Delhi District Court
Sh. Chanchal vs Ms. Geeta Singh on 17 March, 2023
IN THE COURT OF MANOJ JAIN,
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH-WEST, DWARKA COURTS, NEW DELHI
CA No. 161/2022
CNR No.-DLSW01-005023-2022
Sh. Chanchal .....Appellant
S/o Sh. Jasmer Singh Lochab,
R/o H No. 34A, Village Bamnoli
Sector 28, Dwarka,
New Delhi
Versus
Ms. Geeta Singh .....Respondent
W/o Captain Sh. V.P. Singh
R/o H No. A-701, Hindh Apartments,
Sector 5, Plot No. 13,
Dwarka, New Delhi 110075
Date of Registration of Appeal : 20.05.2022
Date of conclusion of arguments : 14.03.2023
Date of pronouncement of Decision : 17.03.2023
Memo of appearance:
Sh. Manobal Gupta, Ld. Counsel for the appellant.
Sh. Subhash Chander, Ld. Counsel for the respondent.
JUDGMENT:
1. Accused Sh. Chanchal has filed an appeal u/s 374 Cr.P.C challenging his conviction u/s 138 Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act) and consequent order on sentence.
2. Trial court record has been requisitioned.
CA No.161/2022 Chanchal Vs. Geeta Singh Page 1 of 183. For the sake of convenience, I would be referring to the parties as per their nomenclature before the Ld. Trial court. Therefore, the appellant would be referred to as 'accused' and respondent as 'complainant'.
4. Trial court record would indicate that complainant Ms. Geeta Singh had filed a complaint u/s 138/142 of NI Act against accused Sh. Chanchal. As per averments appearing in the complaint, there were good family relations between the parties and pursuant to such relationship, accused had taken a total sum of Rs. 19 lacs from the complainant on different dates and in discharge of his such legal debt/liability, the accused had issued two cheques i.e cheque no. 000033 and 000034 each dated 02.03.2017 for a sum of Rs. 10,00,000/- and Rs. 9,00,000/- respectively drawn on HDFC Bank , Sector 28, Dwarka. Both such cheques, when presented for encashment, returned unpaid with the remarks 'funds insufficient' vide memo dated 07.03.2017. Complainant sent a legal notice to the accused which he refused to accept and it is in the aforesaid background that the present complaint was filed.
5. After recording of pre-summoning evidence, the Ld. Trial court summoned the accused for commission of offence u/s 138 NI Act vide order dated 01.06.2017. Accused put in appearance before the Ld. Trial court and was served with notice u/s 251 Cr.P.C on 22.07.2017. He pleaded not guilty and claimed that he had not taken any loan whatsoever from the complainant. He also claimed that the cheques in question were not signed by him. However, as regards legal notice, he claimed that he had CA No.161/2022 Chanchal Vs. Geeta Singh Page 2 of 18 received the same.
6. Complainant entered into witness box and was cross- examined by ld. Defence counsel.
7. Statement of accused was recorded u/s 313 Cr.P.C read with Section 281 Cr.P.C in which he claimed as under:-
"The signatures on cheque are not mine. Neither have I filled the particulars. Although the cheques belong to me. I did not come to know about dishonour, neither did I receive any legal notice. Although, the address mention on legal notice Ex. CW1/5 is mine. Complainant had some dealing with my brother and one day she had visited my home. My cheques were lying and she took them and misused them. I had even filed a complaint regarding misplacement of my cheques. This is a false against me. I had never taken any loan from the complainant".
8. The accused did not desire to lead any evidence in defence.
9. The arguments were heard by the court of Sh.
Apoorv Bhardwaj, Ld. MM-08, South-West and it held the accused guilty vide judgment dated 31.03.2022, observing that the accused had set up a wholly untenable, contradictory and unreliable defence and it failed to rebut the presumption. Ld. Trial court held that though the accused had not admitted his signatures on the cheques in question, it prima facie stood proved that these were bearing his signatures. Ld. Trial court further held that there was statutory presumption in favour of the complainant and accused has not been able to prove his defence, even on the scale of preponderance of probabilities. It held that since a sum CA No.161/2022 Chanchal Vs. Geeta Singh Page 3 of 18 of Rs. 6 lacs had been transferred by the complainant to the accused through bank transfer, the accused could not have taken plea that he was unfamiliar with the complainant. It also observed that accused himself had placed on record material to show that his brother had some transaction with the complainant. It, therefore, held that the parties were well-acquainted with each other and had financial dealings also.
