Delhi District Court
Sh. Ranbeer Kumar Garg vs State(Nct Of Delhi) on 3 July, 2009
1
IN THE COURT OF SH. SANJEEV AGGARWAL ADDL. SESSIONS
JUDGE: ROHINI COURTS: DELHI
CA No. 3/08
P.S. Rohini
Sh. Ranbeer Kumar Garg
S/o Late Sh. Amrit Lal Garg,
R/o Gali No. 99, H.No. 1443,
Ist Floor, Anaj Mandi, Tri Nagar,
Delhi-110035.
--------Petitioner/Appellant
Vs.
1. State(NCT of Delhi)
2. Sh. Naveen Singla
S/o Sh. Jai Parkash
R/o H.No. 58, Divya Jyoti Apartments
Sector-19, Rohini
Delhi-110035.
--------- Respondent
Date of Institution:27.11.2008
Date of Judgment: 3.7.2009
JUDGMENT
Vide this judgment, I shall dispose off the Criminal Appeal filed by the Appellant/petitioner against the impugned order dt. 27.9.08 convicting the appellant U/s 138 of the Negotiable Instrument Act(hereinafter referred to as the N.I.Act) and the quantum of 2 sentence dt. 29.9.08, sentencing him to undergo SI for one year and also directing him to pay a sum of Rs. 1,25,000/- U/s 357(3) Cr. P.C. to the complainant and in default to undergo SI for two months. (Parties are hereinafter referred to by their respective status, before the trial court).
2. Brief facts which are necessary for the adjudication of the present appeal are:
a) That the complainant filed a complaint U/s 138 of N.I.Act before the trial court, on the allegations that he and the accused were acquainted with each other and that the accused approached him for taking a friendly loan, considering his request the complainant gave him a sum of Rs. 1,09,000/- and the accused assured the complainant that the said amount will be returned to him within 10 months and issued 3 post dated cheques in favour of the complainant for Rs. 20,000/- dt. 4.4.08, Rs. 40,000/- dt. 4.4.08 and Rs. 49,000/- dt. 5.4.08, all drawn on Karur Vyasa Bank Lawrence Road Delhi. It is stated that the said cheques on presentation with the banker of the complainant got dishonoured 3 vide returned memo dt. 30.4.08. Thereafter, the complainant sent a notice of demand dt. 7.5.08 to the accused. Since the accused did not pay up the said amount, therefore, the complainant was forced to file the present complaint before the trial court. Pre-summoning evidence was recorded by the ld. Trial Court on 13.6.08, thereafter the accused was summoned U/s 138 of the N.I.Act. The accused put his appearance and was admitted to bail. Thereafter, on 21.7.08 notice U/s 251 Cr.P.C. was framed against the accused, in which the accused admitted that all the three dishonored cheques bore his signatures and he also admitted that he had received the legal notice dt. 7.5.08.
3. Thereafter, the matter was fixed for complainant's evidence.
Complainant in support of his case has examined himself as CW1. Thereafter, the statement of the accused was recorded U/s 281 Cr.P.C. in which the defence of the accused was that the cheques were part of a cheque book which were lost, for which he had lodged a complaint at P.S. Keshav Puram. The entire cheque book was lost which contained three cheques signed by him and he 4 chose to lead defence evidence.
4. The accused thereafter himself appeared as DW1 in support of his defence and he had also examined one Sh. Parmanand as DW2 and Sh. Amit Goel as DW3.
5. After considering the detailed arguments of the parties vide judgment dt. 27.9.08 the ld. Trial Court found that the complainant had proved the necessary ingredients of the offence U/s 138 of the N.I.Act. Consequently, the accused was convicted U/s 138 N.I.Act and the matter was posted for arguments on the quantum of sentence for 29.9.08.
6. Vide quantum of sentence announced on 29.9.08, the accused/convict was sentenced to undergo SI for one year and he was also directed to pay compensation U/s 1,25,000/- to the complainant and in default he was directed to undergo SI for 2 months. It is against the said order of conviction and sentence, the accused/convict has approached this court on the following main grounds:
A. That the judgment and order of sentence passed by Ld. M.M. is 5 totally against the law, and facts and is bad on facts and law and has been passed without application of mind and is contrary to settled law.
B. That the Ld. Trial Court had failed to appreciate the fact that the accused and the complainant were not having any friendship and the Ld. Trial Court had failed to appreciate the law correctly in this regard.
