Final Order 7

Order Details: COPY OF JUDGMENT
Pdf Text: CA 134/2023
PALVINDER KAUR
Vs.
RAHUL BANIWAL
1
IN THE COURT OF BABRU BHAN, ADDL. SESIONS
JUDGE-03, NORTH WEST DISTRICT, ROHINI, DELHI
CA 134/2023
PALVINDER KAUR
Vs.
RAHUL BANIWAL
IN THE MATTER OF:
Palvinder Kaur
W/o. Sh. Labh Singh
R/o. WZ-125, 2nd Floor,
Gali No.2, Shri Nagar,
Delhi …Appellant
Versus
Rahul Baniwal
S/o. Sh. Dharambir
R/o. H.No.412, Sukhlal Market,
Pitam Pura, New Delhi ...Respondent
Date of Institution : 12.07.2023
Date of Judgment : 14.10.2024
JUDGMENT
1. Vide this order, this Court shall dispose of a criminal appeal
preferred against the judgment of conviction u/s.138 N.I. Act
dated 26.04.2024 and order on sentence dated 28.04.2024, passed
by Ld MM (NI Act, Digital Court-3), North-West, Rohini, in
complaint case titled as RAHUL BANIWAL Vs. PALVINDER
KAUR, bearing no.1867/2021.
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2. Before proceeding with the order on merits, this Court deems it
appropriate to reiterate the facts of the case. As per the facts
alleged by respondent / complainant, the appellant / accused and
her husband were both known to the respondent / complainant.
Both appellant / accused and her husband approached the wife of
the respondent / complainant in month of February 2020 and
requested for financial help. They assured that the amount shall
be returned within six months. On repeated requests of the
appellant / accused and her husband, respondent / complainant
advanced a loan of Rs.2 lakhs to the appellant / accused and her
husband. Respondent / complainant paid the said amount to the
appellant / accused via cheques. After expiry of stipulated period
in the first week of September 2020, respondent/complainant
asked the appellant / accused and her husband to return the loan.
On 15.09.2020, appellant / accused issued a cheque bearing
no.000066 for an amount of Rs.2 lakhs dated 15.09.2020, drawn
on Andhra Bank, Rajdhani Enclave, New Delhi-110034, in
discharge of her legal liability.
3. On presentation of the aforesaid cheque, it was returned unpaid
with remarks 'funds insufficient' vide cheque returning memo
dated 19.09.2020. Legal demand notice dated 19.10.2020 was
sent to the appellant / accused through registered post on
20.10.2020 and same was delivered upon the appellant / accused.
The case of the respondent / complainant is that the payment of
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cheque amount was not made good despite service of legal
demand notice.
4. On appearance after pre-summoning evidence, a notice u/s 251
Cr.P.C. for the offence u/s 138 N.I. Act was served upon the
appellant / accused, to which the appellant/accused pleaded not
guilty and claimed trial. In her plea of defence, appellant /
accused sought to explain that although the cheque was bearing
her signatures, but its contents were not filled by her. She further
went to explain that the cheque was issued as a security. She had
already made the payment of the cheque amount, but the cheque
was not returned.
5. To prove its case, respondent/complainant examined himself as
CW-1 and adopted his affidavit Ex. CW1/A filed in pre-
summoning evidence towards post-summoning evidence also. In
support of his case, he filed following documents:
a. Ex. CW1/1 Passbook of complainant, showing
advancement of loan.
b. Ex.CW-1/2 cheque in question.
c. Ex.CW-1/3 cheque return memo.
d. Ex. CW-1/4 legal demand notice.
e. Ex. CW-1/5 original speed post of legal notice.
f. Ex. CW1/6 track record of the speed post.
Thereafter, respondent / complainant was duly cross-
examined by Ld. Counsel for the appellant / accused.
