Final Order 9

Order Details: COPY OF ORDER
Pdf Text: Multan Khan vs State & Anr.
IN THE COURT OF SH. ASHISH RASTOGI
ADDITIONAL SESSIONS JUDGE- 05
EAST, KARKARDOOMA COURTS, DELHI
CA No.38/2024
Multan Khan
S/o Sh. Sultan Khan
R/o H.No.40, Khari Kuaan,
Toli Mohalla, Distt. Ghaziabad, UP
…. Appellant
Vs.
1.State (Govt of NCT Delhi)
2.Manoj Kumar
S/o Sh. Om Veer Singh
R/o C-194, Gali No.6,
Shiv Vihar, Delhi-110094
…. Respondents
Date of Institution : 05.03.2024
Arguments heard : 26.07.2024
Date of order : 29.07.2024
JUDGMENT
1. The instant appeal has been filed under Section 374(3) CRPC
against the Judgment date 23.12.2023 passed by Ld. MM (NI
Act)/East District, Karkardooma Courts, Delhi in CT Case
No.58005/2016 titled as “Manoj Kumar vs Multan Khan” vide
which the appellant was held guilty and convicted for offence
under Section 138 NI Act and vide order on sentence dated
31.01.2024 was sentenced to pay fine of Rs.14 lakhs along
with interest at the rate of 9% p.a. w.e.f 18.05.2016 till the
date of judgment i.e. 23.12.2023 within 30 days from the date
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of sentence and in default of payment, appellant would
undergo Simple Imprisonment for a period of six months.
2. The brief facts pertaining to this instant appeal are as under:
3. The Complainant/Respondent no.2 alleged that the Appellant
was known to him very well and the appellant approached the
Respondent no.2 for a friendly loan of Rs.14,00,000 which
was provided to the Accused and the loan Agreement dated
04.09.2015 was also executed to that effect. In discharge of
the the aforesaid liability, the Appellant issued the cheques in
question i.e. 2 cheques of Rs 7,00,000 each. The said cheques
returned dishonoured with the remarks “payment stopped by
the drawer” vide their respective cheque return memos.
Thereafter, he was constrained to issue statutory legal demand
notice, sent by the way of speed post AD. Despite the same,
the Accused failed to make the payment within 15 days of the
deemed service of the legal notice. Therefore, Respondent
no.2 filed the Complaint u/s 138 NI Act. The trial commenced
and vide judgement dated 23.12.2023, the Appellant was
convicted and vide order on sentence dated 31.01.2024, he
was sentenced. Hence, this Appeal.
4. As per the Appeal filed by the Appellant, it has been submitted
that the judgment of Ld. Trial Court is against the facts of the
case and the law as the case of the Respondent no.2 that a
friendly loan was advanced to the Appellant is not supported
by any bank documents etc. The brother-in-law of the
Respondent no. 2 filed a false case against the Appellant for an
amount of Rs 10,00,000 and the same is pending in the court
of Ms. Chakita Srivastava, MM-01, Shahdara and on the very
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same day another false agreement was executed for an amount
of Rs 10,00,000 with one Chamman lal on one side and
appellant on the other and he has also filed a false case against
the Appellant, which is pending before Court of Ms. Ankur
Jain, MM, Shahdara. That the Ld. Trial Court has not
considered these aspects and there are serious infirmities in
the case of the Respondent No. 2/ Complainant and the guilt
of the Appellant has not been proved beyond reasonable doubt
while the Appellant has proved its defence through
preponderance of probabilities.
5. The counsel for the Appellant was given numerous
opportunities to advance his arguments but adjournments were
taken on one pretext or the other. Hence, vide detailed and
reasoned order dated 26.07.2024, his opportunity to advance
arguments was closed and the matter was fixed for
orders/clarifications.
6. No reply was sought from Respondent no.1 as no relief was
sought from Respondent no.1.
7. The Counsel for Respondent No.2 submitted that the case of
the Appellant has no feet to stand upon and the Ld. Trial Court
has gone into each and every aspect in detail. The Appellant
has taken completely contradictory stands right from the
inception of the trial till its conclusion and his stance kept
changing at each and every stage of the trial be it the stage of
framing of notice u/s 251 Cr.P.C., his application u/s 145(2) of
NI Act, his examination u/s 313 Cr.P.C. or at the time when he
lead his Defence Evidence. None of the witnesses produced by
him lends any credence to his version which in itself has
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constantly kept changing at every stage. In addition, he could
not point out even one infirmity in the order of the Ld. Trial
Court which otherwise is a very reasoned and detailed order.
