Final Order 8

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SH. DHIRENDRA RANA, SPECIAL
JUDGE (NDPS), NORTH DISTRICT, ROHINI, DELHI.
Crl. Appeal no. 9/23 (DLNT01-000119-2023)
Rajneesh Madan
S/o Sh. Suman Prakash Madan,
R/o R-26, Second Floor,
Rajouri Garden,
New Delhi-110027.
…....... Appellant
VS
Kamlesh
S/o Sh. Narayan Sonkar
R/o 13/55, Ground Floor,
Subhash Nagar
New Delhi-110027.
.........Respondent
Date of Institution : 06.01.2023
Date of Reserving the Judgment : 13.10.2023
Judgment Pronounced on : 20.11.2023
JUDGMENT
1. This is a Criminal Appeal preferred by the Appellant herein
(accused before the Ld. Trial Court) against the judgment dated
08.08.2022 and order on sentence dated 28.11.2022 passed by the
Ld. MM, North, Rohini Courts, in Complaint case no. 3706/18
under section 138 N.I Act titled as Kamlesh Vs Rajneesh Madan
whereby the accused / appellant herein has been sentenced to
undergo simple imprisonment for a period of eight months and to
pay fine of Rs. 5,50,000/- to the complainant and in default of
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payment of fine, the accused / appellant to undergo SI for a period
of two months.
2. For the sake of convenience, I would be referring to parties as
per their nomenclature before the trial court. Therefore, Rajneesh
Madan would be referred to accused / convict and Kamlesh would
be referred to complainant.
3. The facts in brief are that the complainant is a trader engaged
in trading of fruits and is running his business from his shop at 12/1,
Subhash Nagar, New Delhi in the name and style of Amit Fresh
Fruit. The accused is also doing business of fruits and is operating
from Azadpur Mandi and is known to the complainant for many
years and they also reside in the adjacent areas of Subhash Nagar
and Rajouri Garden.
3.1 The accused approached the complainant in the month of
March, 2017 and requested for a friendly loan of Rs. 3,00,000/- for
one year. Initially the complainant refused but on repeated requests
made by the accused, complainant advanced a loan of Rs. 3,00,000/-
on 15.03.2017. At the time of taking the loan, the accused assured
the complainant to repay the loan within one year. But on repeated
requests, the accused issued cheque bearing no. 000056 dated
15.04.2018 of Rs. 3,00,000/- drawn on Punjab & Sind Bank, Rajouri
Garden Branch, Delhi. On presentation, the cheque got dishonoured
with remarks “Funds Insufficient” vide cheque returning memo
dated 05.06.2018. Thereafter, complainant sent legal notice dated
27.06.2018 with a request to make the payment within 15 days. But
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despite service of legal notice, accused failed to make the payment.
Hence, the complaint was filed by the complainant before the Ld.
Trial Court on 13.08.2018.
3.2 The Ld. Trial Court after conclusion of the trial, passed the
impugned judgment 08.08.2022 thereby convicting the accused and
order on sentence dated 28.11.2022 was passed against the convict.
4. Feeling aggrieved, the appellant/accused challenged the
impugned judgment and order on sentence on the following
grounds:
(a) Ld. Trial Court failed to appreciate that there is lot
of contradiction in the complaint filed by the
complainant and his statements made during cross
examination.
(b) Ld. Trial Court failed to appreciate that during
cross examination, complainant stated that he knows the
accused since year 2016 and he met the accused at
Azadpur Mandi where the consignment of sweet
Tamarind (imli) of the accused used to come through
container and accused used to import the same from
foreign country. However, in the complaint, complainant
has stated that accused is also doing the business of
fruits and is operating from Azadpur Mandi and he knew
the complainant from many years. He stated in his
complaint that he advanced the loan of Rs. 3,00,000/- to
the accused on 15.03.2017. During cross examination,
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complainant stated that he paid the said amount of Rs.
