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CRL.REV.P. 188/2015
WILSON MATHEW
Through:
..... Petitioner
Mr.Santosh Kumar, Advocate.
versus
THE STATE NCT OF DELHI & ANR.
Through:
..... Respondents
CORAM:
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
ASHUTOSH KUMAR, J:
1.
By order dated
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960/1 and 961/1 under the same name and title namely Sanjeev Kumar
vs. Wilson Mathew.
imprisonment has been awarded but with a direction that all the sentences
shall run concurrently.
3.
sustained but the sentence was modified and instead of sentence of four
months Simple Imprisonment, the petitioner was directed to pay the
compensation amount (Rs.3,08,100/-; Rs. 2,05,400/-; Rs.2,56,750/- and
Rs. 1,54,050/-) in each of the complaint case respectively against 11
cheques along with interest of 11% p.a. within two months, to the
complainant, and in default of payment of compensation, the petitioner
was directed to suffer imprisonment for 3 months.
5.
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6.
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7.
submitted that the grounds taken in the present petition by the petitioner
were neither raised before the Trial Court nor before the Appellate Court
and that in revisional jurisdiction, the courts do not normally interfere
with the concurrent findings of conviction.
8.
covered under Section 138 of the NI Act. The onus to raise the probable
defence lies only with the accused as the law casts a presumption in
favour of the holder of the cheque that the dishonoured cheque was
issued in respect of the debt or other liability. The aforesaid onus obliges
the accused to raise a defence either by finding holes in the case of the
prosecution or by leading defence evidence which can lead the court to
believe that there is a probable defence of the accused against the claim
of the complainant with regard to the existence of legally enforceable
debt or other liability. Even though, the said onus does not impose as
stringent an obligation on the accused, as it does on the complainant who
is to prove his case beyond all reasonable doubts but raising no defence at
all would definitely not absolve the accused and it would not be in his
mouth to say that the presumption under Section 139 of the NI Act has
been rebutted.
9.
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10.
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and the accused had promised to pay the same within fixed time along
with stipulated interest.
12.
offered Satbir Singh, his cousin and Tej Raj, his associate, as CW-2 &
CW-3 respectively before the Trial Court.
14.
stated that he is a property dealer and earns from the rental income of his
property as well. In the year 2006, he worked in Capital Network Pvt. Ltd
as supervisor and was paid a salary of Rs. 8,000/- pm. He is an Income
Tax assessee. However, he has stated that he does not remember the date
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cheques from the accused for the security purpose and that the cheques
were received by him in the year 2007, at the time of handing over
money to the accused. However, the particulars in the cheques were filled
up in the handwriting of the accused. Contradictory statements, thus,
were made by the complainant during his cross-examination. In the first
part of the cross-examination, the complainant has stated that it is wrong
to suggest that he gave Rs. 10 lacs. to the accused. In the later part of the
cross-examination, the complainant has admitted of the accused having
taken an amount of Rs. 8 lacs. from him but denied the suggestion that
for such Rs. 8 lacs., he was paid and he received Rs. 8.80 lacs. from the
accused.
16.
that complaintaint told him that the accused was in need of money. He
arranged for Rs. 3 lacs., which money was paid to the accused in the
month of November-December, 2007. He has admitted of not having
shown such loan in his income tax return, even though he had a business
of transport.
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17.
took note of the fact that a legal notice for repayment of loan was sent by
the complainant to the accused on 13.12.2010, and the same was not
denied by the accused. As per that notice, the accused was asked to pay a
loan amount of Rs. 10 lacs. within a period of 7 days. The cheques in
question, as has been noted by the Trial Court, is dated 2011. The Trial
Court, therefore, came to the opinion that such issuance of cheque was
only pursuant to the notice dated 13.12.2010, which notice was not
denied by the accused and therefore, the cheques were issued indischarge of a legally enforceable debt. The Trial Court, further took
notice of the fact that neither of the parties had placed on record any loan
agreement or receipt. It was the admission of the accused that he had
taken a loan from the complainant. The difference between the assertions
made in the complaint and the admission of the accused was only with
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Let it be noted that the Trial Court recorded the arguments of the
For the same reasons, as recorded by the Trial Court, the Appellate
Court sustained the conviction of the petitioner but modified the sentence
by directing the petitioner to pay a fine amount on an enhanced rate of
interest, i.e. @ 11% p.a. within a period of 2 months and in default of
payment of compensation, the petitioner was directed to undergo SI for a
period of 3 months.
22.
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took cheques in question from the accused for security purposes at the
time of handing over the money to the accused.
23.
a period of 2 years, the cheques, even if taken as security, would not have
been dated of the year 2011. A bare reading of the complaint makes it
clear that the loan of Rs.10 lacs., as alleged by the complainant, was
taken for a period of 2 years wherein it was assured by the accused that
he principal amount plus interest would be returned in that period. In that
event, it raises a suspicion as to why the cheques which were accepted by
the accused in the year 2007 only, were signed and dated for 2011.
