Final Order 10

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF DISTRICT JUDGE-06/ ADDITIONAL
SESSIONS JUDGE, SOUTH-EAST DISTRICT, SAKET
COURT, NEW DELHI.
Presiding Officer: Neha, DHJS
CNR No. DLND01-00-9591-2024
Criminal Appeal No. 291/2024
Mr. Davinder Kumar Singhal
S/o Sh. Mangal Ram Singhal
R/o A-2/137, Paschim Vihar
New Delhi-110063. ...Appellant
Vs.
Mr. Ravinder Kumar Aggarwal
S/o Sh. Brij Mohan Aggarwal
B-74, South City-I, Gurugram
Haryana-122001. ...Respondent
Date of reserving order : 30.11.2024
Date of pronouncement : 17.11.2025
(The judgment in this case was reserved by the undersigned
during her posting as ASJ-06, New Delhi District, Patiala House
Courts. Vide Circular No. 40/D-3/Gaz.IA/DHC/2025 dated
17.10.2025, Hon'ble High Court of Delhi has directed that the
judicial officers under transfer shall pronounce judgments /
orders in all such matters notwithstanding the posting / transfer.
Pursuant to the aforesaid order, the case is taken up by this
Court for pronouncement of judgment).
JUDGMENT
1. Vide this judgment, I shall decide appeal u/s 415 of
BNSS impugning judgment dated 15.10.2024 and order on
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sentence dated 26.10.2024 passed in CC No. 2305/2019 titled as
“Ravinder Kumar Aggarwal Vs. Davinder Kumar Singhal” by
Ld. JMFC (N.I Act)-03, Patiala House Court, New Delhi. For
the sake of convenience, in this appeal the parties shall be
referred to their original position before Ld. Trial Court. The
appellant was the accused and the respondent was complainant
before the Ld. Trial Court.
2. Brief facts leading to the filing of the present appeal are
that the complainant filed complaint u/s 138 NI Act stating that
he and one Davinder Kumar Aggarwal entered into agreement
to sell dated 15.05.2018 for transfer of share in “Hind Tradex
(Food) LLP” to the accused. As per the agreement, the shares of
the complainant were transferred to the accused. In discharge of
partial liability, the accused had issued cheque in question of Rs.
15 lacs bearing no. 071610 dated 30.11.2018 drawn on ICICI
Bank. At the time of issuance of the said cheque, the accused
assured that the cheque would be honored on presentation.
When the complainant presented the cheque, the same was
returned unpaid with the remarks ‘payment stopped by the
drawer’. The complainant sent a legal notice dated 28.12.2018
to the accused. The accused failed to make the payment despite
receipt of legal notice. Thereafter, the complaint under Sec. 138
NI. Act was filed. Cognizance of offence was taken. Pre-
summoning evidence was recorded by Ld. M.M. and the
accused was summoned to face trial. On appearance of the
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accused, notice under Sec. 251, Cr.PC was framed against the
accused. The accused cross-examined the complainant who was
examined as CW1. The accused was examined under Sec. 313,
Cr.P.C. r/w Sec. 281 Cr.P.C. wherein he took the defence that he
had made payment by cash. The accused also examined himself
in defence as DW1. The accused also examined Sh. Devender
Kumar Aggarwal, brother of the complainant as DW2 and
Manish Aggarwal, son of the complainant as DW3. DE was
closed. After hearing of final arguments, the accused was
convicted for offence punishable under Sec. 138 N.I. Act vide
impugned judgment dated 15.10.2024 Vide order on sentence
dated 26.10.2024, the accused was sentenced to undergo simple
imprisonment for three months and he was also directed to pay
fine of Rs. 20,25,000/- towards compensation to the
complainant. In default of payment of fine, the accused was
directed to undergo simple imprisonment of three months.
3. Challenging the judgment of conviction dated 15.10.2024
and order on sentence dated 26.10.2024, the accused has
preferred the present appeal.
4. Notice of the appeal was issued to the complainant. The
complainant appeared. The complainant filed reply to the appeal
and opposed the appeal. Thereafter, the appeal was fixed for
arguments.
5. Ld. Counsel for the appellant/accused would argue that
the respondent/complainant alongwith and his brother Sh.
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Devender Kumar Aggarwal had approached the accused to sell
their share in an LLP namely “Hind Tradex (Food) LLP” and
they had entered into a general agreement dated 15.05.2018.