8. I have gone through the Appeal and heard the submissions of
Ld. Counsel for the Respondent and perused the TCR.
9. Before moving on the findings, it is pertinent to discuss in
brief as to the nature of Jurisdiction which is to be exercised
by the High Court in Appeals under Section 374(2) CRPC.
The Hon’ble Apex Court in
Jogi v. State of Madhya Pradesh;
Criminal Appeal No 1350 of 2021 has observed:
“The High Court was dealing with a substantive appeal
under the provisions of Section 374 of the Code of
Criminal Procedure 1973 1. In the exercise of its appellate
jurisdiction, the High Court was required to evaluate the
evidence on the record independently and to arrive at its
own findings as regards the culpability or otherwise of the
accused on the basis of the evidentiary material.”
10.Therefore, the task of this Court in the course of the said
appeal is to independently assess and appreciate the evidence
on record and arrive at its own finding along with the reasons
to agree/disagree with the findings of the Ld. Trial Court.
11.The purpose of NI Act as rightly observed by the Ld. Trial
Court was to safeguard the sanctity of Negotiable Instruments
and to make sure that they do not become a paper tiger and
also to curb their widespread misuse. With the gradual
increase in the financial transactions between the parties, the
need was felt to enact a legal framework wherein transactions
could freely be concluded between the parties and payments
could be done with the help of Negotiable Instruments. For the
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same, it was very necessary that there should be a confidence
between public at large that a legal framework exists which
can get the Negotiable Instruments enforced. With this
salutary purpose in mind, the provisions of the NI Act mainly
Section 138 and 139 NI Act were enacted. The same hold as
under:
12.Before proceeding further, it shall be pertinent to discuss in
brief the relevant provisions of NI Act, which are applicable in
the case at hand:
138. Dishonour of cheque for insufficiency, etc., of
funds in the account.—Where any cheque drawn by a
person on an account maintained by him with a
banker for payment of any amount of money to
another person from out of that account for the
discharge, in whole or in part, of any debt or other
liability, is returned by the bank unpaid, either
because of the amount of money standing to the credit
of that account is insufficient to honour the cheque or
that it exceeds the amount arranged to be paid from
that account by an agreement made with that bank,
such person shall be deemed to have committed an
offence and shall, without prejudice to any other
provision of this Act, be punished with imprisonment
for [a term which may be extended to two years’], or
with fine which may extend to twice the amount of
the cheque, or with both:
Provided that nothing contained in this section shall
apply unless—(a) thecheque has been presented to the
bank within a period of six months from the date on
which it is drawn or within the period of its validity,
whichever is earlier;
(b) the payee or the holder in due course of the
cheque, as the case may be, makes a demand for the
payment of the said amount of money by giving a
notice; in writing, to the drawer of the cheque,[within
thirty days] of the receipt of information by him from
the bank regarding the return of the cheque as unpaid;
and
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(c) the drawer of such cheque fails to make the
payment of the said amount of money to the payee or,
as the case may be, to the holder in due course of the
cheque, within fifteen days of the receipt of the said
notice.
139. Presumption in favour of holder.—It shall be
presumed, unless the contrary is proved, that the
holder of a cheque received the cheque of the
nature referred to in section138 for the discharge,
in whole or in part, of any debt or other liability.
13.The combined effect of both these Sections when read in
consonance with each other is that once the basic ingredients
of Section 138 NI Act are satisfied, the presumption under
Section 139 automatically kicks in. The said essential
ingredients are as follows:
1. Issuance of a Cheque: The first requirement is the
issuance of a cheque by the drawer, which could be in
favor of the payee.
2. Presentation of the Cheque: The payee must present the
cheque to the bank within a period of three months from
the date of issue. It is essential to adhere to this timeline,
as a delayed presentation might weaken the case.
3. Dishonoured Cheque: If the bank dishonours the cheque
due to insufficient funds or other specified reasons, it is
considered a dishonoured cheque.
