Delhi District Court
Virender Singh Rawat vs State And Anr on 29 August, 2024
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CA No. 232/2019 CNR No. DLCT01-005798-2019
VIRENDER SINGH RAWAT
S/O SH. TEJ SINGH RAWAT
R/O H. NO. AP-96B, PITAMPURA
DELHI. ......... Appellant
Versus
1. STATE (Deleted from the array of
parties vide order dated
09.08.2023)
2. SMT. PREM LATA
W/O SH. PURSHOTTAM,
R/O H.NO. B-1012, GALI NO. 30
MAIN SANT NAGAR, BURARI
DELHI-110084. ......... Respondents
Date of Institution : 01.05.2019
Date of Judgment reserved on : 13.08.2024
Date of Judgment : 29.08.2024
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
CA No. 232/2019 Virender Singh Rawat Vs. State & Anr. Page 1 of 191. The present judgment shall decide appeal filed by appellant/convict Virender Singh Rawat. It is submitted that the case of the prosecution is that the respondent no. 2 filed a complaint case u/s 138 N.I. Act with the allegations that the appellant and the husband of respondent no. 2 are having friendly relations since last 8-10 years and appellant has been visiting the house of the respondent no. 2 on regular basis. It has been further stated that the appellant is running a shop in the name of Rawat Vastra Bhandar in Main Market, Sant Nagar, Burari, Delhi and appellant was in a habit of taking loan from the respondent no. 2 for his business purpose. It is stated that the appellant in the month of March, 2007 approached the respondent no. 2 and demanded for a loan of Rs. 2,50,000/- and assured the respondent no. 2 that he will return the said loan within the period of six months. On the assurance of appellant, respondent no. 2 gave loan amount of Rs. 2,50,000/- on interest @ 24% per annum. It is further averred that after expiry of six months, when the respondent no. 2 requested to the appellant in the month of September to pay the loan amount of Rs. 2,50,000/- to which appellant showed his inability to pay the loan amount and requested to give some more time and again assured the respondent no. 2 to pay the loan amount within six months and issued a cheque bearing no. 2,50,000/- drawn on State Bank of India dated 24.03.2008 Branch at Gulabi Bagh, Delhi and assured the respondent no. 2 to present the same in her Bank and it will definitely encashed. It is further stated that on the same day CA No. 232/2019 Virender Singh Rawat Vs. State & Anr. Page 2 of 19 appellant requested the respondent no.2 not to present the said cheque. The above fact are pleaded by the respondent no.2 in her complaint as complainant.
2. In the appeal, the grounds are raised by the appellant against the judgment of Ld. Trial Court dated 06.04.2019 and the order on sentence dated 08.04.2019. It is submitted by the appellant that he is falsely implicated in the present case and has pleaded for grant of probation. It is pleaded by the appellant that he had given the cheque to the husband of respondent no. 2 on his request. The request was that the husband of respondent no. 2 had to show the cheque to some of his creditor so that his creditors would be assured of the fact that the husband of respondent no. 2 is about to get some money / payment which could be returned to the said creditors on receipt. The appellant is friend of husband of respondent no. 2. The cheque was given by filling the amount and after putting signature. The cheque was not returned by husband of respondent no. 2 despite many requests. The cheque was further not returned on the pretext that the husband of respondent no. 2 had lost or has put the said cheque somewhere which is not traceable. On such assurance that the cheque never be presented by husband of respondent no. 2, the appellant closed his Bank Account. The debt was not legally recoverable. It is prayed that the judgment and sentence of the Ld. Trial Court may be set aside and the appellant may be acquitted u/s 138 N.I. Act.
CA No. 232/2019 Virender Singh Rawat Vs. State & Anr. Page 3 of 193. The appellant was directed vide order dated 10.03.2022 to deposit 20% compensation awarded in terms of Section 148 of N.I. Act which is deposited and recorded in order dated 15.10.2022. The respondent has already received compensation for a sum of Rs.1 lakh on 10.02.2023.
4. Reply was filed on behalf of complainant / respondent no. 2 and it is pleaded that since last 8-10 years, convict and complainant are close friend and visiting regularly to each other. In March 2007, the appellant had demanded loan of Rs. 2,50,000/- and this amount had to be returned within a period of six months and interest @ 24% per annum had to be paid. The loan amount was paid by complainant after selling her shop for a sum of Rs. 7,50,000/-. The convict had requested the complainant not to present the cheque as appellant / convict does not have sufficient funds in his account. The returning memo dated 29.04.2008 was received with the remark of 'Account Closed'. The message was received by complainant through speed post on 05.05.2008. Notice was framed on 28.05.2011. It is submitted that the appellant /convict is rightly convicted and sentenced and the appeal may be dismissed.
