further, second loan was allegedly paid when the shop of the appellant has been closed.
(b) It is true that no proof of payment of Rs.1.5 lacs in cash has been placed on record by the respondent. It is also true that advancing such a loan when the earlier loan was still unpaid even after lapse of more than 16 months seems strange however, it is to be noted that the respondent has stated that he was having friendly relations with the appellant. This fact has not been denied by the appellant. No such suggestion was put to the respondent. None of the two defence witnesses has deposed anything on this aspect. So, advancing another loan even when the earlier loan was not repaid is not an impossibility. Even otherwise, there is statutory presumptions u/s 139 NI Act in Crl Rev. No. 239/2022 Rekha Jha Vs. Ravi Dutt Gaur Page No. 19 / 21 favour of respondent to the effect that it shall be presumed that cheque in question was issued in discharge of debt or other liability.
(c) As mentioned earlier, the appellant has failed to prove her defence in any manner. She has also failed to raise doubt on the financial capacity of the respondent. Although, it is true that prima facie cheque in question is bearing the signature of appellant in a different ink and handwriting with that of other particulars, however, same also is of no help to the case of the appellant in view of judgment of Hon'ble Apex Court in Bir Singh Vs. Mukesh Kumar (2019) 4 SCC 197.
15. Considering the above discussion, this Court is of the view that the appellant has failed to rebut the presumptions u/s 118 and 139 NI Act existing in favour of respondent by way of evidence led by her. She has also failed to rebut the same by drawing inference from the material brought on record by both the parties or by reference to the relevant circumstances. Accordingly, it is held that Ld. Trial Court has rightly convicted him for the offence u/s 138 NI Act and no ground is made out to interfere with said judgment. The appeal stands dismissed in above terms.
16. Ms. Rekha Jha is directed to pay the fine of Rs.3,10,000/- as compensation to Mr. Ravi Dutt Gaur by 26 th April, 2023 as per Order on Sentence dated 02.09.2022 of Ld. Trial Court failing which she shall surrender before Ld. Trial Court on said date at 02:00 pm. In the eventuality of her failure to pay the compensation, Crl Rev. No. 239/2022 Rekha Jha Vs. Ravi Dutt Gaur Page No. 20 / 21 Ld. Trial Court shall enforce the sentence as per law. 20% of the fine amount deposited by her in terms of previous order dated 06.10.2022 of Ld. Predecessor be adjusted in the payment to be made now.
Appeal stands disposed of.
Announced in the open (Sunil Gupta)
Court on 19th April, 2023 Additional Sessions Judge-06,
South, Saket Courts, New Delhi
Crl Rev. No. 239/2022 Rekha Jha Vs. Ravi Dutt Gaur Page No. 21 / 21