Delhi District Court
Rakesh Kumar vs Rekha on 11 December, 2023
IN THE COURT OF SH. PURSHOTAM PATHAK, ASJ-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CRL. APPEAL No. 80/2023
CNR No. : DLST01-003127-2023
RAKESH KUMAR,
S/O SH. DHARAM PAL ARYA,
R/O H. NO. 192, GALI NO. 9,
BLOCK-G, EXTENSION, PHASE-6,
AYA NAGAR,
NEW DELHI-110047 ................ APPELLANT
VERSUS
1. THE STATE
2. REKHA
W/O MR. REHAN
R/O 355, BLOCK-G, EXTENSION,
KHASRA NO. 1375, 1376,
SHIV MANDIR GALI, PHASE-6,
AYA NAGAR,
NEW DELHI-110065 ................. RESPONDENTS
DATE OF INSTITUTION : 29.03.2023
ARGUMENTS HEARD ON : 11.10.2023
DATE OF JUDGMENT : 11.12.2023
JUDGMENT
1. By this order I shall decide the appeal against the impugned judgment and order on sentence.
2. The present appeal is directed against the impugned judgment dated 27.02.2023 whereby the appellant/ accused CA No. 80/2023 Rakesh Kumar Vs. State and Ors. page no. 1 of 12 was convicted for offence punishable under Section 138 of NI Act and subsequent order on sentence dated 02.03.2023, whereby appellant was sentenced to simple imprisonment of 5 months and was directed to pay compensation of Rs.6,95,000/- with simple interest thereon at 9% per annum from the date of filing of complaint till making actual payment, within 30 days to the complaint, in default of the same convict was directed to serve simple imprisonment for one month.
3. Briefly stated, the relevant facts giving rise to this appeal are that respondent and appellant had good family relations with each other and in the month of February 2016, the appellant approached the complainant for financial help of Rs.7,00,000/- with assurance to return the same within two years from the date of payment. Respondent handed over Rs.7,00,000/- to the appellant as friendly loan and father of the appellant furnished his property papers to the complainant as guarantor of appellant. Again in the month of March 2017, the appellant approached the respondent for sum of Rs. 1,00,000/- and assured him to return the same along with Rs. 7,00,000/-. Upon assurance of the appellant and surety already given by the appellant as well as his father, respondent lent Rs. 1,00,000/- to the appellant. Thereafter, in the month of March 2018, when respondent demanded his money, the appellant sought 1 year time. After expiry of one year time, CA No. 80/2023 Rakesh Kumar Vs. State and Ors. page no. 2 of 12 in the month of March 2019, the appellant issued a cheque for Rs.1,00,000/- which was transferred in the account of respondent on 02.05.2019. In the month of August 2019, when the appellant was asked to pay the remaining amount, he paid Rs. 5000/- in cash. Thereafter, when appellant stopped making the payment of remaining amount, the respondent issued a legal demand notice dated 11.02.2021 to which the appellant had also replied through his counsel. After receiving reply of legal notice complainant went to the house of appellant, the appellant requested him not to initiate legal proceedings and also demanded property papers in return of payment. Respondent assured him that property papers shall be returned only after receiving payment of Rs. 6,95,000/- Accordingly, the accused, in order to discharge his liability, issued one cheque bearing no. 105656 dated 25.02.2021 amounting to Rs. 6,95,000/- drawn on Punjab National Bank, Saket, New Delhi.
4. However, same was not encashed during its presentation and was dishonored on account of 'funds Insufficient'. Respondent served notice dated 20.03.2021 upon the appellant. The appellant replied to her legal notice dated 05.04.2021. However, despite service of notice the appellant did not pay the cheque amount. Hence, complaint was filed by the respondent against appellant for offence under Section 138 NI Act.
CA No. 80/2023 Rakesh Kumar Vs. State and Ors. page no. 3 of 12
5. The Trial Court summoned the appellant and framed notice under Section 251 Cr.P.C. Appellant pleaded not guilty and claimed trail. Both parties led their evidence and trial concluded in the judgment of conviction.
6. Being aggrieved by the impugned judgment of conviction and order on sentence appellant has preferred this appeal on following grounds:-
i. Ld. Trial has failed to appreciate that the appellant had rightly produced the defense evidence in support of his case but the same had been rejected by the trial court without any justification and without assigning any cogent reasons for the same.
ii. Ld. Trial Court has failed to appreciate the only defence taken by the appellant that blank signed cheques along with property papers of his father was given by the appellant to complainant in the year 2016 as security against the loan taken by him and the said loan was returned to the respondent no. 2 on 02.05.2019 through cheque, despite which, the complainant has not returned the cheque and GPA of the property.
iii. Ld. Trial Court also failed to appreciate that the appellant had no liability to discharge in respect of cheque in question against the respondent no. 2/complainant as the appellant had already made the CA No. 80/2023 Rakesh Kumar Vs. State and Ors. page no. 4 of 12 payment of Rs.1,00,000/- to the respondent no. 2/ complainant.