5. Vide order dated 09.08.2023, my Ld. Predecessor had deleted respondent no. 1 /State from the array of parties by giving a finding that the respondent no. 1/State is neither necessary nor proper party CA No. 232/2019 Virender Singh Rawat Vs. State & Anr. Page 4 of 19 in the appeal and direction was given to file amended memo.
6. Ld. Counsel for appellant has relied on following citation:
(i) Tedhi Singh Vs. Narayan Dass Mahant in Crl.
Appeal No. 362 of 2022 dated 07.03.2022
7. Final argument between both the parties are heard and perused. The main contention in the appeal raised by the appellant / convict is that he had not given the cheque in discharge of legal liability but it was given to respondent to show to his creditors that money is about to come with the respondent which he could pay to their creditors.
7.1 At the outset, it is noted that as per own case of the appellant the cheque was given to the respondent so that respondent no. 2 could defraud his creditors. Admittedly, the appellant has given the cheque to respondent to commit an illegal act which is to defraud his creditors. Now the giving of cheque and putting signatures on the cheque with details of amount are admitted by the appellant/ convict. Presumption u/s 118(a) of NI Act 1881 is validly raised in favour of the respondents. The above presumption is raised along with presumption available u/s 139 of N.I. Act 1881. The presumption is rebuttable presumption u/s 139 of N.I. Act. It was held in case titled K.I. George Vs. Mohd. Master (1999) 97 Comp.
CA No. 232/2019 Virender Singh Rawat Vs. State & Anr. Page 5 of 19Cas 664 that the presumption u/s 139 of N.I. Act can be rebutted by the convict by adducing evidence. The burden of proof is on the convict and the evidence available on record will have to be appreciated by bearing in mind the above fact regarding burden of proof.
8. Now, the burden of proof has shifted on the appellant to show by evidence, the purpose for which he has given the cheque. If the cheque was given to defraud creditors of the respondent then it must be shown in evidence the name and address of such creditors with the amount owed by them towards the respondent no. 2. No such evidence is bought on record by the appellant. Suggestion was given to CW-1 in cross examination dated 06.10.2012 at page no.3 that the convict had assured CW-1 that the cheque in question will be duly encashed. This suggestion is denied by CW-1. Had this cheque was not to be encashed then why the appellant had to give any assurance to CW-1 that the cheque would be honored when presented. The above suggestions goes against the appellant. The appellant has not bought any evidence in his defence. The burden of proof continued to remain on the appellant.
9. The appellant has relied on Citation titled Prabhu Dayal Vs. State of Jharkhand and Anr. 2010 Crl. Law J from Hon'ble High Court of Uttrakhand. In the said case, the drawer had reported loss of cheque to the Bank on which ground the cheque was returned CA No. 232/2019 Virender Singh Rawat Vs. State & Anr. Page 6 of 19 unpaid by the Bank. However, it was found that the cheque was given for supply of Chimney Bricks and Stone chips and thereby Section 138 of N.I. Act was held attracted. It was further held that when the cheque is returned dishonored with an endorsement 'Account closed' or 'Payment stopped' then it would amount to returning the cheque unpaid because the money standing in the credit of that account is insufficient to honour the cheque. Hence the above case goes against the plea of the appellant and it helps the respondent.
10.The Ld. Trial Court has validly raised presumption against the convict under Section 139 of Negotiable Instruments Act, 1881 and also under Section 118 of Negotiable Instruments Act, 1881. The convict was required to bring on record the fact that the complainant/respondent was under debt which he had to repay to his creditors at the time when the cheque was advanced by the convict to the complainant. The ld. Trial Court has rightly observed that the convict could have produce his books of account to show the circumstance that the convict was not in need of any cash loan from the complainant. Further, suggestion is given in cross- examination of CW-1 at page 3 that the convict has asked for extension for the period of returning of loan amount. When there was no loan at all then why the convict would be returning any amount to the complainant. In view of above discussion it is held that the convict has failed to discharge evidential burden of proof CA No. 232/2019 Virender Singh Rawat Vs. State & Anr. Page 7 of 19 shifted upon him. The convict has failed to shift the presumption of law raised against him under Section 139 of Negotiable Instruments Act, 1881. The relevant citation in this regard is reproduced hereasunder:
Rajesh Jain v. Ajay Singh, (2023) 10 SCC 148 : (2023) 4 SCC (Civ) 567 : (2024) 1 SCC (Cri) 1 : 2023 SCC OnLine SC 1275 at page 156 17.1. The presumption under Section 139 was rebutted by putting questions to the appellant in his cross-examination and explaining the incriminating circumstances found in the statement recorded under Section 313CrPC.