The accused had handed over one cheque of Rs. 45 lacs to the
complainant towards payment of consideration amount for the
shares of the complainant. On the request of the complainant,
the accused had paid total amount of Rs. 45 lacs by cash
installment, out of which Rs. 30 lakh was collected by the son
of the complainant and Rs. 15 lakh was collected by the son of
the brother of the complainant. The accused, on the request of
the complainant, had firstly issued a cheque of Rs. 45 lacs, then
after making part payment in cash, issued the cheque in favour
of the complainant for balance amount and in this manner, the
accused has lastly issued a cheque for Rs. 15 lacs in favour of
the complainant after making the payment of Rs. 30 lakh in
cash to the son of the complainant. The intention of the
complainant became dishonest after becoming aware that the
accused had paid the said balance amount of Rs. 15 lacs in cash
to the son of his brother. The complainant presented the said
cheque which was lying in custody as security. Since the
accused had already paid the amount in cash against the said
security cheque, he instructed his banker not to encash the said
cheque on presentation for encashment. Ld. Trial Court without
appreciating the contentions of the accused submitted during the
course of argument as well as the evidence led by the accused in
defence, wrongly convicted the accused for the offence u/s 138
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of N.I. Act. Ld. Trial Court grossly erred in taking the
conclusion of his own without appreciating the contention of the
accused that as per the agreement Ex. CW-1/DX1, the
complainant had to withdraw the complaint case as per Clause
5.4 of the said agreement. DW2, who is brother of the
complainant has specifically deposed that Rs. 15 lakh demanded
by his brother against the cheque in question is wrong on the
part of his brother. The complainant during his cross
examination has intentionally and deliberately avoided the
question put to him regarding receipt of payment in cash by his
son from the accused. He avoided the said question on flimsy
pretext that he had not authorized his son to collect any payment
on his behalf. A person, who has collected a cheque of Rs. 45
lakh cannot accept a cheque of Rs. 15 lakhs and return the said
cheque of Rs. 45 lakhs without receiving the payment of the
difference amount in cash. While passing the impugned
judgment, Ld. Trial Court has not appreciated and considered
document Ex. DW1/E and Ex. DW1/F which clearly reflect the
receipt of payment from the accused, for and on behalf of the
complainant by his son and his brother’s son. The accused has
been a victim of conspiracy between the complainant and his
son. Ld. Trial Court failed to appreciate that the accused has no
liability towards the complainant for paying the cheque amount.
The Ld. Trial Court has not appreciated arguments advanced
and has passed an arbitrary order based upon conjectures and
surmises. The initial burden to prove the guilt of the accused
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lies on the complainant. Also, the standard of proof is beyond
reasonable doubt. The Hon’ble Ld. MM erred in thinking that
the presumption u/s 139 N. I. Act, 1881 extended to the extent
that the accused had to disprove the case of the respondent/
complainant whereas the presumption u/s 139 N.I. Act, 1881
was rebuttable one and the evidence adduced had to be weighed
on the scale of preponderance of probabilities and onus on the
complainant was much higher of proving his case beyond
reasonable doubts which Ld. MM failed to appreciate as per
law. Hence, the impugned judgment of conviction and order on
sentence may be set-aside and the appellant/convict may be
acquitted.
6. On the other hand, Ld. Counsel for Complainant would
argue that the appeal filed by the accused has no merit. The
accused has admitted total liability of Rs. 45 lacs which was
required to be paid by him towards share of the complainant in
LLP and the shares were also transferred to the accused. The
accused has falsely submitted that he had paid entire amount of
Rs. 45 lacs to the complainant in cash. The cheque of Rs. 15
Lacs was issued by the accused to the complainant in discharge
of part liability towards total liability of Rs. 45 lacs. The
accused has made contradictory statements in the trial. One the
one hand, the accused has stated that he had paid entire amount
of Rs. 45 lacs to the complainant in cash. On the other hand, he
has stated in appeal that a sum of Rs. 30 lacs was given to the
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son of the complainant and Rs. 15 lacs was given to the son of
the brother of the complainant. The accused has admitted his
signature on the cheque and the presumption arose in favour of
the complainant. The accused admitted his liability of Rs. 45
lacs towards purchase of 25% shares of the complainant in the
LLP. He has admitted receipt of legal demand notice. The
accused has relied upon receipt Ex.DW1/E alleged to be signed
by the son of the complainant. The son of the complainant was
also examined as DW3 and he has denied his signatures on the
receipt Ex. DW1/E. The accused opted not to send the receipt
for forensic examination by handwriting expert. The accused
has also relied upon receipt Ex.DW1//F which would show that
Nikhil Aggarwal (son of brother of complainant) had received
the payment of Rs. 15 lacs on behalf of his father Devender
Kumar Aggarwal and he did not receive any amount on behalf
of the complainant. Ld. Trial Court properly appreciated the
evidence led by both the parties and after careful examination of
the facts and circumstances, the accused was convicted. No
document has been placed by the accused to show that the son
of the complainant or son of the brother of the complainant was
ever authorized by the complainant to accept any payment from
the accused in respect of sale of share of the complainant. The
grievance of the accused are baseless, illegal and imaginary and
there is no ground to file the appeal. Ld. Trial Court has duly
considered all the material on record, evidence led by the parties
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and arguments advanced by the parties. Hence, it is prayed that
the appeal may be dismissed.