7. TCR was called for which has been perused.
8. I have heard arguments advanced by Ld. counsels for both the parties.
9. Ld. Counsel for appellant in addition to the above grounds argued that the Ld. Trial court has not appreciated the evidence properly and has found the accused/ appellant guilty only on the basis of conjunctures and surmises. He also argued that the complainant has not been able to explain how he was able to give cash in such a huge amount immediately after demonetization.
10. On the other hand, Ld counsel for the respondent has contended that the Ld. Trial Court had rightly arrived at the finding of guilt and had convicted the appellant. He further argued that there is a clear presumption under Section 138 NI Act in favour of complainant and it was for the applicant accused to rebut that presumption which he miserably failed to rebut.
11. The Ld. counsel has contended that the blank signed cheque was given as security and once the appellant has made the payment of Rs. 1,00,000/- to the respondent, he had no liability to discharge in respect of the cheque in question.
CA No. 80/2023 Rakesh Kumar Vs. State and Ors. page no. 5 of 12
12. The claim of appellant was dealt by Ld. Trial court in following manner:-
"It is proved that accused has returned Rs. 1,00,000/-
on 02.05.2019 through cheque and thereafter he has paid Rs. 5,000/- through cash in August 2019.
Accused has stated in his reply dated 05.04.2021 (E. CW-1/7) that he had given a security cheque (Ex.CW1/3) at the time of taking money and the same was issued on or before 03.07.2017.
Accused has not placed any explanation to show why has he issued cheque for the payment of Rs. 1,00,000/- on 02.05.2019 when a security cheque was already given to the complainant. Accused failed to prove that cheque in question was security cheque. It is stated by the accused that complainant has not returned his cheque given as security and he has also not filed any complainant against him because of mutual faith. The explanation advanced by the accused is unacceptable in the present circumstances and seems to be an afterthought. Accused has also failed to explain payment of Rs. 5,000/- after payment of Rs. 1,00,000/-
when there is no whisper on interest on principal amount by either party. There is an inter se contradiction in the version of the accused."
CA No. 80/2023 Rakesh Kumar Vs. State and Ors. page no. 6 of 12
13. The appellant has not disputed that he had taken loan from the respondent. He has also not disputed the issuance of cheque bearing no. 105656. The only ground he has taken is that he had received Rs.1,00,000/- from complainant and the cheque was given as security against the said amount which he had already returned. The defence of appellant was to establish by proving that he was under no liability to make payment of Rs. 6,95,000/-. However, appellant has not brought any evidence to show that he received only Rs.1,00,000/-. He also failed to prove that his liability was only towards payment of Rs.1,00,000/- and not Rs.6,95,000/-.
14. Further, from the evidence, notice u/s 251 Cr.P.C and statement of accused, it is clear that appellant has not disputed the signature on cheque, if that be the position, a presumption would arise under Section 139 of NI Act 1881 in favour of respondent, who has the cheque. Section 139 of NI Act provides that, it shall be presumed, unless the contrary it proved, that holder of cheque received the cheque of the nature referred to in Section 138 NI Act for the discharge in whole or in part, or any debt or other liability. The case put forth by the appellant does not satisfy the requirements of rebuttal even if tested on the touch stone of preponderance of probability. Therefore, in the present facts, it cannot be held that presumption which had arisen in favour of the respondent had been CA No. 80/2023 Rakesh Kumar Vs. State and Ors. page no. 7 of 12 successfully rebutted by appellant. Hence, the above contention have been rightly dealt by the Trial Court. I do not find any reason to take a different view from one taken by Ld. Trial Court.
15. The appellant has also contended that the defence evidence produced by appellant has been discarded without any justification and without assigning any reason for the same. The appellant in support of his case got examined himself as DW-1 and his wife as DW-2. Both the witnesses stated that loan of Rs. 1,00,000/- has been taken by the appellant in the year 2016 against which a signed cheque was given to the respondent and in the year 2019, said amount was returned to her. In their cross examination, both the witnesses stated that no complaint has been filed or any legal notice has been given to complainant for not returning the cheque and property papers. It is to be noted that bare denial would not serve the purpose of the accused as something which is probable has to be brought on record for getting the burden of proof shifted to complainant. The evidence adduced by appellant does not enable him to rebut the presumption under Section 139 of NI Act. The defence of appellant to rebut the presumption raised under Section 118 and 139 of the NI Act has been dealt in detail in judgment. Hence, there is no force in the contentions of Ld. counsel for the appellant.