3,00,000/- to the accused in cash but he has no
documentary proof to show that he advanced the said
loan to the accused. Further, as per the version of the
complainant, cheque in question was given to the
accused by filling all particulars in the cheque, however,
during his cross examination, complainant admitted that
when the cheque in question was issued, only amount
and signature were present on the cheque. The
complainant further stated that word ‘Kamlesh’ and date
on the said cheque was got written by him from one
person Mr. Yadav at Azadpur Mandi and he presented
that cheque on the same date. It is submitted that during
cross examination, complainant had stated that house of
accused at Rajouri Garden is approximately 100 meters
away from his shop and this fact is sufficient to prove
that complainant misused the cheque in question and it
was not given against any liability as the complainant
has not furnished any documentary proof to show that he
advanced the alleged loan to the accused.
(c) Ld. Trial Court has failed to appreciate specific
contention of accused that he has not taken any loan
from the complainant as he had no need to take the
alleged loan amount from the complainant.
(d) Ld. Trial Court failed to appreciate the fact that
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complainant stated that he advanced the loan of Rs. 3 lac
in cash to the accused on 15.03.2017 and the said loan
amount had not been disclosed by the complainant in his
Income Tax Return despite being Income Tax Assessee
and if the complainant advanced the said loan in cash to
the accused then why he agreed to receive the said
alleged loan amount by way of cheque from the accused,
in addition to that there was nothing to show that the
complainant was in possession of the money to give as a
loan to accused to whom he was not even related or
acquainted for a long time.
(e) The Ld. Trial Court failed to appreciate that if the
accused issued the cheque in question to the complainant
in discharge of his liability, then he could issue the same
by filling the name of the complainant and date also or
the complainant could get filled up his name and date on
the cheque in question from the accused at the relevant
point of time or by visiting the house of accused, which
was not far away from his shop. The complainant also
failed to explain as to why he got filled up his name and
date on cheque in question from one Mr. Yadav at
Azadpur Mandi.
(f) Ld. Trial Court failed to appreciate that
complainant had failed to prove his case against the
accused beyond reasonable doubt. The complainant had
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failed to prove any entry in his bank account showing
withdrawal of any amount during the relevant period or
to advance the huge loan amount.
(g) Ld. Trial Court failed to consider that the
complaint case was not filed within the stipulated period
under the provisions of section 138 NI Act as the legal
notice dated 27.06.2018 was served upon the accused on
28.06.2018, hence, 15 days from the receipt of said legal
notice had expired on 12.07.2018. Accordingly, the
complaint was to be filed till 11.08.2018 but the
complaint case was filed on 16.08.2018 without any
application for condonation of delay.
(h) Ld. Trial Court has committed grave error by
sentencing the accused to undergo simple imprisonment
of eight months and further fine of Rs. 5,50,000/- to be
paid to the complainant and the said sentence is against
the principle of natural justice and is on higher side.
5. The Ld. Counsel for the accused argued on the lines of
grounds pleaded in the appeal and prayed for setting aside the
judgment passed by Ld. Trial Court. In support of his arguments,
Ld. Counsel for the accused has relied upon the judgments titled as
Jai Bhagwan Panwar Vs Sangeeta Rani, Crl L.P. No. 14 of 2013
decided on 21.08.2014 ; Satish Kumar Vs State of NCT of Delhi &
Anr., Crl. L.P. 95/2006 decided on 01.08.2013 ; Inderjit Narula Vs
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Rohit Dua & Anr, Crl L.P. 540/14 decided on 28.01.2015 and M/s
Pinak Bharat & Company Vs Anil Ramrao Naik etc., Crl Appeal
no. 1630/2011 decided on 02.12.2022.
6. Per contra, Ld. Counsel for the complainant has rebutted all
the aforementioned contentions. According to him, Trial court has
meticulously evaluated the entire situation in alignment with
established principles governing the evaluation of evidence and in
adherence to the law. He asserts that this case justifiably invoked
statutory presumptions, which accused failed to disprove in any
conceivable manner.
6.1 Ld. Counsel for the complainant has argued that there is no
delay in filing the complaint and the same was filed within the
limitation period and the Ld. Trial Court vide order dated
18.10.2018 clarified that the complaint was filed within limitation as
it was filed on 13.08.2011 (Monday) which was preceded by Sunday
(12.08.2011) and Second Saturday (11.08.2011).