24.
The Trial Court gave a different logic for believing such cheques
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an attempt was made at composition of the offences but the accused was
not in a position to honor the commitment. However, the Trial Court has
recorded the statement of the complainant that he has received a sum of
Rs.8.80 lacs. by the accused. The aforesaid ordersheets were recorded
prior to the cross examination of the complainant on 02.11.2012.
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27.
complainant that he has received Rs.8.80 lacs. from the accused on the
ground that the settlement agreement was not brought on record and no
witness was examined in that regard.
28.
the complainant arranged for such money for his employer at a very high
rate of interest. The money which was arranged by the complainant from
his friend has also not been referred to in their respective ITR of the year
2007.
29.
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II.
III.
31.
33.
holder of a cheque that the same has been issued for discharge of any
debt or other liability. The existence of a legally recoverable debt is not
presumed under Section 139 of the Act.
34.
the law with respect to the burden of proof while dealing with the
presumptions under Section 139 of the Negotiable Instruments Act, has
been succinctly adumbrated. The relevant portion of the said judgment is
being reproduced herein below:
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After espousing the law in this regard, the Supreme Court also took
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45. We are not oblivious of the fact that the said provision
has been inserted to regulate the growing business, trade,
commerce and industrial activities of the country and the
strict liability to promote greater vigilance in financial
matters and to safeguard the faith of the creditor in the
drawer of the cheque which is essential to the economic life
of a developing country like India. This, however, shall not
mean that the courts shall put a blind eye to the ground
realities. Statute mandates raising of presumption but it
stops at that. It does not say how presumption drawn should
be held to have rebutted. Other important principles of legal
jurisprudence, namely, presumption of innocence as human
rights and the doctrine of reverse burden introduced by
Section 139 should be delicately balanced. Such balancing
acts, indisputably would largely depend upon the factual
matrix of each case, the materials brought on record and
having regard to legal principles governing the same."
36.
entire amount of Rs.10 lacs. has been paid in cash to the accused. That
apart, in the source, through which Rs.7 lacs. of money was garnered by
the complainant namely his relative and his associate, there is no
reference in their ITR of such loan having been advanced. CW-2 has
even gone to the extent of saying that an amount of only Rs.1 lac was
shown as loan in his ITR of the year 2007.
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38.
ICD vs. Beena Shabir and Anrs.: 2002(6) SCC 426 wherein the Supreme
Court has held that the security cheques also would fall within the
purview of the Section 138 of the NI Act and a person could not escape
his liability. As such, when there is existence of debt on the date of
presentation of the cheque and the security cheques issued are
dishonoured, the accused would be liable under Section 138 of the NI
Act.
39.
Council: 2007 (99) DRJ 251, a distinction has been drawn between two
kinds of cheques namely one issued in discharge in presenti but payable
in future and the other issued in respect of a debt which comes into
existence on the occurrence of a contingent event, and is not in existence
on the date of issue of a cheque. The latter cheque, being by way of
security cheque, will not be covered under Section 138 of NI Act. In the
aforesaid decision, definition of the word due has been given as
outstanding on the relevant date. The Court, therefore, held that the
debt has to be in existence as a crystallized demand akin to liquidated
damages and not a demand which may or may not come into existence.
However, in Suresh Chand Goyal vs. Amit Singhal (Crl.A. 601/2015
decided on 14.05.2015) the concept of security cheques were discussed.
It was held in the aforesaid case:
28. There is no magic in the word security cheque, such
that, the moment the accused claims that the dishonoured
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Leasing & Credits Ltd. vs. Shruti Investments and Anrs.: 2015 (151) DRJ
147 held as under:
30. Thus, I am of the considered view that there is no merit in
the legal submission of the respondent accused that only on
account of the fact that the cheque in question was issued as
security in respect of a contingent liability, the complaint
under Section 138 of the NI Act would not be maintainable. At
the same time, I may add that it would need examination on a
case to case basis as to whether, on the date of presentation of
the dishonoured cheque the ascertained and crystallized debt
or other liability did not exist. The onus to raise a probable
defence would lie on the accused, as the law raises a
presumption in favour of the holder of the cheque that the
dishonoured cheque was issued in respect of a debt or other
liability.
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41.
acceptance of security cheques; rather the complainant has not been able
to make out a case that the security cheques were issued in discharge of a
legally enforceable debt. Security cheques per se would not get out of
the ambit of Section 138 of the NI Act, but in the facts of the present
case, viz. the circumstance in which the security cheque is said to have
been issued by the accused and accepted by the complainant and the
admission of the complainant about his having accepted Rs.8 lacs. from
the accused and his denial of having paid Rs.10 lacs. to the accused
(referred to the cross examination of CW-1), the case of the complainant
appears to be highly doubtful.
42.
Thus both the judgment and orders cannot be sustained in the eyes
Crl.M.A.4666/2015
1.
become infructuous.
2.
ASHUTOSH KUMAR, J
SEPTEMBER 15, 2015
ab
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