10. The cheques in question were of Rs. 19 lacs. Ld. Trial court, vide order dated 21.04.2022, did not impose any substantive sentence of imprisonment and rather directed him to pay a fine of Rs. 20 lacs within 30 days and in default thereof to undergo SI for a period of one month. It also directed that such fine would be, in its entirety, payable to the complainant, as compensation.
11. The aforesaid order of conviction dated 31.03.2022 and order on sentence dated 21.04.2022 are under challenge before me.
12. Sh. Manobal Gupta, Ld. Counsel for the appellant has assailed the findings given by the ld. Trial court, inter-alia, on the following grounds:-
i. There was no friendly relation between the parties and there was no reason or occasion for the complainant to have advanced such huge amount to him.
ii. There is nothing on record which may indicate that the complainant had paid a sum of Rs. 7,93,400/- by way of cash. iii. It is admitted that the accused had received a sum of CA No.161/2022 Chanchal Vs. Geeta Singh Page 4 of 18 Rs. 6 lacs from the complainant through RTGS but it is supplemented that part of the aforesaid amount was returned in cash to the complainant.
iv. The complainant has not placed any material on record to show source of money. She has also not placed on record any ITR in order to show that any such loan amount was reflected by her in ITRs.
v. The complainant was having some dealing with the brother of the accused and one day, she visited the house of the accused where cheques in question were lying and complainant took such cheques with her and has used the same in a dishonest manner for which accused had already lodged a complaint against her.
vi. The manner of recording of statement of accused u/s 313 Cr.P.C is also not in the prescribed manner.
vii. If the complainant is to be believed then she had provided financial help of Rs. 19 las spread over a period of 10 months and she has not bothered to explain as to why she kept on providing him financial aid regularly without bothering to ensure that previous alleged financial aid was still not cleared.
13. Ld. Counsel has relied upon K Subramani Vs. K Damodar (2015) 1 SCC (CRL) 576, Leena Kataria Vs. State & Anr., 266 (2020) DLT 630, Ram Yudhishter Yadav Vs. Jair Prakash Garg, 256 (2019) DLT 83, Pushpa Devi Vs. Smt Sushila, 2018 (3) JCC (NI) 177,Mahesh Chand Sharma Vs. Hari Chander, 2018 (4) JCC (NI) 249 and K Prakashan Vs. P.K. Surenderan, (2008) 1 SCC 258.
CA No.161/2022 Chanchal Vs. Geeta Singh Page 5 of 1814. Sh. Subhash Chander, Ld. Counsel for the respondent has refuted all the aforesaid contentions.
15. According to him, Ld. Trial court has appreciated the entire matter in accordance with the settled position regarding appreciation of evidence and in accordance with law. According to him, it was a fit case where the statutory presumptions were invoked. Such presumptions could not be dislodged by the accused in any manner whatsoever. There is nothing in the cross- examination of the complainant which may create any kind of doubt or suspicion in the correctness of the case of complainant. The accused has apparently taken false plea that there was no transaction between them despite the fact that substantial amount was transferred through online banking process. He has also contended that the financial capability and capacity of the complainant cannot be doubted in the given factual matrix. It is also contended that as a last ditch effort, the accused has shown the audacity of churning out a false stereotyped story that his cheques had been stolen and misused. He has not able to even probabilize his such defence even such fact in any manner whatsoever. So much so, he has not even bothered to enter into witness box. It has therefore been prayed that appeal may be dismissed, right away.
16. I have given my thoughtful consideration to the rival contentions and carefully perused the entire record.
17. The present case is under NI Act and the appellant cannot shy away from invocation of statutory presumptions CA No.161/2022 Chanchal Vs. Geeta Singh Page 6 of 18 thereof. NI Act incorporates two important presumptions. As per section 118(a) until the contrary is proved, the presumption shall be made of consideration that every negotiable instrument was made or drawn for consideration. As per Section 139 of NI Act, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. Indisputably, appellant can always rebut the same. In Rangappa v. Sri Mohan (2010) 11 SCC 441, a three Judge Bench of the Hon'ble Supreme Court observed that if the accused in a complaint under Section 138 of the NI Act admits his signatures on the cheque, presumption that the cheque pertains to a legally enforceable debt or liability arises under Section 139 of the NI Act. Such presumption is rebuttable in nature and the onus is on the accused to raise a probable defence. While explaining the nature of presumption given under section 118(a) of the NI Act, the Hon'ble Supreme Court in Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal, (1999) 3 SCC 35 held as under:-
"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 rebuttable. The defendant can prove the nonexistence 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 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 CA No.161/2022 Chanchal Vs. Geeta Singh Page 7 of 18 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 non- existence of the consideration, the plaintiff would invariably 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. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, shall act.; upon the plea that it did not exist."