4. Notice to the Drawer: The payee must serve a legal
notice to the drawer within 30 days of receiving the
information about the dishonoured cheque from the
bank. The notice should demand the payment of the
cheque amount within 15 days from the receipt of the
notice.Failure to Make Payment: If the drawer fails to
make the payment within the stipulated 15-day period,
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the payee can proceed with filing a complaint.
14.Once the said presumption kicks in, it is presumed that the
cheque was issued for or in discharge of some legally
enforceable liability.
In Bir Singh v. Mukesh Kumar ;(2019) 4
SCC 197, this Court held that presumption under Section 139
of the Act is a presumption of law. The Court held as under:
“20. Section 139 introduces an exception to the general
rule as to the burden of proof and shifts the onus on the
accused. The presumption under Section 139 of the
Negotiable Instruments Act is a presumption of law, as
distinguished from presumption of facts. Presumptions
are rules of evidence and do not conflict with the
presumption of innocence, which requires the
prosecution to prove the case against the accused beyond
reasonable doubt. The obligation on the prosecution may
be discharged with the help of presumptions of law and
presumptions of fact unless the accused adduces evidence
showing the reasonable possibility of the non-existence
of the presumed fact as held in Hiten P. Dalal [Hiten P.
Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 : 2001
SCC (Cri) 960] .
15.The words used in the said Section are “shall be presumed”.
The same, hence, is a mandatory presumption of law.
Regarding the purport of the said expression, it has been
observed by the Hon'ble Supreme Court in
Neeraj Dutt Vs.
State, SLP(Crl.) No. 6497/2020 as under: -
“.........Courts are authorized to draw a particular
inference from a particular fact, unless and until the
truth of such inference is disproved by other facts. The
court can, under Section 4 of the Evidence Act, raise a
presumption for purposes of proof of a fact. It is well
settled that a presumption is not in itself evidence but
only makes a prima facie case for a party for whose
benefit it exists. As per English Law, there are three
categories of presumptions, namely, (i) presumptions
of fact or natural presumption; (ii) presumption of law
(rebuttable and irrebuttable); and (iii) mixed
presumptions i.e., “presumptions of mixed law and
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fact” or “presumptions of fact recognized by law”. The
expression “may presume” and “shall presume” in
Section 4 of the Evidence Act are also categories of
presumptions. Factual presumptions or discretionary
presumptions come under the division of “may
presume” while legal presumptions or compulsory
presumptions come under the division of “shall
presume”.
“May presume” leaves it to the discretion of the court
to make the presumption according to the
circumstances of the case but “shall presume” leaves
no option with the court, and it is bound to presume
the fact as proved until evidence is given to disprove
it, for instance, the genuineness of a document
purporting to be the Gazette of India. The expression
“shall presume” is found in Sections 79, 80, 81, 83,
85, 89 and 105 of the Evidence Act.”
16.Therefore, the combined implication of both Section 138 and
139 NI Act is that once the essential ingredient of Section 138
are satisfied and the presumption under Section 139 is pressed
into service then the case against of the Complainant against
the Respondent stands proved and now it is upto him to rebut
the presumption drawn against him by leading evidence to the
Contrary. The burden which the Accused has to discharge in
rebutting the said presumption is “preponderance of
probabilities” while the Complainant has to be prove his case
beyond reasonable doubt. Therefore, what has been envisaged
is that the Accused should raise a probable defence which is
an expression i.e. different from probable defence. In
Kumar
Exports v. Sharma Carpets; (2009) 2 SCC 513, it was held that
mere denial of existence of debt will not serve any purpose but
accused may adduce evidence to rebut the presumption. This
Court held as under:
“20. The accused in a trial under Section 138 of the
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Act has two options. He can either show that
consideration and debt did not exist or that under the
particular circumstances of the case the non-existence
of consideration and debt is so probable that a prudent
man ought to suppose that no consideration and debt
existed. To rebut the statutory presumptions an
accused is not expected to prove his defence beyond
reasonable doubt as is expected of the complainant in
a criminal trial. The accused may adduce direct
evidence to prove that the note in question was not
supported by consideration and that there was no debt
or liability to be discharged by him. However, the
court need not insist in every case that the accused
should disprove the non-existence of consideration
and debt by leading direct evidence because the
existence of negative evidence is neither possible nor
contemplated. At the same time, it is clear that bare
denial of the passing of the consideration and
existence of debt, apparently would not serve the
purpose of the accused. Something which is probable
has to be brought on record for getting the burden of
proof shifted to the complainant. To disprove the
presumptions, the accused should bring on record
such facts and circumstances, upon consideration of
which, the court may either believe that the
consideration and debt did not exist or their non-
existence was so probable that a prudent man would
under the circumstances of the case, act upon the plea
that they did not exist. Apart from adducing direct
evidence to prove that the note in question was not
supported by consideration or that he had not incurred
any debt or liability, the accused may also rely upon
circumstantial evidence and if the circumstances so
relied upon are compelling, the burden may likewise
shift again on to the complainant. The accused may
also rely upon presumptions of fact, for instance,
those mentioned in Section 114 of the Evidence Act to
rebut the presumptions arising under Sections 118 and
139 of the Act.”