C. That the Ld. Trial Court had erred in not relying on the arguments of the accused that the cheques were filled in his handwriting except the name of the Payee, while on the other hand failed to appreciate the fact that if the cheques were filled in handwriting of the accused, then what preventing him to fill the name of the complainant, therefore, The cheques were never issued by the accused to the complainant in discharge of any liability.
D. That the Ld. Trial Court has failed to appreciate this fact that the accused had immediately lodged the complaint with the police at P.S. Keshav Puram, which fact has not been considered by the 6 Ld. Trial Court.
E. That the Ld. Trial Court has not taken into consideration the following leading Judgments:
1. AIR 1999 SC 1008 titled as Bharat Barrel and Drum Manufacturing Company Vs. Amin Chad Payrelal;
2. AIR 1961SC 1316 titled as Kundan Lal Rala Ram Vs. Custodian, Evacuee property, Bombay;
3. 2006(6) SCC 39 titled as M.S. Narayana Menon Vs. State of Kerala.
F. It is also stated that the complainant in this case has with held the best evidence from the court by not filing any bank account or Income Tax Return showing that he had ever advanced a sum of Rs. 1,09,000/- to the accused as stated by him and as per settled law for non production of the said evidence an adverse inference has to be drawn against the complainant.
G. Further no legal notice of demand was ever served upon the accused as the complainant himself has admitted that he does not know the address of the accused, therefore, there was no question of serving the legal notice upon the accused by the complainant in 7 these circumstances.
H. Further, it is stated that the case of the complainant is barred by Money Lenders Act and the Punjab Relief of Indebtness Act.
Hence, it is stated that the impugned judgment dt. 27.9.08 and the order of sentence dt. 29.9.08 are contrary to law and are liable to be set aside.
7. I have heard Sh. Vijay Aggarwal ld. Counsel for the accused and Sh. Sunil Mittal Ld. Counsel for the complainant and perused the record.
