Delhi District Court
Dharmender Kumar vs Asha Arya on 1 August, 2024
IN THE COURT OF SH. LOVLEEN, ADDITIONAL SESSIONS
JUDGE-03, SAKET COURTS, NEW DELHI
DLSE010118632023
CRL. APPEAL No. 353/ 2023
Dharmender Kumar
S/o Sh. Shayam Lal
R/o 22, B-227, Tranjit Camp,
Govind Puri, Kalkaji
New Delhi- 110019
....Appellant
VERSUS
Asha Arya
W/o Sh. Vidya Bushan Arya,
R/o 1439/13, Second Floor,
Govind Puri, Kalkaji
New Delhi-110019
...Respondent
Date of institution : 18.11.2023
Date of Reserving judgment : 04.06.2024
Date of Pronouncement : 01.08.2024
Decision : Disposed of.
Crl. Appeal No: 353/2023 Dharmender Kumar vs Asha Arya 1/21
JUDGMENT
1. This is an appeal under section 374(3) Cr.PC preferred by the appellant against the judgment dated 12.07.2023 and order on sentence dated 17.10.2023 passed by Court of Ld. Metropolitan Magistrate (N.I. Act), Digital Court-03, South-East District, whereby the Appellant / accused was convicted of the offence punishable under Section 138 NI Act in CC No. 8903/2021 titled as Asha Arya vs Dharmender Kumar and sentenced him to a fine of Rs.14,00,000/-, all of which is payable to the respondent/complainant as compensation within 1 month from the date of sentence. In default, the appellant is liable to undergo simple imprisonment for six months. For the sake of convenience, the appellant herein shall be referred to as 'accused' and the respondent herein shall be referred to as 'complainant'.
BRIEF FACTS
2. The facts of the case have been correctly noted by the Ld. Trial Court in its impugned judgment. The relevant paragraphs are reproduced hereinafter for ready reference:-
" 2. Briefly stated, the case of the complainant is that she and the accused were having good family relations and were on visiting terms with each other. Therefore, when the accused approached her in January, 2019 with a request for a friendly loan of Rs. 10 Lac for urgent need, she gave the same to him in cash on 20.01.2019 for a period of 2 1/2 years. On 04.10.2021, the accused issued the impugned cheque for return of loan amount which upon presentation got dishonored with reason account Crl. Appeal No: 353/2023 Dharmender Kumar vs Asha Arya 2/21 closed. A Legal Demand Notice was sent by the complainant to the accused on 22.10.2021 which was delivered upon him on 26.10.2021 qua which he sent a reply to her dated 30.10.2021 through his Counsel. Thereafter, the complainant filed the present complaint case u/s 138 NI Act on 24.11.2021.
TRIAL
3. Vide order dated 04.03.2022, the Ld. Metropolitan Magistrate summoned the accused to face trial u/s 138 NI Act. On 07.01.2023, a notice u/s 251 Cr.P.C. was framed upon the accused wherein he admitted his signature on the cheque, service of legal demand notice and the factum of dishonour of cheque. However, he pleaded not guilty and claimed that the the cheque in question got stolen alongwith his car 10-12 years ago. He further claimed that he does not know the complainant and has no liability to pay the cheque amount. He further stated that he had also sent a reply to the legal demand notice sent by the complainant.
4. The complainant examined herself as CW-1 in support of her allegations against the accused in this case. Statement of accused was recorded u/s 313 Cr.P.C. In defence, the accused examined himself as DW-
1. Upon the conclusion of trial, accused was convicted for the commission of offence punishable u/s 138 NI Act vide judgment dated 12.07.2023.
GROUNDS OF APPEAL
5. The grounds cited by the accused against the impugned judgement are as under :
A). BECAUSE the impugned Judgment and order is bad in law and contrary to the facts on record.
Crl. Appeal No: 353/2023 Dharmender Kumar vs Asha Arya 3/21 B). BECAUSE the trial court erred in convicting the appellant U/s 138 N.I Act.
C). BECAUSE the trial court failed to appreciate that the cheque in question was not issued by the appellant for any legally enforceable debt or liability towards the respondent.
D). BECAUSE the trial court failed to appreciate that during the failed to prove her financial capacity to advanced loan of Rs. 10,00,000/- in cash to file appellant.