17.Therefore, in order to travel from the point of possible defence
to probable defence, the Accused has to have some credible
material on record so as to raise a doubt on the version of the
Complainant.
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18.With the said legal background in mind, it shall be pertinent to
approach the factual matrix of the instant Appeal and the
evidence brought on record.
19.The First version of the Accused (hereinafter referred to as
appellant which has come on record is his Plea of Defence
entered at the time of framing of notice u/s 251 CRPC on
20.01.2017 wherein he stated that total six blank cheques,
which included the two cheques in question, were given to one
Mr. Chaman Lal and the same were for purchasing of property
in partnership with Chaman Lal. He further stated that before
handing over the said he also gave Rs 50 lacs to said Chaman
lal for purchase of property. When then Appellant requested to
return the money as well as cheques, then Chaman lal gave an
amount of Rs 5 Lacs through the brother-in-law of Appellant
i.e. one Fajlu Rehman but he did not return the said cheques.
The second version which has come on record is in the form
of Application under Section 145(2) NI Act vide which he
sought the indulgence of the Ld. Trial Court to convert the
summary trial to summons trial and hence to cross examine
the Complainant. As per the said Application, the version of
the Accused is that in the year 2013, the parents of the
Appellant sold out their agricultural land. Chaman lal and his
associates which included the Complainant (hereinafter
referred to as Respondent No.2) gave an offer to the Appellant
that they would invest his money in property business and
promised him good return. Upon their assurance he handed
over Rs 50 lacs to them. After sometime he demanded the
money along with the profit but they did not return the said
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amount and after sometime they said that the prices of the
property had gone down and no one is ready to purchase the
property at even half the rate. At that time, the Appellant
urgently required Rs 5 Lacs and demanded the said amount
from Chaman Lal but the same was refused by him but the
advise was given that they can arrange the said amount
through some person known against blank cheques and
finding no alternative, the 6 cheques which included the 2
cheques in question were given to Chaman Lal and he gave 5
lacs to the Appellant. The Appellant kept on demanding the
amount of 50 lacs, his share of profit and the abovementioned
6 cheques but the same were not given to him and finding no
alternative he stopped the payment and the cheques when
presented were bounced.
20.Before moving on to the evidence stage and the statement of
the Accused under Section 313 CRPC it is to be noted that the
initial two versions as put by the Accused are fraught with
inconsistencies apparent on the face of it. Initially he
mentioned that he gave an amount of Rs 50 lacs to Chaman lal
and no other person was mentioned by him. Later on, in his
application u/s 145(2) he changed his version and said that he
gave Rs 50 lacs to Chaman lal and his associates which
included the Complainant.
21.Further, At the time of entering his plea of defence u/s 251
CRPC he clearly mentioned that 6 cheques were given to
Chaman lal before giving him Rs 50 lacs for the purchase of
property while later on he changed his version and said that
after giving Rs 50 lacs to the Appellant and his associates, he
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demanded the said amount back and when the same was not
forthcoming he handed over the 6 cheques to Chaman lal upon
the assurance of Chaman lal that he will get the amount
arranged through some acquaintance of his upon handing over
of blank security cheques. Also, initially he said that Chaman
lal gave Rs 5 lacs to him through his brother-in-law and later
on he said that Chaman lal gave 5 lacs to him directly. In
addition, initially he mentioned that he does not know whether
Chaman lal brought the property from the 50 lacs handed over
to him and later on he said that Chaman lal and his associates
told him that the value of property purchased by him has gone
down.