7. This Court has considered the submissions and perused
the material on record. Trial Court record also perused.
8. In order to conclude that the cheque in question was
issued towards discharge of liability, Ld. Trial Court has relied
on the presumption provided under Sections 118 and 139 of the
Act. Section 139 of the Act provides presumption in favour of
holder of a cheque. It mandates that it shall be presumed, unless
contrary is proved, that a 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 any other liability. The
presumption under Section 139 of the Act is a legal presumption
that the cheque was issued for discharging an antecedent
liability, however, it is a rebuttable presumption and the person
issuing the cheque is at liberty to rebut it. Similarly, Section 118
of the Act provides a presumption that until the contrary is
proved, it shall be presumed that the negotiable instrument was
drawn for a consideration and the holder of negotiable
instrument is the holder in due course.
9. Hon’ble Apex Court has held in “Rangappa Vs Shree
Mohan” 2010 (V) AD SCC 565 that the presumption mandated
by Section 139 of the Act does indeed include the existence of
legally enforceable debt and liability. Hon’ble Apex Court has
held in the matter of “Hiten P. Dalal Vs Bratindranath
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Banerjee”, AIR 2001 SCC 3897 that Section 139 of the Act
introduces an exception to the general rule as to the burden of
proof in criminal cases and shifts the onus on the accused. The
court further observed that it is a presumption of law and does
not conflict with the presumption of innocence. The court held
that the presumption available under Section 139 can be
rebutted by the accused by adducing evidence.
10. In the present case, at the time of framing of notice under
Sec. 251 Cr.PC, the accused had taken defence that he had paid
the entire amount of Rs. 45 lakhs, out of which some amount
was paid to son of the brother of the complainant.
11. During cross-examination of the complainant, suggestion
was given to him that an amount of Rs. 30 lacs was given by the
accused to the complainant towards complete
settlement/discharge of its liability against all sale of shares.
Further, suggestion has been to the complainant that son of the
complainant, namely Manish Aggarwal has received Rs. 30 lacs
from the accused.
12. Thereafter, in his statement under Sec. 313 Cr.PC, the
accused has taken defence that the cheque was given only for
security purpose in a blank signed condition. He had entered
into partnership and share of the complainant of approximately
Rs. 45 lacs was to be paid by him and he had already paid the
entire share. He had paid some amount to the son of the brother
of the complainant and he has also got acknowledgment in this
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regard. Since he has repaid the entire amount qua the cheque in
question, there is no legal liability in favour of the complainant.
13. In his evidence as DW1 also, the accused has stated that
he had paid some amount to the son of brother of the
complainant and there is no legal liability.
14. Hon’ble Supreme Court in the matter of “P.Rasiya Vs
Abdul Nazer” in Crl. Appeal No.1233-1235 of 2022 decided on
12.08.2022 that once the initial burden is discharged by the
complainant that the cheque was issued by the accused and the
issuance of the cheque was not disputed by him, the onus would
shift upon him to prove to be contrary and complainant is not
required to show the nature of transaction or source of funds.
15. In the case, the accused has admitted that he had issued
the cheque in question and that later at the request of the
complainant, the amount was paid in cash and the security
cheque was misused by the complainant and he has no legal
liability towards the cheque in question.
16. The burden was upon the accused to prove that he had
made payment of Rs. 15 lacs against the cheque in question to
the complainant.
17. One of the argument of Ld. counsel for the accused is that
the son of the complainant and son of brother of the
complainant had received cash from the accused and there is no
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liability of the accused to make any payment to the complainant
against the cheque in question.
18. On the other hand, Ld. Counsel for the complainant
would argue that the accused has failed to show that the
complainant has authorized his son to receive payment on his
behalf or that any payment was received by the son of the
complainant as the son of the complainant during his evidence
has denied execution of receipt Ex.DW1/E. The accused opted
not to get the receipt examined through handwriting expert.
Further, the receipt of payment to son of brother of the
complainant would show that the payment was received by Mr.
Nikhil Aggarwal on behalf of his father (brother of
complainant) and not on behalf of the complainant. The accused
has failed to show that he had made payment in cash against the
cheque in question to the complainant.
19. I have considered the submissions of counsels and
perused the record.
20. Record would show that at any stage, i.e. during notice
under Sec. 251 Cr.PC or statement under Sec. 313 Cr.PC or in
his evidence as DW1, the accused has not taken stand that any
payment was made to the son of the complainant by way of
cash. Though in his examination-in-chief, the accused has
exhibited the receipt stated to be signed by the son of the
complainant as Ex. DW1/E, however in his examination-in-
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chief as DW1, the accused did not state that he made any
payment to son of the complainant.