8. The Ld. counsel for the accused has relied upon the following judgments:
1. Bharat Barrel & Drum Manufacturing Co. Vs. Amin Chand Payrelal, AIR 1999 SC 1008
2. Kundan Lal Rallaram Vs. Custodian of Evacuee Property, AIR 1951 SC 1316
3. Nagisetti Nagaih Vs. State of AP & Anr, 2004 CRL. L.J. 4107
4. C. Manohar Vs. B.R. Poornima, 2005 II AD (CRL) MAD 557
5. Sri Murugan Financiers Vs. P.V. Perumal, 2005 CRL. 269
6. Arvind Manekalal Tailor Vs. State of Guharat, 2000(4) RCR (CRI) 742
7. Angu Parmeswari Textiles (P) Ltd. Vs. Sri Rajam & Co., 2002 (I) BC 99
8. M/s Pawan Enterprises Vs. Satish H. Verma, 2003 CRL. 8
L.J. 2146
9. M/s Pine Product Industries Vs. M/s R.P. Gupta & Sons(Delhi), 2007 (1) JCC (NI) 28
10. Export India & Anr Vs. State & Arn, 137 (2007) DLT 193
11. Shanku Concretes Pvt. Ltd. Vs. State of Gujarat, 2000 CRL.
L.J. 1988
12. M.S Narayan Menon Vs. State of Kerala, 2006 (6) SCC 39
13. Lalan Prasad Vs. State of Jharkhand and others, 2005 (I) AD (Cr.) (JHA) 379
14. M/s Nujjer Agra Food Limited & Ors V/s Nasir Chand & Anr,2004 CRL. L.J. 529
15. Ramesh Rati Lal Tinna Gautam Jayanti Lal Nagarwala, 2002 (2) JCC 1028
16. Bharat Bhai K. Patel Vs. V.C.L. Verma & Anr, 2002 CRL.
L.J. 3469,
17. Voruganti China Gopaiah Vs. M/s Godavari Fertilizers & Chemicals Ltd., 1999 CRL. L.J. 1184
18. K. Prakashan V/s P.K. Surenderan, Appeal (CRL) 1410/2007
19. John K. John Vs. Tom Varghese, Appeal (CRL) 1433- 34/2007
20. M/s Collage Culture Vs. Apparel Export Promotion Council, 2007 (4) JCC (I) 388
21. Birender Singh Vs. State, 2008 (1) JCC 15 (NI)
22. G.Veeraesham Vs. S. Shiva Shankar & Anr, 2008 II AD (ANR.) 320
23. Krishna Janardhan Vs. Dattatraya G., 2008 (1) JCC (NI) 50
24. S. Parminder Singh Vs. Sandeep, 147 (2008) DLT 113
25. G. Parnkajajshi Amma & Ors Vs. Mathai Mathew & Anr, 2004 (12) SCC 83
26. Krishnam Raju Finances Vs. Abida Sulatana, 2004(2) JCC (NI) 30
27. N. Chirag Travelers (P) Ltd. Vs. Ashwani Kumar and Anr, 152 (2008) DLT 637
28. Sudhir Kumar Bhalla V/s Jagdish Chand, Etc., I AD (2009) 9 (Cr.) (SC) 141
29. Ajay Dhir Vs. State And Another, CRL. M.C. NO. 620/2007
30. C. Antony Vs K.G. Raghavana Nair, AIR 2003 SC 182
31. Zahira Habibulla H. Sheikh Vs. State of Gujarat, 2004 CRL.
L.J. 2050
32. Kumar Exports Vs. Sharma Carpets, 2009 II AD (Cr.) 141
33. Bansal Paper Market & Another Vs. State & Anr, 2009 II AD (CR.) (DHC) 389
9. On the other hand Ld. Counsel for the complainant has relied upon the written arguments.
10. Ld. Counsel for the accused has relied mainly upon the judgments Bharat Barrel & Drum Manufacturing Co. Vs. Amin Chand Payrelal, AIR 1999 SC 1008, AIR 1961 SC 1316, M.S. Narayana Menon Vs. State of Kerala - 2006 (6) SCC 39.
The Hon'ble Supreme Court of India in its judgment titled as Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Payrelal - AIR 1999 SC 1008 - has held in its para 11 of page 1015 as under:
".....The defendant may also rely upon circumstantial evidence and if the circumstance so relied upon are compelling the burden may likewise shift again to the plaintiff. He may also rely upon 10 presumption of facts, for instance those mentioned in S 114 and other Sections of the Evidence Act. Under section 114 of the Evidence Act, that The Court may presumed the existence of any fact which it think likely to have happened, regard being had to the common course of natural events human conduct and public and private business, in their relation to the facts of the particular case." Illustration(g) to that Section shows that the Court may presume that evidence which could be and is not produced would, produced, be unfavourable to the person who withholds it. A plaintiff, who says that he had sold certain goods to the defendant and that a promissory note was executed as consideration for the goods and that he is in possession of the relevant account books to show that he was in possession of the goods sold and that the sale was effected for a particular consideration, should produce the said account books, for he is in possession of the same and the defendant certainly cannot be exported to pouches documents. In those circumstances, if such a relevant evidence is withheld by the plaintiff, S. 114 enables the Court to draw a presumption to the effect that, if produced, the said 11 accounts would be unfavourable to the plaintiff.
That the Hon'ble Supreme Court of India in its judgment titled as M.S. Narayana Menon Vs. State of Kerala - 2006 (6) SCC 39 - has held in its para 28 to para 33 as under :
31. A division Bench of this Court in Bharat Barrel & Drum Mfg. Co. Vs. Amin Chand Payrelal albeit in a Civil case laid down the law in the following terms (SCC pp 50-51 para 12) "12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttal. The defendant can prove the no-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal,the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable 12 instrument. The burden upon the defendant of proving the non-
existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the no-existence of the consideration, the plaintiff would invariable be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt.
This court, therefore, clearly opined that it is not necessary for the defendant to disprove the existence of consideration by way of direct evidence.
32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be 13 drawn not only from the materials on record but also by reference to the circumstances upon which he relies.