22.The matter proceeded for Evidence wherein the Complainant
got himself examined as CW-1 and thereafter Statement u/s
313 CRPC was recorded wherein the Accused put forth
another version wherein he stated that Cheques in question
were given to Chaman lal and that Chaman lal and him jointly
purchased the property in Delhi. He further stated that he had
taken a loan of Rs 5,00,000 from Chaman lal as his brother-in-
law was in need of money and that Chaman lal handed over
the cheques to the Complainant. Here again, the statement is
in stark contrast to his earlier statements. Here a new version
has been floated by the Accused wherein now he admits that
him and Chaman lal jointly purchased the property in Delhi
while earlier he stated that he does not know whether Chaman
Lal purchased any property or not. Also, in his 313 CRPC
statement he says that he does not know the Complainant
while in his Application under Section 145(2) NI Act, he
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stated that Chaman Lal and his associates which included the
Complainant approached him with a business idea of investing
his money in property business to double it. In addition, earlier
he mentioned that Chaman lal arranged the loan for him
through one of his known persons while in his 313 CRPC
Statement he states that he took the loan of 5 lacs directly
from Chaman lal. In his 313 CRPC statement, the fact that Rs
5 lacs were given by Chaman Lal through his brother-in-law
Fajlur Rehman is also altogether missing.
23.Appellant also entered Defence Evidence and got himself
examined as DW-1 wherein he stated that he gave Rs 50 lacs
in cash to Chaman Lal in presence of Amiruddin and Yusuf
and after sometime Chaman Lal and Rakesh told him that they
have earned Rs 20,00,000. After sometime he asked Rs
5,00,000 from Chaman Lal who told that the rate of property
had gone down and property cannot be sold out and hence he
is not able to give Rs 5,00,000. He told the Appellant that he
will get the amount arranged through some of his known
persons but for the same he has to give blank cheques. He
further mentioned that he gave 6 blank signed cheques to
Chaman Lal and that Chaman Lal obtained his signatures on
some blank papers. In his cross examination, he mentioned
that he knows the complainant for past 5-6 years through his
brother Rakesh Kumar and that he has not taken any loan from
Chaman Lal or the complainant and that he does not know
where Agreement Ex CW1/1 was executed.
24.At this stage, the Accused person has brought an additional
fact which was not mentioned anywhere in his earlier
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statement and that is that in addition to 6 blank cheques being
taken from him, his signatures on certain blank papers were
also taken by Chaman lal. Also, while in his application under
Section 145(2) NI Act, he mentioned that Chaman lal and his
associates approached the Appellant he changes his version
and says that it was Chaman Lal and Rakesh. Also, in his 313
CRPC Statement he said that he does not know the
Complainant while in his evidence he mentions that he knows
the Complainant for the past 5-6 years through his brother
Rakesh. Moreover, it is for the first time that the fact that Rs
50 lacs were given in the presence of two witnesses crops up.
This vital fact was nowhere mentioned in any of the earlier
statement.
25.The Appellant to prove his case also got examined DW-2 and
DW-3 i.e. Yusuf and Amiruddin respectively. DW-2 stated in
his examination in chief that Chaman Lal had taken Rs
50,00,000 in cash from the Appellant. He further stated that
the money was given in three installments. Moreover, Chaman
Lal, Manoj and Pankaj told the Appellant that they had earned
a profit of Rs 5,00,000. After 5-6 months when the Appellant
demanded Rs 5,00,000 Chaman Lal told the Appellant that the
prices of the property had gone down. In his cross he said that
other persons including Amiruddin was also present when the
money was being handed over. He further very interestingly
mentions that although no written agreement was executed
between the parties there was a verbal understanding between
all four persons namely Appellant, Chaman lal, Manoj and
Pankaj that the profits shall be distributed evenly between all
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four. Therefore, it is reasonable to assume that as per the
version put forth by DW-2 all four persons, Yusuf and
Amiruddin were present at the time when the amount was
handed over by Appellant. The said fact of the presence of
Manoj and Pankaj at the time of handing over of money is
altogether missing in the evidence of the Appellant who only
mentions that the money was given to Chaman lal in presence
of Yusuf and Amiruddin. Moreover, DW-2 also said that the
cheques (which he initially mentioned as two and later on said
to be 6) were handed over to him in his presence but did not
mention that at the time of handing over of cheques Chaman
Lal also obtained his signatures and thumb impressions on
certain blank papers which is in stark contrast to the testimony
of DW-1 who clearly mentioned this fact. Also, the Appellant
in his evidence mentioned that Chaman Lal and Rakesh told
him that they have earned a profit of Rs 20,00,000 while DW-
2 in his cross mentioned that after 6 months to 1 year from the
time of handing over of Rs 50 lacs, Chaman Lal, Manoj and
Pankaj told the Appellant in his presence that they have earned
a profit of Rs 5,00,000/-.