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6. During further complainant’s evidence, respondent / complainant
examined Sh. Prabhakar Kundan, Branch Manager, Union Bank
of India, Sector-8, Rohini, Delhi, and Ms. Asha Giroh, Branch
Manager, Union Bank, Rajdhani Enclave, Delhi-110034, as CW2
and CW3 respectively on 19.11.2022.
7. The complainant's evidence was followed by statement of the
accused u/s.313 Cr.P.C. The entire incriminating evidence
produced by the respondent / complainant in support of his case,
was put to the appellant / accused wherein the appellant denied
the case of the complainant and pleaded the defence that cheque
in question was given as security and the loan amount for which
cheque in question was issued had already been repaid. She
accordingly denied her liability. She did not plead any defence
evidence.
8. Ld. Trial Court, after hearing the final arguments and
appreciating the evidence adduced, convicted the appellant for
the offence U/s. 138 of Negotiable Instrument Act vide impugned
judgment dated 26.04.2024. Thereafter, imposed the sentence
upon the appellant/accused vide order dated 28.04.2024.
9. Arguments from Ld. Counsel for the appellant and Ld. Counsel
for the respondent heard in detail.
10. To invoke Section 138 N.I. Act and to initiate legal proceedings,
following essential elements must be satisfied.
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1. Issuance of a cheque by the drawer in favour of payee.
2. Drawer has issued the cheque for discharge of any legally
enforceable debt or liability.
3. Presentation of the cheque within the period of its validity
and the dishonour of the same.
4. Issuance of legal demand notice within 30 days of receiving
the information about the dishonoured cheque.
5. Failure on part of the drawer to make the payment within
stipulated 15 days period after receipt of legal demand
notice.
11. If the payee of the cheque successfully proves the aforesaid
requirements of the offence, he has to face the legal
consequences and the provided penal implications. In this case,
the appellant / accused has not raised much dispute upon the first,
third, fourth and fifth ingredients. During his evidence,
respondent / complainant proved the cheque in question Ex.
CW1/2. The bank memo Ex. CW1/3 filed by respondent /
complainant proves that the cheque was dishonoured on account
of the reason ‘insufficient funds’. The respondent / complainant
thereafter sent a legal demand notice Ex. CW1/4 to the
appellant / accused. It is not disputed that the same was served
upon the appellant. In this manner, the case of the respondent /
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complainant appears to be undisputed on first, third, fourth and
fifth ingredients.
12. At the time of framing of notice u/s.251 Cr.P.C., appellant /
accused admitted her signatures on the impugned cheque. Again,
at the time of recording of her statement u/s.313 Cr.P.C., no
dispute was raised that the cheque bear her signatures. The only
defence taken by the appellant / accused is that cheque was
issued as security. Further pleaded that the cheque amount had
already been paid and the cheque was wrongly presented by the
respondent / complainant without any liability.
13. In case titled as
Vasant Kumar Vs. Vijay Kumari 2015 SC
Hon'ble Apex Court of India has held that once signatures and
the cheque are accepted by the drawer, the statutory presumption
U/s. 139 comes into play. Similar observations were made by
Hon'ble Apex Court of India in
M.S.Kalamani Vs. P.
Balasubramanian 2021, SC.
14. In the case in hand, the appellant / accused has not disputed his
signatures on the impugned cheque, either at the time of framing
of notice u/s.251 Cr.P.C. or at the time of statement u/s.313
Cr.P.C. No such question disputing the signatures on the
impugned cheque was put to the complainant during his cross-
examination. Since the signatures on the impugned cheque have
not been disputed by the appellant/accused, both the statutory
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presumptions contained u/s.118 & 139 N.I. Act had to be drawn
by the Trial Court to the effect that same was issued towards
discharge of liability.
15. Since the statutory presumptions are rebuttable in nature, the
appellant / accused could impeach the case of the
respondent/complainant either by leading his own evidence or
creating dent in the case of the prosecution by subjecting his to
cross-examination. In case titled as
M.S. Narain Menon Vs. State
of Kerala, SC 2004, the Hon'ble Apex Court has made following
observations on the manner of rebuttle of the statutory
presumptions. The relevant observations are :
“For rebutting such presumption, what is needed is to raise
a probable defence. Even for the said purpose, the
evidence adduced on behalf of the complainant could be
relied upon.