11. Relying upon the aforesaid judgments, ld. Counsel for the accused has argued that in the present case, the ld. Trial Court in his judgment dt. 27.9.08 had wrongly observed that the evidence lead by the complainant in this case, was sufficient to shift the onus upon the accused and he has argued that once accused appeared in the witness box to lead evidence and showed to the court that the complainant was not even aware about his residential address and he was not having any friendship with him and the very fact that the accused had lodged a prior complaint with the P.S. Keshav Puram shows that the cheques in question had been stolen by some one and were used by the complainant to the disadvantage of the accused and therefore, he has argued that once the accused has discharged the initial onus of proof then defendant should have come out with some positive evidence to prove that the transaction in question was for consideration, which the complainant has failed to prove, as the complainant in his evidence has admitted that the 14 said transaction had taken place in the presence of his father and uncle, who have not been produced in the witness box and who were the best evidence of the complainant, yet, he withheld the said witnesses, therefore, adverse inference has to be drawn against the complainant for holding such a vital piece of evidence. He has also argued that the complainant has no where shown the said amount of Rs. 1,09,000/- in his Income Tax Returns or bank account, or Balance sheets, therefore, the accused by preponderance of probabilities has been able to disprove the case of the complainant that the transactions in question was for consideration. Hence, the accused has disproved the existence of any consideration and therefore, the case of the complainant. The said arguments of ld. Counsel for the accused is without any substance as ld. Trial Court while passing the judgment dt. 27.9.08 seems to be conscious of the said fact and the dictum of law as it has considered the principles laid down in the judgments relied upon by the counsel for the accused above when in para(s)-25, 26 & 28, 29, 30, 31 of the impugned judgment it has been observed by the ld. Trial Court: 15
Cumulative reading of Section 118 and Section 139, NI Act, implies that it has to be presumed that the cheque was issued to consideration and was received in discharge of whole or any other debt or any other liability. The burden to rebut rest upon the shoulders of the accused. Reference in this regard can referred to the judgment of Hiten P. Dalal Vs. Bratendranath Banerjee reported in 2001 AIR SCW 3861 wherein the law on this aspect was stated. It is useful to state the same for the reason that the evidence has to be appreciated as such. The same read as under:
"It is obligatory on the court to raise that presumption in every case where the factual basis, for the raising of the presumption had been established. Such a presumption is a presumption of law, as distinguishable from a presumption of fact which describes provisions by which the court 'may presume' a certain state of affairs. No discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn 16 from rebutting it and proving the contrary".
26. It may be mention herein that the scheme of Section 138 of Negotiable Instrument Act suggest raising of certain presumption; though the same are not against the criminal jurisprudence that accused is presumed to be innocent unless and until proved guilty whereby the onus to disprove certain set of facts is upon the accused person. Reference in this regard also be made to the further reading of the citation titled as Hiten P. Dalal vs. Bartendranath Banerjee reported in 2001 AIR SCW 3861 (Supra) wherein on this aspect Hon'be Apex Court had observed as under:
"In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either 17 believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the "prudent man".
28. There are two versions of the events, one propounded by the complainant and the other propounded by the accused. Complainant seeks the benefit of the statutory presumption. The onus is upon the accused to disprove the said facts (as mentioned above). Evidence is minimal. Complainant has chosen to examine himself and the accused has only chosen to examined himself and two other DWs. However, the said burden upon the accused can be discharged by not only leading cogent evidence but by also cross questioning the complainant, whereby the improbabilities and 18 inconsistency in the case of the complainant can be manifested. The same would not only strengthen the defence evidence but also to a large extent made the statutory presumption U/s 139 of Negotiable Instrument Act.
29. It is contended by Ld. Counsel for complainant that the complainant is entitled to succeed. He further stated that the accused has admitted the factum of having written the cheques except the name of payee. The name of payee on cheque had a cutting which was later on rectified by putting the initials of the accused. The said facts, he submits assumes importance and for that reason alone he is entitled to succeed as genuineness of the cheque are established.
30. He also argued that the defence of the accused is preposterous. It is inconceivable that when the accused is ill. Somebody would steal the cheques. He also argued that in that eventually, any such person would promptly and immediately approach the police or should have pursued the criminal complaint with vigour and zeal. He submits that the loan was taken and cheques were given as PDC. Legal notice was sent at the correct 19 address, same was received. So much so as abundant precaution, he had obtained documents from the post office to suggest the delivery of notice.
31. He further submits that not only the defence of the accused is vague and the accused has deliberately made false statement, in his examination in chief. He had stated that the cheque of Rs. 20,000/- bore the cutting because earlier "Amit Goel" was to be written whereas the perusal of the cheque suggest that the cheque was written as 'Naveen Singhla' and stand taken by the accused was blatantly false.
12. Therefore, in view of the said observations made by the ld. Trial Court in para-28 of the impugned judgment, this argument of ld. Counsel for the accused that the accused has been able to discharge his burden of proof on preponderance of probabilities is not tenable.
13. The proposition of law, which emerges from the judgments relied upon by the ld. Counsel for the accused persons is that N.I.Act raised two presumptions firstly, in regard to the passing of 20 consideration U/s 118(a) and secondly, a presumption that the holder of cheque had received the cheque in discharge of any debt or liability in whole or part and both the presumptions raised U/s 118(a) and 139 of the N.I.Act are rebutable in nature.