6.2 Further, in the appeal, the accused has admitted to have been
served with the legal notice dated 28.06.2018 but during the entire
trial, he had denied receiving of legal notice.
6.3 It is stated that in the notice framed under section 251 Cr. PC,
accused had taken a defence that cheque in question was given to
the complainant on his representation for a deal of Kiwi fruit which
was to be imported by some importer, however, the said deal could
not be finalized. Additionally, he contends that the claim of accused
that the cheque in question was given for security purpose and
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misused, lacks substantiation.
6.4 Lastly, it is submitted on behalf of the complainant that there
is no infirmity or illegality in the impugned judgment and order on
sentence which calls for any interference and the present appeal is
liable to be dismissed. In light of these arguments, he prays for the
dismissal of the appeal.
7. I have given my thoughtful consideration to the rival
contentions and carefully perused the entire record. I have also
gone through the case laws relied upon on behalf of accused and
complainant.
ANALYSIS AND FINDINGS:
8. Having thoroughly considered both parties arguments and
carefully examined the records, I now record my findings.
9. As per section 118(a) of the NI Act, until the contrary is
proved, the presumption shall be made of consideration that every
negotiable instrument was made or drawn for consideration. As per
Section 139 of NI Act, it shall be presumed, unless the contrary is
proved, that the holder of a cheque received the cheque, of the
nature referred to in Section 138 of NI Act for the discharge, in
whole or in part, of any debt or other liability. Indisputably, accused
can always rebut the same.
10. In Rangappa v. Sri Mohan, (2010) 11 SCC 441, a three
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Judge Bench of the Apex Court observed that if the accused in a
complaint under Section 138 of the NI Act admits his signatures on
the cheque, presumption that the cheque pertains to a legally
enforceable debt or liability arises under Section 139 of the NI Act.
Such presumption is rebuttable in nature and the onus is on the
accused to raise a probable defence.
11. While explaining the nature of presumption given under
section 118 (a) of the NI Act, the Apex Court in Bharat Barrel &
Drum Mfg. Co. v. Amin Chand Pyarelal, (1999) 3 SCC 35 held as
under: -
"12. Upon consideration of various judgments as noted
hereinabove, the position of law which emerges is that
once execution of the promissory note is admitted, the
presumption under Section 118(a) would arise that it is
supported by a consideration. Such a presumption is
rebuttable. The defendant can prove the non existence of a
consideration by raising a probable defence. If the
defendant is proved to have discharged the initial onus of
proof showing that the existence of consideration was
improbable or doubtful or the same was illegal, the onus
would shift to the plaintiff who will be obliged to prove it
as a matter of fact and upon its failure to prove would
disentitle him to the grant of relief on the basis of the
negotiable instrument. The burden upon the defendant of
proving the non-existence of the consideration can be
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either direct or by bringing on record the preponderance
of probabilities by reference to the circumstances upon
which he relies. In such an event, the plaintiff is entitled
under law to rely upon all the evidence led in the case
including that of the plaintiff as well. In case, where the
defendant fails to discharge the initial onus of proof by
showing the non-existence of the consideration, the
plaintiff would invariably be held entitled to the benefit of
presumption arising under Section 118(a) in his favour.
The court may not insist upon the defendant to disprove
the existence of consideration by leading direct evidence
as the existence of negative evidence is neither possible
nor contemplated and even if led, is to be seen with a
doubt. The bare denial of the passing of the consideration
apparently does not appear to be any defence. Something
which is probable has to be brought on record for getting
the benefit of shifting the onus of proving to the plaintiff.
To disprove the presumption, the defendant has to bring
on record such facts and circumstances upon
consideration of which the court may either believe that
the consideration did not exist or its non-existence was so
probable that a prudent man would, under the
circumstances of the case, shall act upon the plea that it
did not exist."
12. In Basalingappa v. Mudibasappa, (2019) 5 SCC 418, the
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Supreme Court, after evaluating various precedents, summarized
the principles as under: -
"25 We having noticed the ratio laid down by this Court in
the above cases on Sections 118(a) and 139, we now
summarize the principles enumerated by this Court in
following manner: 25.1. Once the execution of cheque is
admitted Section 139 of the Act mandates a presumption
that the cheque was for the discharge of any debt or other
liability.