E). BECAUSE the trial court failed to appreciate that during cross-examination the respondent had admitted that the amount of Rs. 10,00,000/- advanced to the appellant as loan was arranged by her by selling her property. The respondent has failed to place any proof of sale of property on record to show that she actually was in possessing such huge loan amount. F). BECAUSE the trial court failed to appreciate that the appellant has since very beginning has maintained that the alleged cheque was lost by him and same has been misused by the respondent.
G). BECAUSE the trial court ought to have considered that even otherwise the respondent has admitted in the cross- examination that arranged the amount of Rs. 10,00,000/- in cash by selling a property and getting the sale proceed in cash. Even if the aforesaid version of the respondent is to be true, the Crl. Appeal No: 353/2023 Dharmender Kumar vs Asha Arya 4/21 whole transaction is illegal and therefore the same cannot be termed as legally enforceable debt or liability.
H). BECAUSE the trial court failed to appreciate that the falsity of the claim of the respondent is established by the fact that she herself in her cross-
examination had admitted that she has neither got issued any receipt of the loan amount or maintained any record of the same or shown the said loan amount in her ITR. Infact the respondent ought to have filed her ITR to at least show the sale of the property.
I). BECAUSE the trial court ought to have appreciated that the appellant has raised probable defence to rebut the presumption U/s 139 N.I. Act and thereafter the respondent was duty bound to prove her financial capacity or the source of the amount of Rs. 10,00,000/- allegedly advance to the appellant as loan. J). BECAUSE the trial court erred in not providing the ample opportunity to the appellant to put forth his case before the trial court and without hearing the argument on behalf of the appellant the impugned judgment was passed.
K). BECAUSE in any event the judgment and order is bad and deserves to be set-aside. Hence this appeal with the following prayers:
6. It is prayed that the judgment dated 12.07.2023 and and the order on Crl. Appeal No: 353/2023 Dharmender Kumar vs Asha Arya 5/21 sentence dated 17.10.2023 may be set aside.
7. On the other hand, Ld. Counsel for the complainant has argued that the accused has been correctly convicted by the Trial Court and an appropriate sentence has been imposed upon him. He prays for dismissal of the appeal.
DISCUSSION
8. This Court has considered the oral submissions as well as the records.
9. Recently, the Hon'ble Supreme Court was pleased to define the contours of the law relating to the provision u/s 138 of Negotiable Instruments Act in Rajesh Jain Vs. Ajay Singh 2023 INSC 888. The relevant extracts of the observations are reproduced below for ready reference:-
Section 138 of the NI Act - Necessary Ingredients
25. Essentially, in all trials concerning dishonour of cheque, the courts are called upon to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act.
26. In Gimpex Private Limited vs. Manoj Goel (2022) 11 SCC 705 , this Court has unpacked the ingredients forming the basis of the offence under Section 138 of the NI Act in the following structure:
(1) The drawing of a cheque by person on do account maintained by him with the banker for the Crl. Appeal No: 353/2023 Dharmender Kumar vs Asha Arya 6/21 payment of any amount of money to another from that account;
(i) The cheque being drawn for the discharge in whole or in part of any debt or other liability;
(iii) Presentation of the cheque to the bank arranged to be paid from that account,
(iv) The return of the cheque by the drawee bank as unpaid either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount
(v) A notice by the payee or the holder in due course making a demand for the payment of the amount to the drawer of the cheque within 30 days of the receipt of information from the bank in regard to the return of the cheque; and
(vi) The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days of the receipt of the notice.
27. In K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7 SCC 510 this Court had summarised the constituent elements of the offence in fairly similar terms by holding:
"14. The offence Under Section 138 of the Act can be completed only with the concatenation of a number of acts.The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the Crl. Appeal No: 353/2023 Dharmender Kumar vs Asha Arya 7/21 drawer of the cheque demanding payment of the cheque amount, (3) failure of the drawer to make payment within 15 days of the receipt of the notice."
28. The five (5) acts as set out in K Bhaskaran's case (supra) are, generally speaking, matters of record and would be available in the form of documentary evidence as early as, at the stage of filing the complaint and initiating prosecution. Apart from the above acts, it is also to be proved that cheque was issued in discharge of a debt or liability (Ingredient no. (ii) in Gimpex's case). The burden of proving this fact, like the other facts, would have ordinarily fallen upon the complainant. However, through the introduction of a presumptive device in Section 139 of the NI Act, the Parliament has sought to overcome the general norm as stated in Section 102 of the Evidence Act and has, thereby fixed the onus of proving the same on the accused. Section 139, in that sense, is an example of a reverse onus clause and requires the accused to prove the non-existence of the presumed fact, i.e., that cheque was not issued in discharge of a debt/liability.