26.Coming over to the testimony of DW-3 he mentions in his
cross that himself, Yusuf, Appellant, Chaman Lal and Rakesh
were always present at the time of each of three transaction
which is again in variance with the statement of DW-2 and
DW-1. While DW-1 mentioned only the name of Chaman Lal,
himself, Yusuf and Amiruddin as the persons present at the
time of handing over of the amount DW-2 testified that there
was a verbal understanding at the time of handing over of the
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amounts between Chaman Lal, Manoj, Pankaj and appellant
that the profits shall be proportionately divided. Moreover,
DW-3 said in his cross examination that the cheques were
given in his presence to Chaman Lal and Manoj which is
again in variance with the testimony of DW-2 who stated that
the cheques were given to Manoj, Pankaj and Chaman.
Moreover, DW-1 clearly stated in his cross that he did not fill
up the names in the body of the cheque which is in stark
contrast with the testimony of DW-3 who stated that the
Appellant filled the name and gave the cheques to Chaman Lal
and Manoj. In addition, DW-3 said that no written agreement
was signed between Respondent No. 2 and the Appellant and
the Appellant did not sign or put his thumb impression on any
paper in his presence but DW-1 has clearly stated that at the
time of handing over of cheques, his signatures and thumb
impression on certain blank papers were taken.
27.From the independent appreciation of the Evidence above, it is
clear that the stand taken by the Complainant is not only
proved by oral evidence but further strengthened by
documentary evidence. Moreover, once the requirements of
Section 138 NI Act are fulfilled, then the presumption under
Section 139 NI Act kicks in. The same has to be rebutted by
the Accused in such cases so as to prove that the issuance of
the Negotiable instruments in question was not in fact in
discharge of a legally enforceable debt and that no legally
enforceable debt in fact existed. It is true that in rebutting the
said presumption a lighter burden has been placed upon the
Accused and that is of preponderance of probabilities but the
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same does not mean that the said burden may be discharged
by mere bald denials and assertions which are not supported
by some credible material and evidence on record. In the case
at hand, it is evident from the discussion above that the stand
taken by the Appellant does not inspire confidence at any
stage. At every stage of the trial self-contradictory stands have
been taken which do not put forth an acceptable and coherent
version. Even the Witnesses examined by the Appellant apart
from himself i.e. DW-2 and DW-3 have further eroded and
weakened his stance rather than strengthening it as they
contradict each other and both of them contradict the
testimony of DW-1. The Ld. Trial Court.
28.In
Rohitbhai Jivanlal Patel v. State of Gujarat and Another,
AIR 2019 SC 1876 this Court held as under:
“18. So far the question of existence of basic ingredients for
drawing of presumption under Sections 118 and 139 the NI
Act is concerned, apparent it is that the accused/appellant
could not deny his signature on the cheques in question that
had been drawn in favour of the complainant on a bank
account maintained by the accused for a sum of Rs. 3 lakhs
each. The said cheques were presented to the Bank
concerned within the period of their validity and were
returned unpaid for the reason of either the balance being
insufficient or the account being closed. All the basic
ingredients of Section 138 as also of Sections 118 and 139
are apparent on the face of the record. The Trial Court had
also consciously taken note of these facts and had drawn the
requisite presumption. Therefore, it is required to be
presumed that the cheques in question were drawn for
consideration and the holder of the cheques i.e., the
complainant received the same in discharge of an existing
debt. The onus, therefore, shifts on the accused-appellant to
establish a probable defence so as to rebut such a
presumption.”
29.The Court regarding probable defence which can be raised by
the Accused held:
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“20. On the aspects relating to preponderance of
probabilities, the accused has to bring on record such facts
and such circumstances which may lead the Court to
conclude either that the consideration did not exist or that
its nonexistence was so probable that a prudent man
would, under the circumstances of the case, act upon the
plea that the consideration did not exist. This Court has,
time and again, emphasized that though there may not be
sufficient negative evidence which could be brought on
record by the accused to discharge his burden, yet mere
denial would not fulfil the requirements of rebuttal as
envisaged under Section 118 and 139 of the NI Act…..”