A Division Bench of this Court in Bharat Barrel & Drum
Manufacturing Company v. Amin Chand Payrelal [(1999)
3 SCC 35] albeit in a civil case laid down the law in the
following terms:
"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
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would shift to the plaintiff who will be obliged to prove it
as a matter of fact and upon its failure to prove would
disentitle him to the grant of relief on the basis of the
negotiable instrument. The burden upon the defendant of
proving the non- existence of the consideration can be
either direct or by bringing on record the preponderance of
probabilities by reference to the circumstances upon which
he relies. In such an event, the plaintiff is entitled under
law to 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"
This Court, therefore, clearly opined that it is not
necessary for the defendant to disprove the existence of
consideration by way of direct evidence.
The standard of proof evidently is pre-ponderance of
probabilities. Inference of pre-ponderance of probabilities
can be drawn not only from the materials on records but
also by reference to the circumstances upon which he
relies”.
16. The fact that the appellant had availed a sum of Rs.2 lakhs from
the respondent / complainant is also not disputed. As has already
been discussed above, the only defence pleaded by the appellant /
accused is that she has returned the cheque amount to the
respondent / complainant, however, nothing has been produced to
corroborate this defence or to show the alleged payment.
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17. Now, the question is whether the oral claim of the appellant /
accused that he had returned the loan amount to the respondent /
complainant can be considered as sufficient rebuttal or not. In the
legal proceedings, the oral evidence has to be excluded or
restricted by the presence of documentary evidence. The
principle that documentary evidence may exclude or limit oral
evidence is often referred to as the best evidence rule. The best
evidence rule is a principle that give primacy to the original
written or documentary evidence, when it is available and
relevant. This is because the original document presumed to be
the most reliable representation of the information it contains.
18. Here in this case, the appellant / accused has orally denied the
liability and has claimed that she had returned the cheque
amount. In presence of the written document in form of the
cheque, the oral statement of the appellant / accused that she had
returned the amount of Rs.2 lakhs cannot be taken into
consideration. In nutshell, the appellant / accused has failed to
bring anything on record to rebut the statutory presumption.
19. One more defence pleaded by the appellant / accused is that
cheque in question was issued at the time of advancing loan for
purpose of security. In context of this argument, Ld. Trial Court
has correctly relied upon judgment passed by Hon’ble Apex
Court of India in
Sunil Tori & Ors. Vs. State of Gujrat, 2021 5
SCC 435, where Hon’ble Apex Court of India has held that a
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cheque may be issued to facilitate the financial transaction
between the parties. Where acting upon the underline purpose, a
commercial arrangement between the parties has fructified, the
presentation of cheque upon the failure of buyer to pay would be
consequence well within the contemplation of the drawer. In such
a case, the cheque would be matured for presentation only after
the financial transaction and thereafter, in effect, it shall be
considered to be drawn towards legally enforceable debt. In other
words, a cheque issued at the time of loan is valid for
presentation, when the loan has become payable. The liability for
the cheque cannot be denied merely because the cheque was
issued in advance at the time of advancement. Here in this case,
the appellant / accused has not denied that liability has arisen at
the time of presentation of the cheque. Thus, this defence of
secondary cheque is also liable to be rejected.
20. The conclusion of the aforesaid discussion is that the appellant /
accused had issued the cheque in favour of the respondent. The
signatures on the cheque in question have remained undisputed.
Statutory presumptions were standing in favour of the respondent
and the onus to rebut the same was resting upon the appellant.
However, she completely failed to bring any material to prove the
alleged payment and to displace the statutory presumptions.