Burden of Proof and Presumptions: Conceptual Underpinnings
29. There are two senses in which the phrase 'burden of proof' is used in the Indian Evidence Act, 1872 (Evidence Act, hereinafter). One is the burden of proof arising as a matter of pleading and the other is the one which deals with Crl. Appeal No: 353/2023 Dharmender Kumar vs Asha Arya 8/21 the question as to who has first to prove a particular fact. The former is called the 'legal burden' and it never shifts, the latter is called the 'evidential burden' and it shifts from one side to the other. [See Kundanlal v. Custodian Evacuee Property (AIR 1961 SC 1316)]
30. The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party's case. If, at the conclusion of the trial a party has failed to establish these to the appropriate standards, he would lose to stand. The incidence of the burden is usually clear from the pleadings and usually, it is incumbent on the plaintiff or complainant to prove what he pleaded or contends. On the other hand, the evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; the burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be is adduced by either side (See Halsbury's Laws of England, 4th Edition para 13). While the former, the legal burden arising on the pleadings is mentioned in Section 101 of the Evidence Act, the latter, the evidential burden, is referred to in Section 102 thereof. [G.Vasu V. Syed Yaseen (AIR 1987 AP139) affirmed in Bharat Barrel Vs. Amin Chand [(1999) 3 SCC 35] ]
31. Presumption, on the other hand, literally means "taking as true without examination or proof". In Kumar Crl. Appeal No: 353/2023 Dharmender Kumar vs Asha Arya 9/21 Exports v. Sharma Exports (2009) 2 SCC 513, this Court referred to presumption as "devices by use of which courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence."
32. Broadly speaking, presumptions are of two kinds, presumptions of fact and of law. Presumptions of fact are inferences logically drawn from one fact as to the existence of other facts. Presumptions of fact are rebuttable by evidence to the contrary. Presumptions of law may be either irrebuttable (conclusive presumptions), so that no evidence to the contrary may be given or rebuttable. A rebuttable presumption of law is a legal rule to be applied by the Court in the absence of conflicting evidence (Halsbury, 4th Edition paras 111, 112]. Among the class of rebuttable presumptions, a further distinction can be made between discretionary presumptions ('may presume') and compulsive or compulsory presumptions ('shall presume'). [G. Vasu V. Syed Yaseen (Supra)]
33. The Evidence Act provides for presumptions, which fit within one of three forms: 'may presume' (rebuttable presumptions of fact), 'shall presume' (rebuttable presumption of law) and conclusive presumptions (irrebuttable presumption of law). The distinction between 'may presume' and 'shall presume' clauses is that, as regards the former, the Court has an option to raise the presumption or not, but in the latter case, the Court must necessarily raise Crl. Appeal No: 353/2023 Dharmender Kumar vs Asha Arya 10/21 the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved, [G.Vasu V. Syed Yaseen (Supra)] Section 139 NI Act-Effect of Presumption and Shifting of Onus of Proof
34. The NI Act provides for two presumptions: Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that 'unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability'. It will be seen that the 'presumed fact' directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138.
35. Section 139 of the NI Act, which takes the form of a 'shall presume' clause is illustrative of a presumption of law. Because Section 139 requires that the Court 'shall presume' the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase Crl. Appeal No: 353/2023 Dharmender Kumar vs Asha Arya 11/21 'unless the contrary is proved'.
36. The Court will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel Vs. Amin Chand] [(1999) 3 SCC 35]
37. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that 'a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar (2019) 4 SCC 197]. Therefore, mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption.
38. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to Crl. Appeal No: 353/2023 Dharmender Kumar vs Asha Arya 12/21 be taken to be true, without expecting the complainant to do anything further.
39. John Henry Wigmore12 on Evidence states as follows:
"The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption 'disappears as a rule of law and the case is in the Jury's hands free from any rule."