Question for consideration
22. Since the execution of the cheque is, admittedly, not under dispute, the limited question to be considered, is (i) whether the convict can be said to have discharged his "evidential burden", for the courts below to have concluded that the presumption of law supplied by Section 139 had been rebutted?
22.1. If the answer to this question is found in the affirmative, the next question to be considered is (i) whether the complainant has, in the absence of the artificial force supplied by the presumption under Section 139, independently proved beyond reasonable doubt that the cheque was issued in discharge of a debt/liability? The necessity of dealing with Point (ii) will only arise if the answer to Point (i) is in the affirmative. Hence, we shall take up Point (i) for consideration.
Section 138 of the NI Act -- Necessary ingredients
24. Essentially, in all trials concerning dishonour of cheque, the courts are called upon to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the convict was able to rebut the statutory presumption contemplated by Section 139 of the Act.
25. In Gimpex (P) Ltd. v. Manoj Goel [Gimpex (P) Ltd. v. Manoj Goel, (2022) 11 SCC 705 : (2023) 3 SCC (Civ) 314] , this Court has unpacked the ingredients forming the basis of the offence under Section 138 of the NI Act in the following structure : (SCC CA No. 232/2019 Virender Singh Rawat Vs. State & Anr. Page 8 of 19 pp. 726-27, para 26)
(i) The drawing of a cheque by person on an account maintained by him with the banker for the payment of any amount of money to another from that account;
(ii) The cheque being drawn for the discharge in whole or in part of any debt or other liability;
(iii) Presentation of the cheque to the bank arranged to be paid from that account;
(iv) The return of the cheque by the drawee bank as unpaid either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount;
(v) A notice by the payee or the holder in due course making a demand for the payment of the amount to the drawer of the cheque within 30 days of the receipt of information from the bank in regard to the return of the cheque; and
(vi) The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days of the receipt of the notice.
26. In K. Bhaskaran v. Sankaran Vaidhyan Balan [K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510 : 1999 SCC (Cri) 1284] this Court had summarised the constituent elements of the offence in fairly similar terms by holding : (SCC p. 518, para 14) "14. The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence : (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice."
27. The five (5) acts as set out in K. Bhaskaran case [K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510 : 1999 SCC (Cri) 1284] are, generally speaking, matters of record and would be available in the form of documentary evidence as early as, at the stage of filing the complaint and initiating prosecution. Apart from the above acts, it is also to be proved that cheque was issued in discharge of a debt or liability [Ingredient (ii) in Gimpex case [Gimpex (P) Ltd. v. Manoj Goel, (2022) 11 SCC 705 : (2023) 3 CA No. 232/2019 Virender Singh Rawat Vs. State & Anr. Page 9 of 19 SCC (Civ) 314] ]. The burden of proving this fact, like the other facts, would have ordinarily fallen upon the complainant. However, through the introduction of a presumptive device in Section 139 of the NI Act, Parliament has sought to overcome the general norm as stated in Section 102 of the Evidence Act and has, thereby fixed the onus of proving the same on the convict. Section 139, in that sense, is an example of a reverse onus clause and requires the convict to prove the non-existence of the presumed fact i.e. that the cheque was not issued in discharge of a debt/liability. Burden of proof and presumptions : Conceptual underpinnings
28. There are two senses in which the phrase "burden of proof" is used in the Evidence Act, 1872 ("the Evidence Act" hereinafter). One is the burden of proof arising as a matter of pleading and the other is the one which deals with the question as to who has first to prove a particular fact. The former is called the "legal burden" and it never shifts, the latter is called the "evidential burden" and it shifts from one side to the other. [See Kundan Lal Rallaram v. Custodian (Evacuee Property) [Kundan Lal Rallaram v. Custodian (Evacuee Property), 1961 SCC OnLine SC 10 : AIR 1961 SC 1316] .]