21. Further during cross-examination of CW1/ complainant,
question was put to him regarding payment to his son. CW1 has
stated that Mr. Manish Kumar Aggarwal is his son, he had not
authorized his son to deal/enter into transaction on his behalf
and he had not authorized his son to accept any payment from
the accused. CW1 has denied that his son Manish Aggarwal
received Rs. 30 lacs from the accused.
22. The accused also examined Mr. Manish Aggarwal, son of
the complainant in defence as DW-3. DW-3 Manish Aggarwal
was shown document/receipt Ex.DW1/E during his
examination-in-chief and he has denied that he had signed the
receipt of Rs. 30 lacs. Nothing has come in the evidence of
DW-3 to doubt his statement that he did not receive cash from
the accused on behalf of the complainant. The accused has not
brought any other material to show that the son of the
complainant had received any cash from him (accused) on
behalf of the complainant.
23. Further, perusal of the receipt Ex.DW1/E would show
that it does not bear any date under the signature. Even the
accused in his evidence has not stated as to when the receipt
Ex.DW1/E was signed by Manish Aggarwal, son of the
complainant. No other evidence has been produced by the
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accused to show that he had given cash to the son of the
complainant.
24. The accused has also relied upon the receipt Ex. DW1/F
to show that he had made payment of Rs. 15 Lacs in cash
towards cheque in question. The receipt Ex.DW1/F reads as, “I
Nikhil Aggarwal received Rs. 15,00,000/-(Rupees fifteen lakhs
only) from Davender Kumar Singhal S/o Sh. Mangal Ram
Singhal R/o A-2/137, Pashchim Vihar, New Delhi-110063 On
behalf of certificate no. IN-DL-26537147199969Q Dated
15/May/2018 Mr. Devender Kumar Aggarwal S/o Late Brij
Mohan Aggarwal R/o G-85, South City-1, Gurugram-122001
Haryana.”
25. The receipt Ex.DW1/F would suggest that the payment of
Rs. 15 Lacs received by the son of brother of the complainant
was on behalf of Sh. Devender Kumar Aggarwal (brother of the
complainant) and not on behalf of the complainant. The
document Ex.DW1/F is of no help to the accused and it does not
prove that the accused has made payment of Rs. 15 Lacs to the
son of brother of the complainant towards the cheque in
question.
26. The accused has also examined Sh. Devender Kumar
Aggarwal, brother of the complainant as DW2 to prove that he
had no liability against the cheque in question. DW2 has
deposed as under :-
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“I am younger brother of the complainant Sh. R.K. Aggarwal
and were together in the company, namely Prayag Polytech Pvt.
Ltd. which is now being headed by R.K. Aggarwal. Now, the
company in question i.e.Hind Tradex Foods LLP. In this
company we two brothers were directors/partners along with
two other partners/directors namely Shivam and Dayawanti.
This company was sold to Sh. Davinder Kumar Singhal and his
wife Ms. Sushma Ji. 25% of the share holding of mine was
transferred to Ms. Sushma Ji and 25% share of R.K. Aggarwal
was transferred to Sh. Davinder Kumar Singhal. The deal was
for Rs. 1.10 crore in total and that was told to me by Sh. R.K.
Aggarwal because he was heading the deal. Rs.25,000/- against
shares was received in mine account from Ms. Sushma Ji and
Rs.25,000/- was received in R.K. Aggarwal account against
2500 shares each valuing Rs.10/- each. Now, out of Rs. 1.10
crore, Rs. 50 lacs were to be on account and rest Rs.60 lacs
were to be received by way of cash. This all information was
given to me from time to time by Sh. R.K. Aggarwal, my elder
brother. From my account, there was a loan of Rs.24.75 lacs to
the company i.e. Hind Tradex Foods LLP and another Rs.24.75
lacs loan from R.K. Aggarwal's account to the aforementioned
Hind Tradex Foods LLP company. These two amounts of
Rs.24.75 lacs each were transferred to both of us i.e. R.K.
Aggawal and me by way of cheque in around 18th May, 2018.
Out of Rs.60 lacs, Rs.15 lacs cheque was received by me and
was duly encashed in May though it was to be in cash form.
Rs.45 lacs cheque was taken by R.K. Aggarwal. Later on
because of Income Tax R.K. Aggarwal told the buyer that it has
to be in cash form and subsequently Rs.8 lacs was given by Sh.
Davinder Singhla after taking back the cheque for Rs.45 lacs
and issued another cheque for Rs.37 lacs. This payment was
done on around 20.08.2018. Another Rs.7 lacs was given by Sh.