25.2. The presumption under Section 139 is a rebuttable
presumption and the onus is on the accused to raise the
probable defence. The standard of proof for rebutting the
presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused
to rely on evidence led by him or the accused can also rely
on the materials submitted by the complainant in order to
raise a probable defence. Inference of preponderance of
probabilities can be drawn not only from the materials
brought on record by the parties but also by reference to
the circumstances upon which they rely.
25.4. That it is not necessary for the accused to come in
the witness box in support of his defence, Section 139
imposed an evidentiary burden and not a persuasive
burden.
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25.5. It is not necessary for the accused to come in the
witness box to support his defence."
13. It is thus settled law that the burden to rebut the presumption
under Section 139 NI Act is on the accused. Such burden is,
admittedly, to the extent of "preponderance of probabilities". It has
also repeatedly been observed that the accused can rely on the
evidence brought on record by the complainant to rebut the
presumption, and it is not necessary that he must lead
separate/direct evidence. For substantiating plea of non-existence
of consideration or there being no liability at all, appellant is
required to bring some material or had to demonstrate hollowness
in the case of complainant. Mere bald and unsubstantiated
assertions shall never be sufficient to disprove the presumption.
Thus, accused is obliged to set up a probable defence. It cannot be
premised on the mere ipse dixit of the accused.
14. Reference be also made to judgment - Lekh Raj Sharma v.
Yash Pal Gupta, 2015 SCC OnLine Del 10074, wherein our own
High Court has held that once the signatures on the cheque is
admitted, accused cannot escape his liability on the ground that the
same had not been filled in by him. When a blank cheque is signed
and handed over, it means that the person signing it has given
implied authority to the holder of the cheque, to fill up the blanks
which he had left.
15. While the established legal principles remain uncontested, it
should be noted that the accused can indeed rebut the presumption
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raised against him.
16. In the present case, it is evident and unequivocal that the
accused has acknowledged his signature on the subject cheque. I
have seen the said cheque Ex. CW-1/1. It bears the signature of
accused, which he has never contested. However, he maintains that
he did not fill the date and same was given to the complainant for
security purpose. It is pleaded that complainant approached the
accused and gave a proposal to get a good deal of kiwi, six months
prior to the date of the cheque in question. Accused handed over the
cheque in blank condition to the complainant for that kiwi deal
which was never materialized and complainant misused the cheque
by filing the present case. It is argued that accused and complainant
are residing in vicinity and if cheque was issued towards discharge
of legal liability, then complainant could have approached the
accused for filling the remaining particulars in the cheque instead of
getting the same filled by somebody else at Azadpur Mandi.
17. Given that the accused acknowledges his signature on the
cheque, the statutory presumption comes into play. He cannot then
raise an objection that he did not fill the date and name on the
cheque. Under Section 20 of the NI Act, when an individual hands
over a blank cheque to another, he inherently grants the holder the
authority to complete the pertinent details.
18. At the time of framing of notice u/s 251 Cr. PC and statement
under section 313 Cr. PC, accused pleaded that he had issued the
cheque in question to the complainant and the said cheque bears his
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signature. He stated that the cheque in question was given to the
complainant without name and date, on the representation of
complainant that he had a good deal of kiwi. While stating so,
accused has admitted issuance of cheque. The only aspect remains
to be pondered over is whether or not complainant has misused the
cheque by getting filled the remaining particulars from one Mr.
Yadav at Azadpur Mandi.
19. The law is settled that if a person issues a cheque after signing
the same, then he permits the holder of cheque to fill in the
remaining particulars and the conduct of the accused is squarely
covered by Section 20 of NI Act. In Surya Laxmi Cotton Mills Ltd
Vs Ms Rajver Industries Limited (2008 II) AD, SC 381, it was held
by the Hon’ble SC that if a person gives duly signed but a blank or
partly written cheque, he deem to have given implied authority to
the holder to fill up the particulars in it and complete it and thus,
make him liable for the payment mentioned in it. Applying the ratio
of the Hon’ble Supreme Court to the present case, it is not in dispute
that cheque in question was not signed by the accused. Complainant
was at liberty to fill the remaining particulars personally or through
someone else as he is an illiterate person. Why would he approach
the accused to get the particulars filled in the cheque so much so,
when the accused had duped him by taking a handsome loan and did
not repay the same. Hence, I find no merit in the contention of the
accused that complainant has misused the cheque by not getting it
filled from the accused and from somebody else.