29. The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party's case. If, at the conclusion of the trial a party has failed to establish these to the appropriate standards, he would lose to stand. The incidence of the burden is usually clear from the pleadings and usually, it is incumbent on the plaintiff or complainant to prove what he pleaded or contends. On the other hand, the evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; the burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be is adduced by either side (see Halsbury's Laws of England, 4th Edn. para 13). While the former, the legal burden arising on the pleadings is mentioned in Section 101 of the Evidence Act, the latter, the evidential burden, is referred to in Section 102 thereof. [G. Vasu v. Syed Yaseen Sifuddin Quadri [G. Vasu v. Syed Yaseen Sifuddin Quadri, 1986 SCC OnLine AP 147 : AIR 1987 AP 139] affirmed in Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal [Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal, (1999) 3 SCC 35] .]
30. Presumption, on the other hand, literally means "taking as true CA No. 232/2019 Virender Singh Rawat Vs. State & Anr. Page 10 of 19 without examination or proof". In Kumar Exports v. Sharma Carpets [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 :
(2009) 1 SCC (Civ) 629 : (2009) 1 SCC (Cri) 823] , this Court referred to presumption as "devices by use of which courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence."
31. Broadly speaking, presumptions are of two kinds, presumptions of fact and of law. Presumptions of fact are inferences logically drawn from one fact as to the existence of other facts. Presumptions of fact are rebuttable by evidence to the contrary. Presumptions of law may be either irrebuttable (conclusive presumptions), so that no evidence to the contrary may be given or rebuttable. A rebuttable presumption of law is a legal rule to be applied by the Court in the absence of conflicting evidence (Halsbury, 4th Edn., paras 111, 112]. Among the class of rebuttable presumptions, a further distinction can be made between discretionary presumptions ("may presume") and compulsive or compulsory presumptions ("shall presume"). [G. Vasu v. Syed Yaseen Sifuddin Quadri [G. Vasu v. Syed Yaseen Sifuddin Quadri, 1986 SCC OnLine AP 147 : AIR 1987 AP 139] ]
32. The Evidence Act provides for presumptions, which fit within one of three forms:"may presume" (rebuttable presumptions of fact), "shall presume" (rebuttable presumption of law) and conclusive presumptions (irrebuttable presumption of law). The distinction between "may presume" and "shall presume" clauses is that, as regards the former, the Court has an option to raise the presumption or not, but in the latter case, the Court must necessarily raise the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved. [G. Vasu v. Syed Yaseen Sifuddin Quadri [G. Vasu v. Syed Yaseen Sifuddin Quadri, 1986 SCC OnLine AP 147 : AIR 1987 AP 139] ] Section 139, NI Act-Effect of presumption and shifting of onus of proof
33. The NI Act provides for two presumptions : Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that "unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for CA No. 232/2019 Virender Singh Rawat Vs. State & Anr. Page 11 of 19 the discharge of, whole or part of any debt or liability". It will be seen that the "presumed fact" directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138. [ The rules discussed hereinbelow are common to both the presumptions under Section 139 and Section 118 and are hence, not repeated--reference to one can be taken as reference to another]
34. Section 139 of the NI Act, which takes the form of a "shall presume" clause is illustrative of a presumption of law. Because Section 139 requires that the Court "shall presume" the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase "unless the contrary is proved".
36. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the convict contends that a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar [Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197 : (2019) 2 SCC (Civ) 309 : (2019) 2 SCC (Cri) 40] ]. Therefore, mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption.
37. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the convict for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the convict. The effect of the presumption, in that sense, is to transfer the evidential burden on the convict of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the convict, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.
38.John Henry Wigmore [John Henry Wigmore and the Rules of Evidence : The Hidden Origins of Modern Law] on Evidence states as follows:
"The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the CA No. 232/2019 Virender Singh Rawat Vs. State & Anr. Page 12 of 19 absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption 'disappears as a rule of law and the case is in the Jury's hands free from any rule'."