40. The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non- existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of 'preponderance of probabilities', similar to a defendant in a civil proceeding. [Rangappa vs. Mohan (AIR 2010 SC 1898)]
41. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words 'until the contrary is proved' occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition Crl. Appeal No: 353/2023 Dharmender Kumar vs Asha Arya 13/21 that debt/liability did not exist. [Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513]25
42. In other words, the accused is left with two options. The first option-of proving that the debt/liability does not exist-is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non- existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused's case may be even fifty one to forty nine and arising out of the entire circumstances of the case, which includes: the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his 313 statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was 'no debt/liability'. [Kumar Exports and Sharma Carpets, (2009) 2 SCC 513]
43. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact.
Crl. Appeal No: 353/2023 Dharmender Kumar vs Asha Arya 14/21
44. The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. In Kundanlal's case- (supra) when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non- existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Section 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well.
45. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption 'disappears' and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence Crl. Appeal No: 353/2023 Dharmender Kumar vs Asha Arya 15/21 of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa vs. Mudibasappa, AIR 2019 SC 1983; See also, Rangappa vs. Sri Mohan (2010) 11 SCC 441].
Existence of Statutory Presumptions
10. Trial court record reflects that at the time of framing of notice u/s 251 Cr.P.C the accused admitted that the cheque in question belongs to him and also bears his signatures. Although the accused denies that he had handed over the cheque in question to the complainant, however, during the cross-examination of complainant, the accused has admitted the handing over the cheque in question to the complainant. The relevant portion of the cross-examination of complainant / CW-1 is as under:-
"................... The cheque was given by the accused at my house and no one other than me and accused was present at that time............... The present cheque was given to me by the accused on 04.10.2021.............."
The above admission is binding upon the accused in view of the observations made made by Hon'ble Supreme Court in Balu Sudam Khalde and Anr. Vs. State of Maharashtra 2023 SCC Online SC 355 . That apart, it must be noted here that the accused claims that the cheque in question got stolen alongwith his car on 25.11.2018 (which is contrary to his claim made at the time of framing of notice u/s 251 Cr.P.C. on Crl. Appeal No: 353/2023 Dharmender Kumar vs Asha Arya 16/21 07.01.2023 to the effect that the cheque in question got stolen alongwith his car 10 - 12 years ago). However, the reply sent by the accused to the legal demand notice (sent to him by complainant after the dishonour of cheque in question) reflects that the accused claims that the cheque in question was stolen from his house. This very claim is reflected in the complaint dated 30.10.2021 Ex.DW1/B sent by him to the police after the receipt of said legal demand notice. It is apparent that the accused is taking contradictory stand at different stages before and during the trial with respect to the 'loss of cheque in question'. As such, this Court is not inclined to uphold the claim of the accused that he did not hand over the cheque in question to the complainant. Admittedly, the cheque in question was dishonored upon being presented for encashment by the complainant. Service of the legal demand notice is admitted by the accused. Admittedly, the accused did not make any payment demanded vide the said legal notice within the period prescribed u/s 138 of NI Act. All the above facts are sufficient to invoke the presumptions available to the complainant u/s 118 NI Act and u/s 139 NI Act. As such, the evidential burden stood transferred upon the accused to prove that the cheque in question was not issued towards discharge of any liability. Until the said evidential burden is discharged by the accused, the presumptions available against the accused u/s 118 NI Act and u/s 139 NI Act will have to be assumed to be true, without expecting the complainant to do anything further. The said burden could be discharged by the accused either by leading defence evidence to conclusively establish that the cheque was not issued in discharge of a debt / liability or by proving the non existence of debt / liability on preponderance of probabilities by referring to the particular circumstances of the case. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence. Once Crl. Appeal No: 353/2023 Dharmender Kumar vs Asha Arya 17/21 the accused produces such evidence, the burden shifts back to the complainant and the above mentioned presumptions disappear.
Rebuttal of Statutory Presumptions
11. Now, the question left to be decided is whether the said presumptions have been successfully rebutted by the accused or not. In order to adjudicate the same, this Court must deal with the facts adduced on record by the accused during the cross-examination of complainant.
12. The said adjudication requires an understanding of the stand taken by the parties. As per complainant, the cheque in question was issued by the accused in order to repay the loan amount of Rs. 10,00,000/- to the complainant, which loan had been previously availed by him. On the other hand, the accused denies any such liability and claims, in response to notice framed upon him u/s 251 Cr.PC, that the cheque was stolen 10 - 12 years ago alongwith his car and that he does not know the complainant and has no liability to pay the cheque amount. In his statement recorded u/s 313 Cr.P.C, the accused has simply reiterated the above defence. Accused examined himself as DW-1 and reiterated the same defence.