16. The other contention of Ld. counsel is that the CA No. 80/2023 Rakesh Kumar Vs. State and Ors. page no. 8 of 12 complainant has not brought any material on record to show how he arranged Rs.1,00,000/- in cash immediately after demonetization.
17. In this respect Ld. Trial Court has made following observations:-
"Another argument raisded by the accused that how complainant has advanced money as alleged in the complaint immediately after demonetization which was announced on 08.11.2016.
On perusal of this complaint, it is evidenct that Rs.
7,00,000/- was given to the accused before demonetization and Rs.
1,00,000/- was given after demonetization Rs.
1,00,000/- was given by the complainant in the month of March 2017. This issue was not raised during evidence and complainant was not given opportunity to answer on this fact. Notification RBI/2016-17/112 DCM (Plg) No. 1226/10.27.00/2016-17 dated 08.11.2016 perused. It is a matter of fact that under demonetization policy everybody was allowed to exchanged the currency and the said system was to be revised time to time. CW-2 has stated that Rs. 1,00,000/-
was given in the demonetization of Rs. 100 and Rs. 500. Currency note of Rs. 500 was demonetized only. Currency note of Rs.
CA No. 80/2023 Rakesh Kumar Vs. State and Ors. page no. 9 of 12 100 was still a legal tender.
Accordingly, this plea may be considered as mere conjecture and surmises which is not acceptable.
18. This contention was raised for the first time during the arguments. No evidence was led by the appellant that due to demonetization, appellant could not have arranged the cash of Rs. 1 lacs. It is to be noted that notification in regard to demonetization was considered by the Trial court and had been observed that everybody was allowed to exchange the currency and also that currency note of Rs. 100 were still a legal tender.
19. I am of view that reasoning given by Trial Court on this count is correct.
20. In view of my above discussion, I find no illegality or infirmity in the judgment dated 27.02.2023 whereby the appellant was convicted.
21. As far as point of sentence is concerned, Ld. counsel for appellant sought lenient approach. The Trial Court has already passed an order sentencing appellant to simple imprisonment of 5 months and imposing compensation of Rs.6,95,000/- with simple interest thereon at 9% per annum from the date of filing of complaint till making actual payment, and in default of the same to serve simple imprisonment for one month. Keeping in view all the circumstances, I find that the appellant can be punished for CA No. 80/2023 Rakesh Kumar Vs. State and Ors. page no. 10 of 12 the delay occasioned by him in making payment of the due amount to the respondent/ complainant, by sustaining the order of fine as imposed by the Trial Court. In fact, the amount of Rs.6,95,000/- with simple interest thereon at 9% per annum from the date of filing of complaint till making actual payment, is quite handsome amount for the respondent to be compensated for all the losses and sufferings. Therefore, the sentence of simple imprisonment for 5 months would be excessive, in addition to the penalty awarded to the appellant.
22. Hence, conviction of appellant is maintained for offence under Section 138 NI Act. Appeal is partly allowed in respect of sentence and it is directed that the appellant shall pay a compensation of Rs. 6,95,000/- to the respondent/ complainant within a period of one month from today. Sentence of simple imprisonment for 5 months is set-aside. The fixed deposit of Rs. 1 lakh furnished by the appellant shall be released to the respondent no. 2 complainant after making an endorsement in favour of respondent / complainant. The remaining part of compensation shall be paid upto 11.01.2024. In any case appellant shall surrender before the Trial Court on 11.01.2024, if he fails to deposit the remaining amount of compensation, so as to suffer the sentence of simple imprisonment of one month in default of payment of remaining part of compensation.
CA No. 80/2023 Rakesh Kumar Vs. State and Ors. page no. 11 of 12
23. TCR alongwith a copy of this judgment be sent to the Ld. Trial Court.
24. A copy of this judgment be supplied to Ld. Counsel forthwith.
25. Appeal file be consigned to the record room after due compliance.
ANNOUNCED IN THE OPEN COURT TODAY ON THIS 11th DAY OF DECEMBER, 2023 (PURSHOTAM PATHAK) ADDITIONAL SESSIONS JUDGE (SOUTH) SAKET COURTS : NEW DELHI CA No. 80/2023 Rakesh Kumar Vs. State and Ors. page no. 12 of 12