Delhi District Court
Sandeep Chaudhary vs The State Govt Of Nct Delhi on 1 May, 2024
IN THE COURT OF MS AMBIKA SINGH,
ASJ-02/ WEST DISTRICT, TIS HAZARI COURTS, DELHI
CNR No.DLWT01-008671-2022
Criminal Appeal No. 229/2022
SH. SANDEEP CHAUDHARY
S/o Sh. S. P. Chaudhary
R/o H. No. WZ-31,
Sant Nagar Extension,
Tilak Nagar, New Delhi-110018. .....Revisionist
v.
1.STATE
2.DHEERAJ BHOLA
S/o Sh. Suraj Prakash Bhola
R/o 17/18, Subhash Nagar,
New Delhi-110027 .....Respondent
Date of institution of the cases : 06.09.22
Date when the cases reserved for order : 24.04.24
Date of announcement of order : 01.05.24
J U D G M E N T:
1. This criminal appeal assails the judgment dated 21.07.2022 and order on sentence dated 04.08.2022 (hereinafter to be referred as the impugned judgment) passed by the Ld. MM, Negotiable Instrument Act in case CC No. 20840/16. A prayer has been made to set aside the said impugned judgment dated 21.07.2022 CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 1 of 25 along with order on sentence dated 04.08.22.
2. The Ld. Trial court vide judgment dated 21.07.2022 has passed the impugned judgment. Briefly stated, it is the case that on 19.03.2015 revisionist/accused has requested the respondent no.2/complainant for friendly loan of Rs.2 lacs for purchasing one printing machine for his printing business. It is further alleged that respondent no.2/complainant on 22.03.2015 arranged a sum of Rs.1,40,000/- and he gave the said amount to revisionist/accused and it was agreed between them that the revisionist/accused will repay the said loan amount on or before 22.06.2015 but even after expiry of date of repayment of loan, the revisionist failed to pay the said amount despite repeated requests of the respondent no.2/complainant. However, on 30.10.2015, the accused stated to the plaintiff respondent no.2/complainant that that on 04.11.2015 the accused will pay Rs. One lac and on 04.12.2015, the accused will pay the remaining amount of Rs.40,000/-to the respondent no.2/complainant and it was also reduced into writing by accused and two cheques bearing no. 943533 dated 16.05.2016 for Rs.50,000/- & another cheque bearing no.076118 dated 19.05.2016 for an amount of Rs.90,000/- both drawn on Corporation Bank. It is further alleged that on presentation, both the cheques were dishonoured with the remark "funds insufficient" & "drawers signature differs"
respectively vide returning memo dated 18.05.2016 & 21.05.2016 CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 2 of 25 respectively. Therefore, respondent no.2/complainant sent a legal notice dated 03.06.2016 upon the accused/revisionist but to no avail.
3. Appellant has assailed the impugned judgment dated 21.07.2022 and order on sentence dated 04.08.2022 on the ground that the Ld. Trial Court has failed to appreciate the fact that the complainant/respondent no.2 states that there was friendly relation between the complainant and the accused whereas in his cross- examination it is stated by the complainant that "I do not have any family relations with the accused and I know only Mr. Naresh Kumar'. Ld. Trial Court failed to appreciate the fact that prior to the transaction in the complaint, no monetary transaction has happened between the complainant and the accused and the complainant did not take anything in written from the accused against the alleged loan and provided the amount in cash to the accused. Further, the cheque in question have been handed over as blank signed cheques alongwith two other blank cheques and the contents in the cheques in question were filled by the accused. Ld. Trial Court failed to appreciate the fact that quarrel has taken place between the complainant and the accused before the police officials of PS Tilak Nagar and that statement has been signed by the complainant and the accused wherein accused admitted the liability of Rs.70,000/-. Ld. Trial Court failed to appreciate the fact that the accused has not received the alleged loan from the complainant and the cheques in question were CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 3 of 25 handed over as blank signed cheques against the loan of Rs.70,000/-. Ld. Trial Court failed to appreciate the fact that the right of accused to lead DE has been closed by the Ld. Trial Court vide order dated 29.06.2022 in the absence of accused, due to which the accused could not produce the document before the Ld. Trial Court. Ld. Trial Court has committed the serious error in passing the impugned judgment and order of sentence in so far as it has failed to take into consideration the fact that the complainant could not prove existence of any legally enforceable debt or liability against the accused. The impugned judgment and order on sentence passed by Ld. MM is contrary to law and the decision is wholly based on the presumptions and assumptions made by Ld. MM. The decision of the Ld.Trial Court is based on surmises, illegalities and lack of application of the recent judicial pronouncements of various Apex Courts. Ld. Trial Court has not considered the facts and circumstances of the case and wrongly convicted the revisionist/accused.