13. Now we delve into the testimony of complainant, who examined herself as CW-1. CW-1 deposed in line with the facts mentioned in the afore-going paragraphs. She was cross-examined at length on behalf of the accused. However, she did not betray any signs of falsity or untruth, nor any inconsistency has been noticed in her oral testimony. That apart, the accused made several admissions during the course of trial, which admissions corroborate the case of the complainant in all material aspects. It would be appropriate to reproduce the said admissions made during the cross-examination of complainant hereinafter for convenience of all. The Crl. Appeal No: 353/2023 Dharmender Kumar vs Asha Arya 18/21 relevant portions of cross-examination of complainant / CW-1 are as under:-
".................Before the present loan amount for which the impugned cheque was issued, the accused had taken small amounts from me as loan which were returned by him. I do not have any written document showing advancement of loan to the accused. The cheque was given byt eh accused at my house and no one other than me and accued was present at that time. ......... I had sold one property for Rs. 14 lakhs and had given loan to the accused. ....................... I had given total loan amount of Rs. 10 lakhs to the accused in one go. I did not take any receiving from the accused. No written agreement was executed regarding the loan given tot he accused. I have not maintained any written account regarding payment of loan to the accused........... I had not given any other loan to the accused after giving the loan of Rs. 10 lakhs............ The present cheque was given to me by the accused on 04.10.2021.............. The accused had taken for his business purpose......................."
(CW-1 Asha Arya in his cross-examination dated 04.03.2023 on behalf of accused.)
14. It is apparent from the above extracts of cross-examination of the complainant / CW-1 that the accused has admitted (i) that he (accused) was acquainted with the complainant; (ii) that he availed a loan of Rs. 10,00,000/- from the complainant; (iii) that he handed over the cheque in question to the complainant at the relevant time. The above admissions are Crl. Appeal No: 353/2023 Dharmender Kumar vs Asha Arya 19/21 binding upon the accused in view of the observations made by Hon'ble Supreme Court in Balu Sudam Khalde and Anr. Vs. State of Maharashtra 2023 SCC Online SC 355. The said admissions are sufficient to discard the claim of the accused that he never availed any loan from the complainant or he never handed over the cheque in question to her. Consequently, it has to be held that the accused has not been able to rebut the legal presumptions available in favour of the complainant during the cross-examination of complainant.
15. In view of the above discussion, the oral testimony of accused, who examined himself as DW-1 during the course of trial, to the effect that he does not know the complainant, nor he availed any loan from her and that the cheque in question was stolen alongwith his car, is hereby discarded. There is no other material on record which corroborates the claim of the accused. As such, it could be safely held that the accused has failed to rebut the statutory presumption through defence evidence also.
DECISION
16. Apparently, all the statutory presumptions available to the complainant remain unrebutted and intact. All the ingredients of the offence punishable u/s 138 NI Act are available against the accused. Consequently, it has to be held that accused was correctly convicted u/s 138 NI Act by the Ld. Metropolitan Magistrate concerned. For the afore-going reasons, the impugned judgment dated 12.07.2023 is hereby affirmed and upheld.
SENTENCE
17. Admittedly, the cheque in question was issued for a payment of Rs. 10,00,000/- on 04.10.2021. Admittedly, the complainant has been Crl. Appeal No: 353/2023 Dharmender Kumar vs Asha Arya 20/21 running from pillar to post to recover the said amount. So far as the aspect of sentencing by Ld. Trial Court is concerned, I am of the view that Ld. Trial Court has already taken quite a lenient view while sentencing the accused. As such, the sentence imposed by the Ld. Trial Court does not call for any interference. Benefit of Section 428 Cr.P.C. be also given to the accused.
18. Appeal filed by accused therefore stands disposed of in above Digitally terms. signed by LOVLEEN LOVLEEN Date:
Announced & Dictated in the 2024.08.01
14:34:06
Open Court today i.e. 01.08.2024 +0530
(Lovleen)
ASJ-03 (South East)
Saket Courts, Delhi
Crl. Appeal No: 353/2023 Dharmender Kumar vs Asha Arya 21/21