18. In Basalingappa v. Mudibasappa, (2019) 5 SCC 418, the Hon'ble Supreme Court, after evaluating various precedents, summarized the principles as under: -
"25 We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:
25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.CA No.161/2022 Chanchal Vs. Geeta Singh Page 8 of 18
25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come in the witness box to support his defence."
19. It is thus settled law that the burden to rebut the presumption under Section 139 NI Act is on the accused. Such burden is, admittedly, to the extent of "preponderance of probabilities". It has also repeatedly been observed that the accused can rely on the evidence brought on record by the complainant to rebut the presumption, and it is not necessary that he must lead separate/direct evidence. For substantiating plea of non-existence of consideration or there being no liability at all, appellant is required to bring some material or had to demonstrate hollowness in the case of complainant. Mere bald and unsubstantiated assertions shall never be sufficient to disprove the presumption. Thus, accused is obliged to set up a probable defence. It cannot be premised on the mere ipse dixit of the accused.
20. Reference be also made to Lekh Raj Sharma v. Yash Pal Gupta 2015 SCC OnLine Del 10074 wherein our own High Court has held that once the signatures on the cheques is admitted, accused cannot escape his liability on the ground that the same had not been filled in by him. When a blank cheque is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blanks which he had left. It is also held therein that non- disclosure of loan amount in the Income Tax Return may be infraction of provisions of Income Tax Act but still it would be a CA No.161/2022 Chanchal Vs. Geeta Singh Page 9 of 18 matter between the revenue and the defaulter and thus advantage thereof cannot be taken by the borrower. Thus, the accused cannot claim exoneration on said ground.
21. In the case in hand, it is quite evident that accused has not admitted his signatures on the cheques in question. When he was served with notice u/s 251 Cr.P.C, he, outrightly, denied that he had availed any loan from the complainant. He also claimed that these cheques were neither signed by him nor were in his handwriting. However, he did not divulge or reveal any other fact. When complainant entered into witness box, he, for the first time, suggested to her that she had visited her house on 27.06.2016 and had stolen some of his cheques and had misused the same, as well. If he is to be believed then his signatures were also forged on the cheques by the complainant.
22. Fact remains that he has simply given suggestions in his regard to the complainant. For the reasons best known to him, he did not care to substantiate the aforesaid material fact in any manner whatsoever. If the cheques were not bearing his signatures, he could have easily placed on record his admitted signatures for necessary comparison by the court. He could have also summoned handwriting expert. He could have also called the official from his own bank in order to draw attention of the court to the manner in which he used to sign, if he was of the view that his signatures have been forged by someone else. It also needs to be noticed that the cheques were returned unpaid on account of insufficiency of funds and not for difference in signatures and, therefore, the Ld. Trial court was fully justified in CA No.161/2022 Chanchal Vs. Geeta Singh Page 10 of 18 placing reliance upon L.C Goyal Vs. Suresh Joshi, (1999) 3 SCC 376. To make the things worse, he did not even bother to enter into witness box. Mere wild and unsubstantiated suggestion would not serve the requisite purpose and in the present peculiar factual matrix of the case, it was rather obligatory and incumbent on his part to have at least entered into witness box and to have substantiated his theory of cheques, being stolen away and misused.
23. Admittedly, it is not always imperative for the accused to enter into witness box. In Krishna Nanardhan Bhat Vs. Dattatreya G Hegde (2008) Vol. II SCC Crl 166, the Hon'ble Supreme court had observed that any such accused, for discharging the burden of proof placed upon him, need not examine himself as he has constitutional right to maintain silence. However, it has also been, simultaneously, observed therein that he may discharge his such burden on the basis of material already brought on record. In the present case, as already noticed above, there is nothing in the cross-examination of the complainant which may show that the accused had been able to probabilize his defence.