14. Further the standard of proof as far as the prosecution is concerned is proof of guilt beyond doubt and onus on the accused is mere preponderance of probabilities and such inference can be drawn not only on the material brought on record by the parties but also with reference to the circumstances upon which they rely.
15. Taking afore broad propositions in mind, even then, from the evidence lead on the trial court file it appears that the accused in the present case, has failed to succeed on preponderance of probabilities, as the accused has failed to show from the evidence lead on the trial court record, that there were inherent defects and inconsistency in the case of the complainant which could disprove the case of the complainant and thereby proving the defence of the accused.
16. In the present case, inconsistent defence has been taken 21 by accused, on one hand a suggestion was given in the cross- examination of CW1 recorded on 11.8.08 "It is incorrect to suggest that cheques in question were kept as security purposes" and on the other hand during the cross-examination carried out on the same day a suggestion was given "It is incorrect to suggest that cheques in question were misplaced by the accused and the accused had filed a criminal complaint qua the same at Keshav Puram". Very nature of suggestions given by accused to CW1 as referred above that the cheques in question were given to the complainant as a security, shows that the accused admits that the cheques in question were given to the complainant and was not misplaced by the accused, as per his version.
17. Further, the accused while appearing as DW1 has admitted, that while he was ill and bed ridden he had drawn three cheques for the sum of Rs. 49,000/-, Rs. 40,000/- and Rs. 20,000/- respectively and all the cheques were signed and amount was filled up, therefore, it shows that the cheques were signed and the amount was also filled up in the handwriting of the accused. 22 Though, it is further case of the accused that he had to give one cheque to one Pamanand and second to one Amit Goel and third he had drawn for the fees of his son and he has in this regard has also produced two DWs. DW1 and DW2. However, both of them are self serving witnesses of the accused, as both the said witnesses are of hearsay evidence and they are not the witnesses of the transaction in question.
18. Regarding the version of the accused that he was ill when he drew the three cheques and therefore, he had filled up three cheques to be given to three persons which were stolen, the said defence appears to be totally improbable, as no medical evidence/documents has been produced on record by the accused, as to what was the ailment with which he was suffering at that time nor any period of his confinement to bed has been mentioned. It is also not clear if the name of the Payee was certain, then what stopped him to fill up the name of the payee in the said three cheques, as the accused has himself admitted while appearing as DW1 that he had filled up the amount and the cheques were also 23 signed by him at the time of drawing the same.
19. Further, DW1/1 is the complaint allegedly made by the accused to the chowki incharge P.S. Keshav Puram on 20.3.08. Same is Ex.DW1/1 but the said complaint has not been proved as per the provisions of Indian Evidence Act, as it is settled law that mere exhibition of the document, does not dispense with the proof of the said document, as per the Indian Evidence Act, the said document DW1/1 has not been proved as per the Indian Evidence Act, as no witness has been produced from the P.S. Keshav Puram to prove that the said complaint had indeed been received at P.S. Keshav Puram and the witness from the record should have proved the said complaint. In the absence of the same the said complaint Ex.DW1/1 is a worthless piece of paper.
20. Further, the said complaint is dt. 20.3.08, whereas the cheques in the present case were presented and dishonoured on 30.4.08, it is not clear what prevented the accused from instructing his banker to stop the payment, pertaining to the said three cheques, when as per him the said cheques had been stolen or 24 misplaced as early as 20.3.08, the perusal of the bank returning memos Ex.PW1/D, Ex.PW1/E and Ex.PW1/F show that the cheques in question have been dishonoured for insufficient funds and not for other reasons like stop payment etc.
21. Further the Judgment 2008(1) JCC (NI) 50 and 2007 (4) JCC (NI) 357 are not applicable to the peculiar facts and circumstances of the present case, as discussed above. During the cross-examination of CW1 a suggestion was given by the accused that the cheques in question were kept for security purposes and the accused has also admitted that he had signed the three cheques and the amount was also filled up by him, therefore, the execution of the three cheques in question Ex.CW1/A, CW1/B and Ex.CW1/C is not disputed by the accused.
22. Further no witness from P.S. Keshav Puram has been produced to prove the complaint dt. 20.3.08 as discussed above. Further the demeanour of the accused is also far from satisfactory, as when the notice U/s 251 Cr.P.C. was put to him on 21.7.08 at that time, he admitted that he had received the legal demand notice 25 dt. 7.5.08, whereas in his statement U/s 281 Cr.P.C. recorded by the Ld. Trial Court on 23.7.08, he stated that he did not receive any legal demand notice. Therefore, it appears that the accused was not a truthful witness.