30.Keeping into account the same, this Court is of the Considered
opinion that the versions put forth by the Appellant which
includes his testimony and that of other Defence witnesses
marshalled by him do not inspire any confidence. The Ld.
Trial Court has considered this aspect in elaborate detail in
Paras 30-34 and later on in Paras 44 and 45 and the reasoning
of Ld. Trial Court cannot be faulted on any ground let alone
any perversity being found in the same.
31.The next aspect which is to be discussed is with regard to the
Agreement Ex Cw-1/1 allegedly executed between the
Appellant and the Respondent. The said Agreement clearly
bears the numbers of cheques in question and the fact that a
friendly loan of Rs 14,00,000 has been advanced to the
Appellant and the post-dated cheques are being given in lieu
of the same has been recorded. The Counsel for the Appellant
vehemently argued that the time of the purchase of stamp
papers of all the three agreements that have been entered
between the Appellant on hand and Respondent No. 2,
Chaman lal and Pankaj Kumar on the other is between
11:33AM to 11:37AM on 4th September, 2015 which casts a
doubt on the version of Respondent No. 2 and the same shows
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that there was connivance between Respondent No. 2 and his
relatives to dupe the Accused. The said submission does not
hold any merit as no causal connection has been shown
between proximity of purchase of stamp papers and the
intention of Respondent No. 2 to dupe the Accused. It can
even be argued that opposite is the case as it has clearly come
on record by the own testimony and statements of the
Appellant that he knew the Respondent, Chaman Lal as well
as Pankaj. DW-3 which was a witness produced on behalf of
the Appellant has also mentioned that Chaman Lal, Manoj,
Pankaj and the Appellant were friends. If that be the case, then
it is possible that the Accused might have approached them for
loan and if they have advanced loan amount together it is
possible that the stamp papers were purchased by all three of
them together in quick succession to enter into an agreement.
Be that as it may, the purchase of stamp paper in quick
succession by Respondent No. 2, Chaman Lal and Pankaj does
not strengthen the case of the Appellant in any way. In
addition to it, the Appellant in his plea of defence entered at
the time of framing of Notice u/s 251 clearly denied his
signatures on Ex CW-1/1 but during his evidence he admitted
that when Chaman Lal gave Rs 5,00,000 to him, the Appellant
gave 6 blank cheques and in addition to it Chaman lal also got
signed from him certain blank papers and also took his thumb
impression on them. Moreover, in order to prove his defence it
was necessary for the Appellant to prove the facts which he
has averred in his defence one of them being that the
Agreement is forged and fabricated. Mere putting suggestions
without bringing any evidence on record does not help the
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case of the Appellant in any way. The Appellant led Defence
Evidence and he was at liberty to produce expert evidence
which could have proved that the signatures and thumb
impressions are not his as was his plea at the time of framing
of notice u/s 251 CRPC. The Appellant failed to do so and has
taken rather contradictory stands in the course of trial itself
which casts serious doubts on the genuineness of the stand
taken by him. The Ld. Trial Court has dealt with this aspect in
detail at Para 35 of the judgment and it is the considered
opinion of this Court that the reasoning of Ld. Trial Court
cannot be faulted on any ground.
32.In the light of above discussion and upon independent
appreciation of evidence in the instant matter, as has been
mandated while examining the Appeal against Conviction u//s
Section 374(3) CRPC, this Court is of the considered opinion
that the judgment of the Ld. Trial Court is based upon sound
reasoning and analysis of all the material on record. The
Appellant has utterly failed to rebut the presumption cast upon
him by the virtue of Section 139 NI Act. The reasoning of the
Ld. Trial Court cannot be faulted and no perversity can be
found in the impugned judgment so as to warrant interference
in the same. The Appeal is accordingly dismissed.
33.TCR be sent back along with copy of this order. Appeal file be
consigned to the Record Room after due compliance.
Announced in the open Court
on 30.07.2024
(Ashish Rastogi)
Addl. Sessions Judge-05 (Electricity)
East/Karkardooma Courts/Delhi
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