Davinder Singhla on 31.08.2018 and that day it took back the
cheque and given him another cheque for Rs.30 lacs. The same
way another Rs.15 lacs were paid on 20.09.2018 and balance of
Rs.15 lacs cheque was given. I was still to get rest Rs.15 lacs
from total Rs.30 lacs (Rs. 15 lacs received by way of cheque). I
approached Sh. Anuj Goel, the common friend and asked him
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for my balance Rs.15 lacs payment from Sh. Davinder Singhal.
This Rs.15 lacs balance in cash was received by my son
Sh.Nikhil Aggarwal on 28.11.2018 and thereby Sh. Davinder
Kumar Singhal got the cheque stop for payment and after it the
cheque with R.K. Aggarwal was presented and naturally got
returned (Stop payment). Now, both of us got Rs.30 lacs each
and the deal was over but because of this stop payment cheque,
the case was filed against Sh. Davinder Kumar Singhal by Sh.
R.K Aggarwal or Sh. Ravinder Kumar Aggarwal. Sh. Davinder
Kumar Singhal asked me to return Rs.15 lacs because R.K.
Aggarwal was demanding Rs.15 lacs against cheque. This was
wrong on his part i.e. R.K. Aggarwal. We two brothers had
parted business and thereby through Hon'ble NCLT, Jaipur
Bench, it was mentioned in the para no.5.4 of the order that this
case has to be taken back by R.K. Group (R.K. Aggarwal).
XXXXX by Sh. Inder Chand, Ld. Counsel for complainant.
It is not within my knowledge whether any agreement for sale of
shares in Hind Tradex Foods LLP for Rs.1.10 crore was
executed between buyer and sellers or not (Vol. The value of the
10,000 shares were only Rs. 1 lacs). Q. Whether you and your
brother transferred of their share in LLP namely Hind Tradex
Foods LLP to Ms. Sushma Ji and the accused Sh. Davinder
Kumar Singhal for a consideration of Rs. 1.10 crore as you
stated in your examination-in-chief? A. Yes. (Vol. Out of Rs.
1.10 crore, Rs.50,000/- was taken in personal accounts in both
the brothers and Rs.24.75 lacs each was taken from Hind
Tradex Foods LLP by both brothers since this payment of
Rs.49.50 lacs was paid to Hind Tradex Foods LLP account for
being loan given by both of us). Q. You have stated that the
entire deal was of Rs. 1.10 crore, whether the loan given by
both of you and your brother amounting to Rs.24.75 lacs to
each and Rs.25,000/- as application money against shares. Is it
correct? A. Yes. Q. I put to you that Rs.24.75 lacs was not paid
by the accused but the same was refunded by Hind Tradex
Foods LLP against the loan granted by you and your brother.
Whether it is correct or not? A. No (Vol. This Rs.24.75 lacs each
was given to the company ie. Hind Tradex Foods LLP by both
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the selling persons. This Rs.49.50 lacs entry as a loan otherwise
could not have been deleted). At this stage witness is shown
Ex.CW-1/1 and has been asked whether he has signed the said
document Ex.CW-1/1 at point B. Witness states that he has
signed at point B on the document Ex.CW-1/1 (Vol. This
agreement was done by R.K. Aggarwal on behalf of the
company and everything was informed to me verbally by R.K.
Aggarwal and I was asked to signed the paper without going
through the matter. I was not aware of the matter). Q. At this
stage, witness is shown deposition of DW-1 dated 09.01.2024
and has been asked about the sale consideration of Rs.45 lacs
to be paid to complainant by the accused as admitted in his
statement. A. It is correct (Vol. The amount mentioned is Rs.45
lacs approximately which was 50 lacs on account that's what he
has mentioned and I already mentioned the same in my earlier
statement).I deal in normal course of business in unaccounted
cash for business transactions. (Vol. I deal in cash with respect
to capital goods). At this stage, witness is shown Ex.CW-1/DX1
and has been asked whether this document is correct or not.
Witness states that Ex.CW-1/DX1 is correct document. I have
signed the said document Ex.CW-1/DX1 on each and every
page. At this stage, paragraph no.17.1, 17.2 and 17.3 of
Ex.CW-1/DX1 is shown and has been asked whether contents of
the said paragraph numbers are correct or not. Witness states
that they are correct.
It is wrong to suggest that I had provided
copy of the settlement agreement which was confidential, to the
accused. (Vol. The agreement has been done in February, 2020
and the said deal of the property pertains to the year May,
2018). I do not know whether accused had given Rs.45 lacs
towards the sale consideration of share of complainant in the
Hind Tradex LLP or not (Vol. That out of Rs.45 lacs, Rs.8 lacs
were given on 20.08.2018 and Rs.7 lacs were given on
31.08.2018 and new cheque of Rs.30 lacs was given as per my
statement above). It is wrong to suggest that the complainant
has not received Rs. 15 lacs qua the cheque in question. (Vol.