Respondent / complainant has successfully proved that appellant
had issued the cheque in question towards discharge of legally
enforceable liability but failed to honour the same. Thereafter, the
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appellant failed to make the payment within statutory period
despite service of legal demand notice. The offence U/s. 138 NI
Act stands proved against the appellant. The impugned judgment
of conviction has been passed by Ld. Trial Court after
considering all the defences pleaded by the appellant. This Court
does not see any reason to interfere with the same. The judgment
is accordingly upheld.
21. On quantum of sentence, Ld. Counsel for the appellant has
argued that the appellant is an old lady suffering from multiple
medical conditions. She has no source of income and she is
undergoing a financial crisis. Further, that he has faced the trial
for the last 3 years and has appeared regularly. Ld. Counsel has
also submitted that the legislative objective of the penal provision
contained in Negotiable Instrument Act is to provide a speedy
remedy and compensation to the complainant and not to punish
the accused. With these submissions, Ld. Counsel has prayed for
a lenient view.
22. On the other hand, Ld. Counsel for the respondent has submitted
that he had filed the case in year 2021, thereafter, the appellant /
accused managed to prolong the matter for about 3 long years.
During last 3 years, the respondent has not only suffered mental
harassment, but has also incurred huge money on litigation
expenses. Ld. Counsel has, therefore, prayed for maximum
punishment.
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23. Submissions on quantum of sentence heard.
24. In case titled
R. Vijayan Vs. Baby & Anr. 2012 SC, Hon’ble
Apex Court has made following observations :
“16. Having reached that stage, if some Magistrates go by the
traditional view that the criminal proceedings are for imposing
punishment on the accused, either imprisonment or fine or both, and
there is no need to compensate the complainant, particularly if the
complainant is not a `victim' in the real sense, but is a well-to-do
financier or financing institution, difficulties and complications
arise. In those cases where the discretion to direct payment of
compensation is not exercised, it causes considerable difficulty to
the complainant, as invariably, by the time the criminal case is
decided, the limitation for filing civil cases would have expired. As
the provisions of Chapter XVII of the Act strongly lean towards
grant of reimbursement of the loss by way of compensation, the
courts should, unless there are special circumstances, in all cases of
conviction, uniformly exercise the power to levy fine upto twice the
cheque amount (keeping in view the cheque amount and the simple
interest thereon at 9% per annum as the reasonable quantum of loss)
and direct payment of such amount as compensation. Direction to
pay compensation by way of restitution in regard to the loss on
account of dishonour of the cheque should be practical and realistic,
which would mean not only the payment of the cheque amount but
interest thereon at a reasonable rate. Uniformity and consistency in
deciding similar cases by different courts, not only increase the
credibility of cheque as a negotiable instrument, but also the
credibility of courts of justice”.
25. The apparent legislative intention of the provision u/s.138 N.I.
Act is to ensure that not only offender is punished, but also to
ensure adequate compensation to the complainant. No doubt, the
maximum amount of compensation can go upto twice the cheque
amount, but in appropriate cases, Court can exercise its discretion
on the quantum of compensation depending upon the facts and
circumstances of each case.
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26. Here in this case, the respondent / complainant faced the
litigation for 3 years. This long process of trial would have
incurred huge financial and mental burden upon him. However,
taking note of the age and antecedents of the appellant, the order
on sentence whereby Ld. Trial Court imposed fine of Rs.3 lakhs
and 6 months of imprisonment in default appears to be
reasonable. Accordingly, this Court does not see any reason for
interference with the impugned order on sentence. The order on
sentence is also accordingly upheld.
27. Appeal stands dismissed and disposed of with the aforesaid
directions.
28. TRC served. Let copy of this order be given to the appellant.
29. Let the TCR alongwith copy of this judgment be sent to the
concerned Court for recovery of fine, as per law for 18.10.2024.
30. No further proceedings are required to be carried out.
31. File be consigned to Record Room after due compliance.
Announced in open Court ( BABRU BHAN)
on 14th of October 2024 ASJ-03, N/W, ROHINI COURTS
DELHI
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