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20. Moreover, the story of the Kiwi deal proposed by the accused
has been adequately dealt with by the Ld. Trial Court and observed
that the same lacks substance for want of evidence. It is admitted
case of the accused that he used to import fruits from foreign and if
that was the case, then how come he issued a cheque of a particular
amount to the complainant without having any details of the said
deal. It is nowhere mentioned as to from whom the kiwi was to be
purchased, on which date it was to be purchased and how many
meetings took place between the parties for the said purpose.
Accused is a well educated businessman and it could have been
natural conduct on his part to enquire about his cheque or the status
of kiwi deal from the complainant. There is no communication on
behalf of accused in this regard. Ld Trial Court has rightly observed
that the conduct of the accused in this regard is highly unnatural and
improbable of a educated businessman. Therefore, the theory of
kiwi deal has fallen flat for want of evidence which has not been led
by the accused in defence. Hence, this defence is of no avail to the
accused and accordingly, he cannot escape from liability to pay the
cheque amount to the complainant.
21. Ld. Counsel for the accused has tried to put up a case that the
case is not maintainable against the accused as the complainant did
not disclose the alleged loan in his ITR. It is stated that the alleged
transaction was barred by section 269 SS of the Income Tax Act and
being illegal transaction, the alleged debt was not legally
enforceable and recoverable.
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22. The issue raised by accused is that the complainant has not
mentioned the loan transaction in his ITR and moreover, he
allegedly gave the loan of Rs. 3 lacs in cash to the accused. This
issue has been deliberated over in judgment Guddo Devi @ Guddi
Vs Bhupender Kumar in Crl Revn P. 1246/2019 and Crl. M. (Bail)
2090/2019 by the Hon’ble DHC wherein it is held that any person
violating section 269 SS of the Income Tax Act would attract legal
consequences under the said act but same does not render the said
debt unenforceable or precludes the lender from recovering the
same. In the present case also, the loan transaction was not disclosed
by the complainant in his ITR. Therefore, mere absence of
mentioning the loan transaction in ITR or advancing the loan in cash
to accused may attract consequences to the complainant but his
complaint cannot be dismissed on these grounds which is otherwise
maintainable under NI Act. Hence, argument on this aspect is
misconceived and accordingly, stands rejected.
23. During the course of arguments, a doubt has been raised on
behalf of accused about the financial capacity of the complainant to
lend the loan to the accused and doubts were raised regarding the
source of his income. It is stated that complainant has not placed on
record any evidence to prove the fact that he withdrew the alleged
loan amount from any bank for advancing the loan to the accused in
or around the alleged time of advancing the loan. The argument of
defence regarding the complainant's available funds, lacks
substantive merit. There is no suggestion in the cross examination of
CW-1 that he was not capable enough to lend Rs. 3 lacs to the
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accused. This ground has been raised only in this appeal and seems
to be an after thought. Moreover, the aspect of financial status of the
complainant to grant loan has been dealt with in judgments titled as
Rohitbhai Jivanlal Patel Vs. State of Gujarat, (2019) 18 SCC 10;
and P. Rasiya Vs. Abdul Nazer, 2022 SCC Online SC 1131.
24. It is also argued on behalf of accused that complaint is time
barred as the limitation period to file the complaint got expired on
11.08.2018 whereas the complaint was taken up by the court on
16.08.2018. The argument is misconceived on the basis of facts.
The legal notice was served, as per the tracking report on the
accused, on 28.06.2018. The period of limitation started running
from 29.06.2018 If we calculate 45 days from 29.06.2018 then the
last day to file the complaint was 12.08.2018 which was a public
holiday being Sunday. As per record, the complaint was filed on
13.08.2018. However, it was taken up by Ld. MM on 16.08.2018
but it was none of the fault of the complainant as he had filed the
complaint on 13.08.2018 and same was well within the limitation
period as per NI Act. Moreover, an application for condonation of
delay was moved on behalf of complainant but same was not
pressed as complaint was within limitation period. The Ld. MM
issued the summons to the accused after considering the limitation
period and other circumstances. Therefore, I find no merit in the
argument that complaint is time barred.