Out of balance Rs.30 lacs, complainant has to receive Rs.15
lacs because I have received Rs.15 lacs on 28.11.2018 through
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Sh. Nikhil Aggarwal i.e. my son). It is wrong to suggest that I
am deposing falsely.” (emphasis supplied)
27. DW-2 has deposed that payment of Rs. 15 lacs was
received by his (DW-2) son as the said amount was due towards
his share. The testimony of DW-2 does not suggest that he
(DW2) or his son (DW2’s son) was instructed by the
complainant to receive payment from the accused towards
cheque in question. The testimony of DW-2 does not suggest
that the complainant had received payment from the accused
against the cheque in question. The specific statement of
DW-2/brother of the complainant that he did not know whether
accused had given Rs.45 lacs towards the sale consideration of
share of complainant, make it clear that he (DW-2) was not
having any knowledge whether his brother/complainant
received the payment against the cheque in question. There is
nothing in the testimony of DW-2 to suggest that payment of
Rs. 15 lacs received by the son of DW-2 was against the cheque
in question.
28. In his evidence as DW-1, on question to the
DW-1/accused by Ld. Counsel for the complainant, “
In
document Ex.DW1/F filed by you, you have stated that a sum
of Rs. 15 lacs had been given to one Sh. Nikhil Aggarwal S/o
Devender Kumar Aggarwal against agreement executed on
stamp paper bearing no DL-26537147199969Q dated
15.05.2018. Why you have given Rs. 15 lakhs to Nikhil
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Aggarwal?”, the DW-1/accused has answered, “
I and my (sic)
purchased 25% share each in Hind Tradex Foods LLP for an
amount of Rs. 25,000/- each. As per the verbal agreement, the
50% liability of Hind Tradex Foods LLP towards other
expenses was also of me and my wife and therefore, as per the
asking of Ravinder Kumar Aggarwal and his brother Devender
Kumar Aggarwal, I paid an amount of Rs. 60 lacs out of which
Rs. 30 lacs (by cash) was given to Ravinder Kumar Aggarwal
and Rs. 15 lacs (by way of cheque) was given to Devender
Kumar Aggarwal and Rs. 15 lacs (by cash) was given to son of
Devender Kumar Aggarwal i.e. Nikhil Aggarwal.”.
29. The accused has not disputed agreement dated
15.05.2018 which is Ex.CW1/1 as per which the accused had to
make payment of Rs 45 Lacs to the complainant. As per the
aforesaid statement made by DW-1/accused, he had made
payment of only Rs. 30 Lacs to the complainant and 30 Lacs
was given to the brother of the complainant, (cheque of 15 lacs
to Devender Kumar Aggarwal and cash of 15 lacs to Nikhil
Aggarwal). The statement of DW-1 would suggest that the share
of the complainant was Rs. 45 lacs as per the agreement
Ex.CW1/1 however, the accused had made payment of only Rs.
30 lacs to the complainant.
30. During testimony, DW-2 Devender Kumar Aggarwal was
also admitted the written agreement dated 15.05.2018 which is
Ex.CW1/1. As per the agreement Ex.CW1/1, out of total
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amount of Rs. 60 lacs, the accused had to make payment of Rs.
15 lacs to Devender Kumar Aggarwal and Rs. 45 lacs to the
complainant. The aforesaid testimony of the accused and
Devender Kumar Aggarwal would suggest that out of Rs. 60
lacs, Rs. 30 lacs was given to the Devender Kumar Aggarwal.
The testimony of DW-1 and DW-2 are not prima facie sufficient
to establish that the accused had made payment towards the
cheque in question.
31. The accused has prima facie failed to show that the
brother of the complainant or his (brother’s) son was authorized
by the complainant to receive payment on his behalf against the
cheque in question. The accused has also prima facie failed to
prove that he had made any payment in cash to the complainant
or his authorized representative against the cheque in question.
32. Another argument of Ld. Counsel for the accused is that
the family agreement between the complainant and his brother
Devender Kumar Aggarwal contains a clause that complainant
shall withdraw case filed against Singla Foods for an amount of
Rs. 15 lacs and the complainant has admitted the execution of
family settlement which is Ex.CW1/DX1. It is argued that the
fact that the complainant had agreed to withdraw the present
complaint case filed against the accused would suggest that
payment against the cheque in question was made in cash and
therefore, the complainant had agreed to withdraw the
complaint u/s. 138 N I Act filed against the accused.
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33. On the other hand, Ld. Counsel for the complainant
would argue that the Ld. Trial Court duly examined the scope of
Ex.CW1/DX relied upon by the accused. Ld. Trial court has
observed that their is nothing on record to suggest that the said
clause talks about the present case or accused had anything to
do with Singla Foods. The accused was not a party to the
agreement and he has not even taken defence during trial in this
regard. Clause 5.4 of the agreement is not related to the present
complaint u/s 138 NI Act.