4. Notice of the Revision petition was issued to the respondent on which the respondent entered his appearance. TCR was also summoned.
5. Ld. Counsel for respondents has argued that the present petition and stated that it is not maintainable as the revisionist failed to point out any infirmity in the impugned judgment and order on CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 4 of 25 sentence. It is further argued that the accused has admitted the dishonoured cheques in question bears his signature. It is further argued that the testimony of complainant during the cross- examination by Ld. counsel for the accused is consistent and the accused failed to shake the credibility and veracity of the complainant and the independent witness CW2 Naresh Kumar Sachdeva.
6. Also, he has filed reply to the present appeal stating that the legal presumption of consideration u/s 139 of NI Act would act against the accused as the accused has admitted that the dishonored cheques in question bears his signature and also the testimony of complainant during the cross examination by Ld. Counsel for the accused is consistent and the accused failed to shake the credibility and veracity of the complainant and the independent witness CW 2 Naresh Kumar Sachdeva and the accused did not lead defense evidence to rebut the presumption in favour of the complainant defense. And, that no proof has been placed on record by the accused to prove the alleged payment of Rs. 29,500/- to the complainant. CW2 Naresh Kumar Sachdeva has been testified in the complaint which makes the case of the complainant more strong against the accused person. Further, the respondent has denied the grounds of appeal and stated that no monetary transaction was happened between the complainant and the accused and the complainant did not take anything in written from the accused against the alleged loan and CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 5 of 25 provided the amount in cash to the accused and that the fact that the complainant provided the amount in cash but he did not remember the denomination of the cash which raised the suspicion on the complainant that he provided the alleged amount to the complainant. It is submitted that the alleged loan amount was given in the presence of independent witness namely Naresh Kumar who has also deposed in favour of the complainant and the accused did not vitiate the veracity of the independent witness in his cross examination and he has denied that the fact cheques in questions have been handed over as blank signed cheques alongwith two other blank cheques and the contents in the cheques in question were filled by the accused and the quarrel has taken place between the complainant and the accused before with police officials of P.S. Tilak Nagar, Delhi and the statement has been signed by the complainant and the accused where the liability of Rs. 70,000/- was admitted by the accused against the complainant and the same has been also signed by the accused. ARGUMENTS OF THE APPELLANT
7. In the middle of the proceedings, neither the appellant was appearing nor his counsel despite giving ample opportunities. Even court notices have been issued to the appellant. Sh. J.K.Tirpathi was appointed Ld. Amicus Curie for appellant Sandeep Chaudhary. Thereafter, he addressed his side of arguments on the basis of material on record. It was argued on behalf of the Ld. Amicus for the CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 6 of 25 appellant that Ld. Trial Court failed to appreciate the fact that the accused has not received the alleged loan from the complainant and the cheques in question were handed over as blank signed cheques against the loan of Rs.70,000/-. Further it is argued that Ld. Trial Court has committed the serious error in passing the impugned judgment and order of sentence in so far as it has failed to take into consideration the fact that the complainant could not prove existence of any legally enforceable debt or liability against the accused. Also , it is argued that Ld. Trial Court has not considered the facts and circumstances of the case and wrongly convicted the revisionist/accused.
CONTENTIONS OF THE COMPLAINANT:
8. Ld. Counsel for the respondent/complainant contended that the Ld. Trial Court considered the evidence minutely and delivered a reasoned judgment. He contended that merely submitting that the cheque in question was a security cheque does not absolve the liability of the accused/appellant in absence of any evidence and there is no plausible defence. He contended that the appellant failed to raise any probable defence to displace statutory presumption under section 138 NI Act. He contended that the complainant has proved her financial capacity to advance loan amount to the appellant. He contended that there is no manifest error of law or procedure or perversity in the impugned judgment.
CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 7 of 25
9. The jurisdiction of the appellate court is co- extensive with that of the trial court in the matter of assessment, appraisal and appreciation of the evidence and also to determine the disputed issues. A court exercising appellate power must not only consider questions of law but also questions of fact and in doing so it must subject the evidence to a critical scrutiny. In Surinder Mohan Katwal vs. State of Himachal Pradesh, (2018) 15 SCC 349, Hon'ble Supreme Court of India held as under:
"14.....The powers of the appellate court under Section 386 CrPC are the same as that of the trial court. It is true that the trial court being a primary court of facts, which has the advantage of seeing and observing the witnesses has to thoroughly analyse the evidence and record its findings. In an appeal from a conviction, it is for the appellate court to be satisfied affirmatively that the prosecution case is substantially established and record its own findings to confirm the conviction....."
POINTS FOR CONSIDERATION:
(a) Whether the appellant had drawn cheques on an account maintained by him with a banker for payment of an amount of Rs. 50,000/- and Rs. 90,000/- in favour of the complainant?
It is the case that on 19.03.2015 revisionist/accused had requested the respondent no.2/complainant for friendly loan of Rs.2 lacs for purchasing one printing machine for his printing business. It is further alleged that respondent no.2/complainant on 22.03.2015 CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 8 of 25 arranged a sum of Rs.1,40,000/- and he gave the said amount to revisionist/accused and it is agreed between them that the revisionist/accused will repay the said loan amount on or before 22.06.2015 but even expiry of date of repayment of loan, the revisionist failed to pay the said amount despite repeated requests of the respondent no.2/complainant. Two cheques bearing no. 943533 dated 16.05.2016 for Rs.50,000/- & another cheque bearing no.076118 dated 19.05.2016 for an amount of Rs.90,000/- both drawn on Corporation Bank were handed over to the respondent. It is further alleged that on presentation, both the cheques were dishonoured with the remark "funds insufficient" & "drawers signature differs" respectively vide returning memo dated 18.05.2016 & 21.05.2016 respectively.
It has been admitted in the statement in the notice u/s 251 Cr.P.C of accused recorded on 28.03.2017 that the cheque in questions bears his signatures. Similarly, while recording his statement u/s 281 r/w 313 Cr.P.C on 05.07.2019, accused has stated that he has signed the cheque in question that are drawn on Coorporation Bank and Indian Bank. Thus, the first condition stands proved.
(b) Whether statutory presumption under Section 118 (a) and 139 NI Act that the said cheques were drawn for consideration and the complainant received the said cheques for discharge of CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 9 of 25 any debt or other liability can be raised?
In Hiten P. Dalal Vs. Bratindranath Banerjee, (2001) 6 SCC, Hon'ble Supreme Court of India held that presumption under Section 139 NI Act is a presumption of law, as distinguished from a presumption of fact. It is obligatory on the court to raise this presumption in every case where factual basis for raising of presumption is established.; There is no discretion with the court but to draw the statutory presumption.
10. In Rangappa Vs. Sri Mohan, (2010) 11 SCC 441, Hon'ble Supreme Court of India interepreted Section 139 NI Act as under:
" 27. Section 139 of the Act is an example of a reverse onus clause that has been inclused in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of chequs, the rebuttable presumption under Section 139 is a device to prevent undeu 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 bounding 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 intrepretation of reverse onus clauses and the defendant- accused cannot be expected to discharge an unduly high standard or proof."
CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 10 of 25
11. In Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513, Hon'ble Supreme Court of India held that in a trial under Section 138 NI Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument was executed by the accused, the rules of presumptions under Section 118 and 139 NI Act help him shift burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability.
12. In Rohit Bhai Jivanlal Patel vs. State of Gujarat & Another, (2019) 18 SCC 106, the accused did not deny his signatures on the cheques and that the said cheques were presented to the bank within the period of their validity and returned unpaid for the reason of either the balance being insufficient or the account being closed. Hon'ble Supreme Court of India held as under:
"15.......Therefore, it is required to be presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e. the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the appellant-accused to establish a probable defence so as to rebut such a presumption."
CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 11 of 25
13. In Kalamani Tex and Another Vs. P. Balasubramanina, (2021) 5 SCC 283, Hon'ble Supremene Court of India held that the statue mandates that once the signature of an accused on cheque is established, then these "reverse onus" clause become operative and the obligation shifts upon the accused to discharge the presumption imposed upon him.
14. The appellant has admitted his signatures and account number with respect to cheque in question. As already noted, it is proved that the said cheque was signed by the appellant. Therefore, statutory presumption under Section 118(a) and 139 NI Act that the said cheque was drawn for consideration and the complainant received it in discharge of an existing debt or other liability are drawn against the appellant.
(c) Whether the trial Court rightly presumed existence of legal liability against the appellant?
Ld. counsel for the appellant contended that the trial Court committed a patent error of law in presuming existance of legally enforceable liability of the appellant towards the complainant.
15. In Hiten P. Dalal Vs. Bratindranath Banerjee (supra), Hon'ble Supreme Court of India held that the effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 12 of 25 discharge of any liability.
16. In Bhupesh Rathod vs. Dayashankar Prasad Chaurasia & Anr., Crl. Appeal No. 1105/2021 decided on 10.11.2021, Hon'ble Supreme Court of India held that the words of Section 139 NI Act are quite clear that unless the contrary is proved, it shall be presumed that the holder of the 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.
17. In Rangappa vs. Sri Mohan (Supra), Hon'ble Supreme Court of India held that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat may not be correct.
18. Therefore, the trial Court has not committed any error in presuming existence of a legally enforceable debt or liability against the appellant.
(d) Whether the complainant was required to prove existence of any legally enforceable debt or liability against the appellant?
Ld. Counsel for the appellant contended that the loan amount was not advanced by way of cheque in violation of provisions CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 13 of 25 of Income Tax Act. He contended that there is no agreement or writing regarding advancement of loan. He contended that the complainant did not prove existence of any legally enforceable debt or liability against the appellant.
19. In Bir Singh Vs. Mukesh Kumar, (2019) 4 SCC 197, Hon'ble Supreme Court of India held that the loan was not advanced through banking mode or there was no receipt regarding the said loan would not make any difference and the finding of the High Court that the burden was on the appellant to prove that the had advanced the loan and the blank signed cheque was given to him in repayment of the same was patently erroneous. The finding of the High Court that the case of the appellant was highly doubtful was set-aside as under:
"37. The fact that the appellant complainant might have been an Income tax Practitioner conversant with knowledge of law does not make any difference to the law relating to the dishonour of a cheque. The fact that the loan may not have been advanced by a cheque or demand draft or a receipt might not have been obtained would make no difference.....
39. In our considered opinion, the High Court patently erred in holding that the burden was on the appellant complainant to prove that he had advanced the loan and the blank signed cheque was given to him in repayment of the same. The finding of the High Court that the case of the appellant complainant became highly doubtful or not beyond reasonable doubt is patently erroneous for the reasons discussed above."
CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 14 of 25
20. In Rohit Bhai Jivanlal Patel vs. State of Gujarat & Another (supra), Hon'ble Supreme Court of India held as under:
"20.....Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not.....
22. The result of discussion in the foregoing paragraphs is that the major considerations on which the trial court chose to proceed clearly show its fundamental error of approach where, even after drawing the presumption, it had proceeded as if the complainant was to prove his case beyond reasonable doubt....."
21. In Kalamani Tex and Another vs. P. Balasubramanian (supra), Hon'ble Supreme Court of India held as under:
"14. Once the 2nd appellant had admitted his signatures on the cheque and the deed,the trial court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The trial court fell in error when it called upon the respondent complainant to explain the circumstances under which the appellants were liable to pay. Such approach of the trial court was directly in the teeth of the established legal position as discussed above, and amounts to a patent error of law."
22. The complainant is not required to prove existence of a CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 15 of 25 legally enforceable debt or other liability as if, the complainant is to prove a debt before a civil Court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount.
23. A dishonour of the cheque carries a statutory presumption of consideration. The holder of cheque in due course is required to prove that the cheque was issued by the accused and that when it was presented, it was not honoured. After drawing presumption under Section 118 (a) and 139 NI Act, the onus is shifted to the accused and unless the accused discharges the onus by bringing on record such evidence demonstrating a probable defence, the complainant cannot be called upon to show existence of a legally enforceable debt or other liability.