24. Moreover, accused had claimed in his statement that there was some dealing between his brother and complainant. He should have, to bring home the above, asked his brother to enter into witness box. Even that was not contemplated which makes his version untrustworthy and fanciful. I have seen the affidavit submitted by the complainant when she led her evidence. Such affidavit has been proved as Ex. CW1/A. In such affidavit, she CA No.161/2022 Chanchal Vs. Geeta Singh Page 11 of 18 categorically claimed that she was having good family relation with the accused and in pursuance of such good terms, the accused had given Rs.19 lacs to accused on different dates and in discharge of his such legal debt/liability, he had issued such two cheques. In her such affidavit, she also gave details about the manner in which she had advanced loan. Undoubtedly, on few occasions, the loan had been disbursed by way of cash but, at the same time, a sum of Rs. 6 lacs was transferred through RTGS in the account of accused and this becomes obvious from the copies of her passbook of Bank of Maharashtra where the RTGS entry is reflected indicating that a sum of Rs. 6 lacs had been transferred online in the account of accused. The copies of all such bank account of complainant have been proved as CW1/4 collectively and for totally inexplicable reasons, there is no suggestion to the contrary. Rather according to specific defence taken by the accused, there was no family relationship between the parties and he had never been given any loan at all. If that was really so, he should have rebutted the aforesaid entry but as already noticed not even a single question has been put by him in this regard. Of course, the complainant in her cross-examination could not answer as to where the accused had studied and what were the names of his relatives but that, by itself, would not mean and indicate that there was never any transaction between the parties.
25. The copies of passbooks placed on record clearly indicate that the complainant had potential to advance the loan.
26. As regards legal notice, the accused has taken a somersault. When he was served with notice u/s 251 Cr.P.C, he CA No.161/2022 Chanchal Vs. Geeta Singh Page 12 of 18 categorically admitted having received the same but when he was examined u/s 313 Cr.P.C he claimed that he did not receive any legal notice. He has not been able to explain the aforesaid anomaly either before the Ld. Trial court or before this court.
27. Sh. Manobal Gupta, Ld. Counsel has also contended that the manner in which his statement u/s 313 Cr.P.C was recorded was inappropriate. I, however, do not find any anomaly. Ld. Trial court is the court of Metropolitan Magistrate and any such court, by virtue of Section 281 Cr.P.C., can always record the examination of accused by making the memorandum of substance of such examination and such examination is required to be signed by the Magistrate. In the present case, the entire incriminating evidence was put to the accused and his answers were recorded in the shape of memorandum which, he himself, had also signed. Moreover, such statement of accused was recorded in the presence of his counsel and if he was of the view that there was any kind of prejudice or that he was not able to understand the implication thereof, his counsel could have easily drawn attention of the court in this regard. It seems to me that such objection has been taken only for the sake of escaping, somehow, from the clutches of law.
28. According to Sh. Gupta, the accused did not even fill up other details and such aspect cannot be lost sight of. I have seen cross-examination of the complainant and in her such cross- examination, she, indeed, admitted that such particulars in the cheque had been filled up by her. However, this does not make the case questionable or dubious. As per Section 20 of NI Act, if CA No.161/2022 Chanchal Vs. Geeta Singh Page 13 of 18 any such person delivers any such blank cheque to some other person, he thereby gives prima-facie authority to holder thereof to fill up the other particulars. I have already noticed that the defence that the cheques had been stolen and cheques were not bearing his signatures is not believable at all. Since his such defence theory is liable to be rejected, as a necessary corollary, it is to be assumed that the cheques in question were bearing his signatures. Once such fact is deemed to be admitted, there is no escape for the accused and he cannot run away from the statutory presumptions.
29. I may also point out right here that once statutory presumptions stand admitted, the accused is estopped from even questioning the complainant about her source of procurement of loan amount in question. Reference be made to Rohitbhai Jivanlal Patel Vs. State of Gujarat & Anr., (2019) 18 SCC 10 and P. Rasiya Vs. Abdul Nazer & Anr. 2022 SCC Online SC 1131. In view of the aforesaid two judgments and keeping in mind the peculiar factual matrix of the present case, the appellant cannot dig out any advantage from K. Subramani (supra).
30. As regards, aspect related to source of funds available with the complainant, reference may rather be made to P. Rasiya Vs. Abdul Nazer & Anr. 2022 SCC Online SC 1131 and Rohitbhai Jivanlal Patel Vs. State of Gujarat & Anr., (2019) 18 SCC 10. In Rophitbhai (supra), Hon'ble Apex Court observed as under:-
"In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court CA No.161/2022 Chanchal Vs. Geeta Singh Page 14 of 18 proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the accused-appellant. The aspect relevant for consideration had been as to whether the accused-
appellant has brought on record such facts/material/circumstances which could be of a reasonably probable defence."