34. I have considered the submissions and perused the record.
35. Record would show that when the complainant was
shown agreement between R.K. Group and D.K. Group
Ex.CW1/DX1, he admitted execution of the said agreement.
During evidence, CW1/complainant has stated that he did not
know any partnership firm or company by the name of Singla
Foods and he did not have any idea if any case against company
Singla Foods had been filed by him for an amount of Rs. 15
lacs. CW1 has denied that clause 5.4 of the agreement
Ex.CW1/DX1 was in relation to withdrawal of the present
complaint u/s 138 NI Act filed by him against the accused.
36. Since the complainant has denied that clause 5.4 of the
agreement was in respect of the complaint u/s. 138 N I Act filed
against the accused, the burden was upon the accused to show
that clause 5.4 of the agreement between R.K. Group and D.K.
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Group was in relation to complaint u/s. 138 NI Act filed by the
complainant against the accused.
37. The clause 5.4 of the agreement Ex. CW-1/DX1 reads as,
“
5.4 Within 30 (thirty) calender days from the occurance on the
Order Date, RK Group will withdraw the legal proceedings
filed against Singla Foods under Section 138 of the Negotiable
Instruments Act for dishonour of a cheque for INR 15 lakhs.”
38. The agreement Ex.CW1/DX1 was entered into between
the parties on 30.12.2019. The complaint u/s. 138 N I Act was
filed by the complainant against the accused on 13.02.2019 i.e.
long prior to the agreement. There is no reason as to why if the
complainant and his brother agreed that the complainant would
withdraw complaint u/s. 138 N I Act against the accused,
complete details of the case and correct details of the party were
not mentioned therein. The accused has not brought any
evidence to show that he had any concern with firm “Singla
Foods” or that clause 5.4 of the agreement Ex.CW1/DX was in
respect of the complaint u/s. 138 NI Act lodged by the
complainant against him (accused). Therefore, this Court is of
the view that the accused has prima facie failed to show that the
clause 5.4 of the agreement Ex. CW1/DX1 was in respect of
complaint u/s.138 NI Act lodged against the accused.
39. Another arguments of Ld. Counsel for the accused is that
an amount of Rs. 24,75,000/- has been deposited by the accused
in the account of “Hind Tradex (Foods) LLP” and the said
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amount was further transferred in the account of complainant. It
is argued that entire amount onwards the share of the
complainant had been paid to him and nothing is outstanding.
40. On the other hand, Ld. Counsel for the complainant
would argue that the amount of Rs. 24,75,000/- transferred by
the accused to the LLP had no concern to the agreement with
the complainant. Further, the said amount was transferred by
LLP in the account of the complainant because the complainant
had given loan to the LLP and the LLP had repaid the loan back
to the complainant.
41. I have considered the submissions and perused the record.
42. In his evidence, the complainant has admitted that he had
received payment of Rs. 24,75,000/- from the LLP. He has
further stated that he had advanced loan of Rs. 24,75,000/- to
the LLP in 2016 which was repaid by the LLP on 18.05.2018.
He has also proved balance sheet of Hind Tradex (Foods) LLP
ending on 31.03.2018 as Ex.CW1/DX4 showing an amount of
Rs. 24,75,000 as loan payable to the complainant by Hind
Tradex (Foods) LLP and bank statement Ex.CW1/DX5 showing
transfer of Rs. 24,75,000/- by the complainant to Hind Tradex
(Foods) LLP. The brother of the complainant/DW-2 has also
answered in affirmative that the loan given by him and his
brother to the LLP amounted to Rs. 24.75 lacs each. There is no
material brought by the accused to show that an amount of Rs.
24.75 lacs transferred by him in the account of Hind Tradex
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(Foods) LLP was in respect of share transfer agreement between
the accused and the complainant and Devender Kumar
Aggarwal.
43. This Court finds strength in the argument of counsel for
the complainant that the accused has taken contradictory stand
in his defence. At the time of notice u/s. 251 CrPC, the accused
has taken defence that he has paid some amount to son of
brother of complainant. However, during cross-examination of
the complainant suggestion was given to him that the
complainant had received entire amount in cash. Later in his
statement u/s. 313 CrPC, the accused has taken stand that some
payment was made in cash to the son of brother of the
complainant. The record is clear that the accused has taken
contradictory stand as to whom the payment was made by way
of cash. The accused has also failed to prove even on the
preponderance of probability that he had paid amount of Rs 15
lacs by way of cash to the complainant or his authorized
representative against the cheque in question.