39. The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an convict. The convict is not expected to prove the non-existence of the presumed fact beyond reasonable doubt. The convict must meet the standard of "preponderance of probabilities", similar to a defendant in a civil proceeding. [Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184 : AIR 2010 SC 1898] ]
40. In order to rebut the presumption and prove to the contrary, it is open to the convict to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words "until the contrary is proved" occurring in Section 139 do not mean that the convict must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the convict has the option to ask the Court to consider the non- existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa v. Mudibasappa [Basalingappa v. Mudibasappa, (2019) 5 SCC 418 : (2019) 2 SCC (Cri) 571 : AIR 2019 SC 1983] ; see also Kumar Exports v. Sharma Carpets [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 : (2009) 1 SCC (Civ) 629 : (2009) 1 SCC (Cri) 823] ]
41. In other words, the convict is left with two options. The first option--of proving that the debt/liability does not exist--is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non-existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the convict's case may be even fifty-one to forty-nine and arising out of the entire circumstances of the case, which includes :
the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the convict in the reply notice, his Section 313CrPC statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance CA No. 232/2019 Virender Singh Rawat Vs. State & Anr. Page 13 of 19 of probabilities justifying a finding that there was "no debt/liability". [Kumar Exports v. Sharma Carpets [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 : (2009) 1 SCC (Civ) 629 :
(2009) 1 SCC (Cri) 823] ]
42. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e. oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact.
43. The convict may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the convict may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling, the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. In Kundan Lal case [Kundan Lal Rallaram v. Custodian (Evacuee Property), 1961 SCC OnLine SC 10 : AIR 1961 SC 1316] when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non-existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Sections 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well.
44. Therefore, in fine, it can be said that once the convict adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption "disappears" and does not haunt the convict any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa v. Mudibasappa [Basalingappa v. Mudibasappa, (2019) 5 SCC 418 : (2019) 2 SCC (Cri) 571 : AIR 2019 SC 1983] ; see also, Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 CA No. 232/2019 Virender Singh Rawat Vs. State & Anr. Page 14 of 19 SCC (Cri) 184 : AIR 2010 SC 1898] ]
46. The convict has neither replied to the demand notice nor has led any rebuttal evidence in support of his case. The case set up by him needs to be drawn from the suggestions put during the cross- examination and from his reply given in the statement recorded under Section 313CrPC.
53. Nothing significant has been elicited in the cross-examination of the complainant to raise any suspicion in the case set up by the complainant. Other than some minor inconsistencies, the case of the complainant has been consistent throughout as can be noticed from a perusal of the complainant, demand notice and affidavit evidence. In fact, the signature on the cheque having not been disputed, and the presumption under Sections 118 and 139 having taken effect, the complainant's case stood satisfied every ingredient necessary for sustaining a conviction under Section 138. The case of the defence was limited only to the issue as to whether the cheque had been issued in discharge of a debt/liability. The convict having miserably failed to discharge his evidential burden, that fact will have to be taken to be proved by force of the presumption, without requiring anything more from the complainant.
54. As rightly contended by the appellant, there is a fundamental flaw in the way both the courts below have proceeded to appreciate the evidence on record. Once the presumption under Section 139 was given effect to, the courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the convict, since the activation of the presumption has the effect of shifting the evidential burden on the convict. The nature of inquiry would then be to see whether the convict has discharged his onus of rebutting the presumption. If he fails to do so, the court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section 138. If the court finds that the evidential burden placed on the convict has been discharged, the complainant would be expected to prove the said fact independently, without taking aid of the presumption. The court would then take an overall view based on the evidence on record and decide accordingly.
55. At the stage when the courts concluded that the signature had been admitted, the court ought to have inquired into either of the two questions (depending on the method in which the convict has chosen to rebut the presumption) : Has the convict led any defence CA No. 232/2019 Virender Singh Rawat Vs. State & Anr. Page 15 of 19 evidence to prove and conclusively establish that there existed no debt/liability at the time of issuance of cheque? In the absence of rebuttal evidence being led the inquiry would entail : Has the convict proved the non-existence of debt/liability by a preponderance of probabilities by referring to the "particular circumstances of the case"?
56. The perversity in the approach of the trial court is noticeable from the way it proceeded to frame a question at trial. According to the trial court, the question to be decided was "whether a legally valid and enforceable debt existed qua the complainant and the cheque in question (Ext. CW I/A) was issued in discharge of said liability/debt". When the initial framing of the question itself being erroneous, one cannot expect the outcome to be right. The onus instead of being fixed on the convict has been fixed on the complainant. Lack of proper understanding of the nature of the presumption in Section 139 and its effect has resulted in an erroneous order being passed.