31. Sh. Manobal Gupta, Ld. counsel has relied upon Ram Yudhishthir Yadav (supra). However, in that case, the situation was different as therein, the accused had claimed that he had cleared the entire dues already and that the cheques were misused. In said case, complainant had also admitted that he did not know the accused personally and had advanced the loan on the asking of his one friend but such fact was never revealed by him in his complaint and affidavit. In said case, the date of advancement of loan and issuance of cheques were also not mentioned in the complaint or affidavit and, therefore, the aforesaid case is clearly distinguishable.
32. In Leena Kataria(supra), the fact scenario was different and accused was able to rebut the presumption which resulted in acquittal. No advantage can be drawn from Pushpa Devi (supra) as therein the trial court had acquitted the respondent on the ground that the cheques were not filled by the respondent as she only knew how to sign and also because, no CA No.161/2022 Chanchal Vs. Geeta Singh Page 15 of 18 document was prepared regarding the transaction and there was no witness to handing over of the money to the respondent or issuance of cheque by her. Here, the part transaction is through online bank transfer which fact could not be rebutted. The accused herein, on one hand, denied any transaction with complainant and on the other, could not offer any explanation as to how there was online transfer of substantial money in his own account from the bank of complainant. In Mahesh Chand Sharma (supra), the defence of the respondent that he had taken loan which he had returned and the cheque in question was given as a security cheque which was signed by him but he had not filled the particular seemed to be a plausible view, which resulted in acquittal. The settled legal position is not at all disputed but keeping in mind the manner in which the appellant has cross- examined the complainant and has not bothered to lead any evidence in defence, he cannot extract any benefit from the judgements cited at the Bar.
33. Accordingly, the order on conviction is upheld.
34. As regards sentence, I would not hesitate in mincing any words that the appellant has been let off with virtually a slap on the wrist. The cheques in question were of Rs. 19 lacs and the maximum sentence could extend upto SI for two years and fine/compensation up to Rs. 38 lacs. There is no substantive sentence and fine amount is also Rs. 20 lacs. Unfortunately, there is no cross-appeal from the side of complainant, Be that as it may, it is not possible to further reduce the sentence.
CA No.161/2022 Chanchal Vs. Geeta Singh Page 16 of 1835. However, during the pendency of appeal, the accused had deposited a sum of Rs. 3 lacs in the shape of FDRs. Let said amount be released in favour of the complainant in terms of Section 148 of NI Act and steps be taken accordingly by the complainant.
36. Accordingly, the order on sentence is hereby modified to the aforesaid extent and the amount of fine stands reduced to Rs. 17 lacs. However, at the same time, the appellant is granted time of 30 days' from today to pay such amount of fine which would be payable, in its entirety, to the complainant as compensation. He would accordingly appear before the Ld. Trial court on 17.04.2023. In case, such amount is not paid and the appellant does not obtain any relief from the Hon'ble High Court either, the Ld. Trial court would take him into custody so that he undergoes in-default sentence of a period of one month.
37. In Kumaran v. State of Kerala, (2017) 7 SCC 471, it has been held that if default sentence, in lieu of payment of compensation, is served, compensation shall still be recoverable. It is also held that even though a default sentence has been suffered, yet, compensation would be recoverable in the manner provided under Section 421(1) supplementing that the same would, however, be without the necessity of recording any special reasons. Therefore, in case, the compensation is not paid and in default sentence is also served, the Learned Trial Court shall be at liberty to take recourse to sec 421 Cr.P.C.
CA No.161/2022 Chanchal Vs. Geeta Singh Page 17 of 1838. The Appeal stands disposed of accordingly.
39. A copy of this judgment be given to the appellant, free of cost.
40. Trial Court Record be sent back along with a copy of this judgment.
41. Appeal file be consigned to record room.
Digitally
signed by
MANOJ JAIN
MANOJ
Announced in open court JAIN
Date:
2023.03.17
14:52:53
On 17.03.2023 (sv) +0530
(Manoj Jain)
Principal District & Sessions Judge:
South West District
Dwarka Courts/Delhi
CA No.161/2022 Chanchal Vs. Geeta Singh Page 18 of 18