44. The defence of the accused that the cheque was a security
cheque is also of no help to him. Hon’ble Supreme Court, in the
case of Sripati Singh vs. The State of Jharkhand & Anr : 2021
SCC Online SC 1002., has provided much needed clarity on the
often-used defence of a cheque having been issued as ‘security’
in proceedings under the N I Act. Hon’ble Apex Court held that
a cheque issued by way of security, if dishonoured, would
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attract the provisions of the Act, if the same is issued in
consequence of a legally enforceable debt, which has become
recoverable at the time of its presentation. In the said case, the
complainant advanced a sum of Rs. 2 crore to accused as loan
on assurance that the same shall be repaid. The loan transaction
was reduced to writing and the accused also issued six cheques
aggregating the advanced amount, as security. After the loan
repayment date, the complainant presented the cheques and the
same were returned due to insufficient funds and the
complainant filed a complaint under Section 138 of the Act. Ld.
JMFC took cognizance of the Complaint, issued summons to
the accused and rejected the petition of the accused seeking
discharge. Hon’ble Jharkhand High Court set aside the aforesaid
orders passed by the Ld. Magistrate. The complainant
approached the Supreme Court assailing the order passed by the
High Court. Hon’ble Supreme Court observed that simply
pleading that cheque in question was a security cheque is not
sufficient and the accused must establish that there was no
liability of the accused on the date the cheque was presented for
encashment. Hon’ble Supreme Court relied on the decision
passed in
Sampelly Satyanarayana Rao vs. Indian Renewable
Energy Development Agency Ltd and M/S Womb Laboratories
Pvt. Ltd. in support of its findings. It was held that a cheque
issued as security, pursuant to a financial transaction, cannot be
considered as a worthless piece of paper. A security is given,
deposited or pledged to ensure the fulfilment of an obligation
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undertaken. If a cheque is issued to secure repayment of a loan
advanced and if the loan is not repaid on or before the due date,
the drawee would be entitled to present the cheque for payment,
and if such a cheque is dishonoured, the consequences
contemplated under Section 138 of the Act would follow. When
a cheque is issued and is treated as ‘security’ towards repayment
of an amount, with a time period being stipulated for
repayment, all that it ensures is that such cheque cannot be
presented prior to the date of repayment. A prior discharge of
the loan is a sine qua non for the drawee to not present such a
cheque for payment. Hon’ble Supreme Court clarified that the
nature of the cheque (whether issued as security or not) is
irrelevant for initiation of proceedings under the Act, so long as
amounts were due and payable on the date when the cheque is
deposited. This is not to say that such a defence is not available
to a party, who, for example, has repaid their monetary
obligation under a commercial agreement, but has not been
returned the cheque(s) issued as security. If such cheque(s) are
deposited and bounce, the defence that the said cheques were
merely issued as security, and that the underlying debt has been
discharged, will still be a valid defence under the Act.
45. In the present case also, even if the defence of the
accused is considered that the cheque was a security cheque, the
accused has failed to show that there was no liability towards
the complainant on the date of presentation of cheque. Ld. Trial
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Court has rightly held that the accused has failed to establish
any defence and failed to rebut the presumption u/s. 118 and
139 N I Act and the accused also failed to show any
contradiction or discrepancy fatal to the case of the complainant
that presumption raised against it stands rebutted.
46. In view of discussions herein-above, this Court finds no
infirmity in the judgment of the Ld. Trial Court. The trial court
has rightly held the appellant / accused guilty of committing
offence punishable under Section 138 of Negotiable Instruments
Act. This Court holds that the present criminal appeal has no
merits. The appeal is dismissed.
47. As regards the quantum of sentence, it is informed by the
appellant that he is aged about 71 years, he is suffering from
various old age ailments and he is not having any other criminal
case pending against him except the present case and a lenient
view may be taken against him.
48. Ld. Trial Court has sentenced the appellant with simple
imprisonment for a period of 3 months and he was also directed
to pay fine of Rs. 20,25,000 towards compensation.
49. Considering the age of the appellant and the fact that the
appellant is having no other involvement in any criminal case,
sending the appellant to imprisonment would be a severe
punishment for a person who is senior citizen. In these
circumstances, the sentenced of the Trial Court is partially
modified and the convict is sentenced to pay double the cheque
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amount towards compensation to the complainant. The sentence
of simple imprisonment of 3 months is modified and the convict
is directed to pay the double of the cheque amount within one
week from today in the account of the complainant. The receipt
of transfer of money in the account of the complainant be
placed before the Trial Court within one week. In case, the
convict fails to deposit the compensation amount in the account
of the complainant within one week from today, he shall
undergo simple imprisonment for a period of 30 days.
50. The sentence of the convict/appellant is modified
accordingly. Copy of this judgment be supplied to the appellant
against acknowledgment.
51. The trial court record be sent back along with the copy of
this order for information.
52. Appeal file be consigned to Record Room after
completion of necessary formalities.
Pronounced in the open
Court on this 17th November, 2025
(NEHA)
District Judge-06, South East
Saket Courts, Delhi.
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