57. Einstein had famously said:
"If I had an hour to solve a problem, I'd spend 55 minutes thinking about the problem and 5 minutes thinking about solutions."
Exaggerated as it may sound, he is believed to have suggested that quality of the solution one generates is directly proportionate to one's ability to identify the problem. A well-defined problem often contains its own solution within it.
61. The fundamental error in the approach lies in the fact that the High Court has questioned the want of evidence on the part of the complainant in order to support his allegation of having extended loan to the convict, when it ought to have instead concerned itself with the case set up by the convict and whether he had discharged his evidential burden by proving that there existed no debt/liability at the time of issuance of cheque.
11. In view of above, it is held that the convict has failed to discharge evidential burden of proof on him which is presumption of law under Section 139 of Negotiable Instruments Act, 1881. The findings of ld. Trial Court has discussed in detail and disposed the CA No. 232/2019 Virender Singh Rawat Vs. State & Anr. Page 16 of 19 contentions of the convict well on merits of the case. The judgment of ld. Trial Court is hence sustained and the appeal filed by the appellant/convict stands dismissed.
12. The convict has pleaded that probation may be granted to him. In case titled Parminder Khetarpal Vs. State of NCT of Delhi decided on 23.11.2022 from Hon'ble High Court of Delhi in neutral Citation no. 2022/DHC/005062 in Crl. Rev. Petition No. 482/2018 wherein it was held that there is no bar in extending benefit of Section 4 of Probation of Offenders Act or Section 360 Cr. P.C to the convict under Section 138 of Negotiable Instruments Act, 1881. It is noted that the Hon'ble High Court of Delhi in the said case had extended probation to the convict and compensation was also granted to the petitioner therein. Appellant/convict is a senior citizen. The Ld. Trial Court has granted simple imprisonment to the convict for a period of 01 year and to pay compensation of Rs.5 lakh to the respondent/complainant under Section 357 of Cr. P.C and in default of payment of compensation further simple imprisonment for a period of six months is granted to the appellant/convict. After hearing both the parties it is noted that both the appellant/convict and complainant does not belong to well off section of society and appellant is a senior citizen. Keeping in view the facts and circumstances of the case, in place of simple imprisonment for a period of one year the appellant/convict Virender Singh Rawat is granted probation for a period of one year CA No. 232/2019 Virender Singh Rawat Vs. State & Anr. Page 17 of 19 from the date of this judgment with the following conditions to be made by the convict as under:
1. The convict shall continue to report to the Probation Officer on last day of every quarter of the month and a quarter will be made up of 3 months. If the last day is holiday then the convict shall report on the next working day.
2. The convict shall enter into a bond of good behaviour for a sum of Rs.10,000/- with surety of like amount before the Probation Officer to appear and receive the sentence when called upon during the period of one year for the purpose in question.
3. The convict shall intimate his one mobile number to Probation Officer which he will continue to keep alive / in working condition during entire period of probation.
13. Further the compensation imposed on the appellant herein stands maintained as it is keeping in view of the fact that the complaint case is pending since the year 2008 and much time has passed due to which value of money has also depreciated. Further, in default of payment of compensation the simple imprisonment of appellant/convict is also maintained for a period of 06 months. All the balance compensation shall be paid within a period of 30 days from the pronouncement of this judgment. Accordingly benefit of probation is granted to the convict under Section 4 of Probation of Offenders Act and sentence of fine for a sum of Rs.5 lakh as CA No. 232/2019 Virender Singh Rawat Vs. State & Anr. Page 18 of 19 awarded by ld. Trial Court stands maintained and the entire fine amount is awarded as compensation to the respondent no. 2 Smt. Prem Lata payable by convict under Section 357(3) of Cr. P.C r/w Section 138 of Negotiable Instruments Act, 1881. Accordingly, appeal stands dismissed.
Copy of the present judgment be given free of cost to the convict/appellant and also to the Probation Officer for necessary action and record.
Copy of the judgment be sent to the ld. Trial Court alongwith Trial Court record as per rules.
Appeal file be consigned to Record Room.
Announced in the open Court
on 29.08.2024. JOGINDER Digitally signed by
JOGINDER PRAKASH
PRAKASH NAHAR
Date: 2024.08.29
NAHAR 16:12:18 +0530
(JOGINDER PRAKASH NAHAR)
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL/TIS HAZARI COURT
DELHI
CA No. 232/2019
Virender Singh Rawat Vs. State & Anr. Page 19 of 19