(e) What is the manner and standard of proof for dislodging presumption under Section 118 (a) and 139 NI Act?
As regards standard of proof for displacing presumption under Section 118 (a) and 139 NI Act, it is settled that the defence has to establish its case on the principle of preponderance of probability.
24. In Rangappa vs. Sri Mohan (supra), Hon'ble Supreme Court of India held that standard of proof for rebutting presumption under Section 139 NI Act is preponderance of probabilities and for that matter, the accused can rely on the material submitted by the CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 16 of 25 complainant, as under:
"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 doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his / her own.
25. In Kishan Rao vs. Shankargouda, (2018) 8 SCC 165, Hon'ble Supreme Court of India held that the accused may adduce evidence to rebut the presumption, but mere denial regarding existence of debt shall not serve any purpose. It was held in para 20:
(Kumar Exports case, SCC p. 520), "20..... The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 17 of 25 evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non- existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist....."
26. Once the signature of the appellant on the said cheque are established, then "reverse onus" clauses become operative. The obligation to discharge the presumption is shifted upon the appellant.
27. The presumptions raised under Section 118 (a) and 139 NI Act are rebuttable in nature. The appellant is required to raise a probable defence and the standard of proof for displacing the presumption is preponderance of probability and not mere possibility. The appellant can lead evidence or rely upon the evidence adduced by the complainant to show non-existence of a legally enforceable debt or other liability or want of consideration.
(f) Whether the appellant is able to raise a probable defense?
CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 18 of 25 Appellant stated that he took a loan of Rs. 70,000/- annd he has already returned Rs. 29,500/- and the cheques in question were blank security cheques after affixing his signatures on the same. In December 2015, he filed a complaint in PS Tilak Nagar and the complainant gave a statement in which he admitted that the loan Rs.70,000/- and accused is liable to pay only the balance remaining amount after deducting payment of Rs. 29,500/-
The defence taken by the accused at the time of notice and during recording of statement u/s 313 Cr.P.C is that he had taken a loan of Rs. 70,000/- and he has already paid Rs. 29,500/-. Further, the accused admitted his signatures but he has taken the defence that it was only blank security cheques and he has not filled the particulars in the cheque. He has admitted that he had already paid Rs. 29,500/- and only balance remains to be paid. However, the accused has not led any defence to prove his stand.
28. CW-01 Sh. Dheeraj Bhola deposed that he knew the accused Sandeep since 3-4 years through one Naresh Kumar and he has provided Rs. 1,40,000/- to Sandeep by cash.His Father, his mother and one Sh. Naresh Kumar were present at the time of making the payment of Rs. 1,40,000/- to the accused. He had friendly terms with the accused, he made the accused Sandeep three to four time prior to the transaction. He asked for a loan on the pretext that he need a printing machine for his business and he had provided the cash CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 19 of 25 to the accused in the denomination of Rs. 500/- and Rs. 1,000/- note and might be Rs.100/- note. Two cheque of Rs. 1,40,000/- was given by the accused as per his convenience. He further denied the suggestion that one cheque dated 16.05.2015 is only signed by the accused and rest of the contents were filled up by him that cheque dated 19.05.2015 is provided blank without sign of the accused to him and further denied the suggestion that the security cheque are not duly filed up by the accused.
CW-02 Naresh Kumar deposed that he know Sandeep and Dheeraj as they are common friends. On 22.03.2015, Sandeep had taken a loan of Rs. 1,40,000/- from the complainant. At that time, he along with complainant and father and mother of the complainant were present at the time of giving of the said amount and the amount was given in cash and it was agreed that the said amount will be repaid on or before 3 months. He denied the suggestion that compromise document signed in the PS in which it is mentioned that Rs. 70,000/- is to be paid by the accused to the complainant.
29. After carefully scrutinizing the testimony of aforesaid witnesses, it is crystal clear that the defence taken by accused is a sham one. In present case, accused has admitted his signature and account number with respect to cheque-in-question. The main defence of the accused is that he has taken a loan of Rs. 70,000/- from the complainant and had repaid Rs. 29,500/- and ready to pay the CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 20 of 25 balance amount to the complainant. The accused has failed to lead any evidence in his defence to prove his defence. Moreover, accused has not placed on record any proof regarding payment of Rs. 29,500/- to the complainant. The accused failed to shake the credibility and veracity of the complainant during cross-examination and therefore, failed to rebut the presumption raised u/s 139 NI Act in favour of the complainant. Here, the admission of signature and account number has itself creates the presumption u/s 139 of NI Act in favor of the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. 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 the probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail.