23. Further, as per the cross-examination of CW1 it has come that the complainant was doing a private job in Cipla Co. Consequently, there was no question of him maintaining any books of account. Therefore, in view of the categorical admissions made by the accused and also in view of the nature of suggestions given by the accused during the cross-examination of CW1, the complainant has been able to prove due execution of the cheques Ex.CW1/A to Ex.CW1/C, for a consideration.
24. Regarding the notice of demand dt. 7.5.08 Ex.CW1/G as discussed above when the notice U/s 251 Cr.P.C. was framed before the trial court, the accused admitted that he had received the legal notice dt. 7.5.08, however, lateron he resiled from the said statement, when his statement U/s 281 Cr.P.C. was recorded on 23.8.08 therein he stated that he had not received the said notice. 26 However, the said notice has been proved as Ex. CW1/G in the evidence of CW1 and no suggestion has been given in the cross- examination of CW1 that the address written on the said notice was incorrect and it is also not case of the accused that his address written on postal receipt Ex.CW1/H was also incorrect and it is settled law that a registered letter addressed to a addressee at his correct address, is deemed to have been delivered to the addressee, unless the addressee leads evidence to the contrary that certain extraordinary circumstances/events prevented it to reach its proper destination. In the present case lateron one letter mark Y was filed on the trial court record on 17.9.08, which was put to the DW1 in his cross-examination. However, he denied that he had received the notice dt. 7.5.08. The said mark Y is the confirmation letter from the Department of Posts to the counsel for the complainant, regarding the delivery of postal letter dt. 7.5.08 vide receipt no. 6417. The said letter from the postal departmental also confirms the version of the complainant that the said demand notice dt. 7.5.08 had indeed been duly served upon the accused. 27
25. Regarding the arguments of ld. Counsel for the accused that present case is barred by Money Lenders Act and Punjab Relief of Indebtness Act, 1934. The said argument of the ld. Counsel for the accused is without any substance, as no evidence has been lead by the accused on the record, to show that complainant was habitually lending loan to different persons and was a money lender within the meaning of said Act. Accordingly, the loan transaction can not be labeled as a money lending transaction, as there is no evidence on the record, to lead to an inference that the accused was habitually lending loan to different persons or was indulging in such activities.
26. Regarding the next argument of ld. Counsel for the accused, that the best evidence in this case namely, the father of the complainant and his uncle have not been produced as a witnesses, therefore, adverse inference has to be drawn against him. The said argument of ld. Counsel for the accused is without any substance, as it is settled law that it is not the quantity of evidence but the quality of evidence which is necessary to prove a 28 particular case. In the present case even without producing his father and uncle, the evidence produced by the complainant is sufficient to prove his case that he had extended a friendly loan to the accused and the accused in discharge of his said loan had given him three cheques for total amount of Rs. 1,09,000/- and which cheques on presentation were dishonored.
27. Consequently, the complainant has been able to prove its case U/s 138 of N.I.Act as the version of accused appears to be totally improbable as discussed above. In any case it is settled law that in a criminal appeal against conviction, the appellate court, under this section can dismiss the appeal, if the court is of opinion that there is no sufficient ground for interference after examining all the grounds urged before it for challenging the correctness of the decision given by the trial court. It is not even necessary for the appellate court to examine the entire record for the purpose of arriving at an independent decision of its own whether the conviction of the appellant is fully justified. Therefore, the Judgment and quantum of sentence dt. 25.09.08 and 27.9.08 does 29 not suffer from any infirmity, illegality and the impugned judgment is well supported by the reasons given in support of the same and the quantum of sentence dt. 29.9.08 imposing a Simple Imprisonment of one year and besides directing the convict/appellant to pay compensation of Rs. 1,25,000/-(One Lakh Twenty Five Thousand) to be paid to the complainant cannot be said to be excessive by any stretch of imagination taking into account the spirit for which the Section 138 of the N.I.Act was enacted. Hence, this appeal has no merits, same is dismissed. Appeal file be sent back to record room after completion of all formalities. TCR be sent back immediately. A copy of this order be sent to the concerned trial court.
Announced in the open court (Sanjeev Aggarwal)
on dt. 3.7.09 Addl. Sessions Judge:
Rohini Courts: Delhi.