25. The question has also been raised on behalf of accused that
complainant has failed to produce any documentary proof that he
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advanced loan of Rs. 3 lacs to the accused. It is further pointed out
that it is nowhere mentioned in the complaint that loan was
advanced in cash, however, this fact has been admitted during cross
examination of the complainant. It is also pleaded that accused
being a well to do businessman, had no reason or occasion to take
loan from the complainant.
25.1 All these aspects are based upon probabilities which are not
sufficient enough to rebut the presumption accrued in favour of
complainant by virtue of NI Act. In the complaint, complainant has
not specified whether loan was advanced in cash or by some other
mode but when it was enquired during his cross examination on
behalf of accused, then he made it clear that the loan was advanced
in cash. As stated above, dealing in cash for more than Rs. 20,000/-
may attract penal consequences as per Income Tax Act but the
complaint cannot be dismissed merely on this ground. It is correct
that the complainant has not placed on record any documentary
proof to support loan transaction but similar standard has to be
applied to the accused. He also failed to produce any documentary
proof that he handed over the cheque to the complainant as security
for deal of kiwi fruit. Accused cannot blow hot and cold at the same
time. He is insisting upon the complainant to produce documentary
proof whereas he is completely silent as to why he did not obtain
any acknowledgment from the complainant at the time of handing
over the alleged security cheque. It is a matter of record that
accused has not led any evidence to support his theory of kiwi fruit
deal and handing over security cheque to the complainant. As far
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as need of accused to obtain from the complainant is concerned, it
could have been supported by the accused on the basis of
documentary evidence to show his financial status, if he was serious
enough to make the court believe his stand. Mere bald submissions
which are not corroborated from the conduct as well as documents,
are of no consequence in this case. Therefore, all these aspects are
unsubstantiated for want of concrete and reliable evidence.
26. After considering the evidence presented by both parties and
thoroughly reviewing the records, it is evident that there is no legal
irregularity in the conclusions drawn in the impugned order. I am of
the firm opinion that the Trial Court's decision to find the accused
guilty under Section 138 of the NI Act is entirely justified and the
Ld. Trial Court has dealt with all defences put up by the accused
appropriately on the basis of case laws and apt reasoning.
27. Regarding the sentence, it is noted that the convict was
sentenced undergo simple imprisonment of eight months and also to
pay fine of Rs. 5,50,000/- to be paid as compensation to the
complainant and in the event of non-payment, the convict was
directed to further undergo simple imprisonment for a period of two
months. However, when the appeal was admitted, the accused was
instructed to deposit 20 % of the compensation amount in the form
of FDR (Rs. 1,10,000/-) in favour of the court and same was
complied with by the accused. As far as submission of complainant
is concerned against the order on sentence that the accused should
have been sentenced with imprisonment for a period of one year
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with fine twice the amount of cheque and the sentence and
compensation is inadequate, I am of the considered view that Ld.
Trial Court has passed the order on sentence after considering all the
mitigating circumstances involved in the present case.
28. Considering the facts and circumstances of this case, all the
grounds pleaded on behalf of the appellant have been dealt with by
the Ld. Trial Court with proper reasoning and I find no illegality or
infirmity in judgment dated 08.08.2022 and order on sentence
dated 28.11.2022 which requires any interference. Therefore, the
impugned judgment is hereby upheld. The appeal is dismissed
accordingly.
29. A copy of this judgment along with trial Court record be sent
back to the Trial Court.
30. A copy of this judgment be supplied to the appellant free of
cost.
Announced in the Open Court (Dhirendra Rana)
on 20.11.2023 Addl. Sessions Judge/
Spl. Judge (NDPS), North
District, Rohini Courts,
Delhi.
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