30. In Sripati Singh vs. The State of Jharkhand & Anr., Crl. Appeal Nos. 1269-1270 of 2021 decided on 28.10.2021, Hon'ble Supreme Court of India held as under:
"16.....If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified time- frame and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 21 of 25 payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow."
31. The complainant presented the said cheques dated 16.05.2016 and 19.05.2016 for encashment within its period of validity. The said cheques were returned unpaid by the banker of the appellant with the endorsement "Funds Insufficient" and "Drawer signature differs" vide bank memo dated 18.05.2016 and 21.05.2016. The complainant issued demand notice dated 03.06.2016 within the prescribed period. The appellant was served with the demand notice. The appellant admitted receipt of demand notice. The appellant failed to make payment of the cheque amount despite receipt of demand notice within statutory period. The complaint was within limitation. The complaint established all pre-requisites as required under Section 138 NI Act.
32. The appellant was rightly convicted for committing offence under Section 138 NI Act. There is no manifest error of law or procedure or perversity in the impugned judgment.
33. On the aspect of sentence, it may be noted that the cheques were returned unpaid by the banker of the appellant with the endorsement "Funds Insufficient" and "Drawer signature differs"
CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 22 of 25 vide bank memo dated 18.05.2016 and 21.05.2016. The complainant issued demand notice dated 03.06.2016 within the prescribed period. and the complaint was instituted on 22.07.2016.
34. In Bhupesh Rathod (supra), Hon'ble Supreme Court of India held that the respondent should be sentenced with imprisonment for a term of one year and with fine twice the amount of the cheque as under:
"29.....The complaint was instituted in July, 2006. Fifteen (15) years have elapsed since then. The punishment prescribed for such an offence under Section 138 of the NI Act is imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both. We are of the view that in the given scenario the respondent should be sentenced with imprisonment for a term of one year and with fine twice the amount of the cheque, i.e. Rs. 3,20,000/-."
35. In Kalamani Tex vs. P. Balasubramanian (supra), Hon'ble Supreme Court of India held as under:
"19. As regards the claim of compensation raised on behalf of the respondent, we are conscious of the settled principles that the object of Chapter XVII of NIA is not only punitive but also compensatory and restitutive. The provisions of NIA envision a single window for criminal liability for dishonour of cheque as well as civil liability for realization of the cheque amount. It is also well settled that there needs to be a consistent approach towards awarding compensation and unless there exist special circumstances, the courts should uniformly levy fine up to twice the CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 23 of 25 cheque amount along with simple interest @ 9% p.a."
36. In the present case, the cheque amounts are Rs. 50,000/- and Rs.90,000/-. The complaint case was instituted on 22.07.2016. The trial Court sentenced the appellant to undergo simple imprisonment for period of two months and also directed the appellant to pay compensation in the sum of Rs. 2,25,000/- to the complainant and in default he shall be liable for simple imprisonment for 15 days.
37. The trial Court has taken lenient view in imposition of compensation. There is no reason to interfere in the quantum of compensation.
38. Accordingly, the appeal filed by the appellant challenging conviction for commission of offence under Section 138 NI Act is dismissed. I find no infirmity in the order passed by the Ld. Trial Court. As per the order of sentence dated 04.08.2022, accused is sentenced for simple imprisonment for two months and is directed to pay compensation to the complainant/respondent herein for an amount of Rs. 2,25,000/- and in default of payment, convict shall undergo simple imprisonment for a period of 15 days. I do not find any reason to interfere with the same. Appellant is directed to pay fine amount before the Ld. Trial Court itself after adjusting the CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 24 of 25 amount already paid, if any.
39. A copy of the judgment along-with trial Court record be sent to the trial Court. Appeal file be consigned to record room.
Announced in the open court (Ambika Singh)
on 01.05.24 ASJ-02/THC, West/Delhi
01.05.24
CR No. 229/2022 Sandeep Chaudhary Vs. State and Ors Page No 25 of 25