Contact us   Feedback   Annual Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2017 (2) TMI 413 - DELHI HIGH COURT

2017 (2) TMI 413 - DELHI HIGH COURT - TMI - Offence under Section 138 NI Act - Cheque bounce - Held that:- The cheque has been signed by the accused is not denied by the accused. This itself raises a presumption against the accused under Section 139 of Negotiable Instruments Act that the cheque had been issued in respect of an outstanding debt or for consideration. The accused had claimed in his defence that the said cheque had been delivered to one Manoj Kumar from whom he had taken a loan, whi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Kumar in respect whereof the cheque had been issued. However, the accused did not produce the so-called Manoj Kumar to establish his loan transaction with Manoj Kumar, and also to establish that he had delivered the cheque in question to Manoj Kumar. No document evidencing the alleged loan transaction with Manoj Kumar was produced by the accused. He did not produce his own accounts / ITR to show that he had reflected the so called loan taken by him from Manoj Kumar in his books. The statement o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

to why the cheque allegedly given to Manoj Kumar was, firstly, given in blank i.e. without name and, secondly, why it was not taken back at the time of repayment of the loan to Manoj Kumar. No notice or communication was issued by the accused to Manoj Kumar, recording that the loan had been repaid but the cheque not returned. The accused also did not stop payment of the said cheque by issuing any communication to his bank contemporaneously. The stand taken by the accused that documents Ex CW-1/1 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

to secure a loan taken from Manoj Kumar, was not at all probabalised. - For all the aforesaid reasons, the impugned judgment is set aside and, since all the ingredients of the offence under Section 138 NI Act are established in the present case, the respondent/ accused is convicted of the offence under Section 138 of Negotiable Instruments Act. - CRL.L.P. 555/2015 - Dated:- 2-2-2017 - MR. VIPIN SANGHI J. Petitioner Through: Mr. Vikram Gujral and Mr. Dhurv Bose, Adv. Respondents Through: Mr. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

m of Settlement (MOS) dated 15.10.2010 (Ex. CW-1/1); the receipt executed by the accused on the same day i.e. 15.10.2010 (Ex. CW-1/X), and; the promissory note dated 15.10.2010 (Ex. CW-1/2 colly). The cheque dated 15.06.2011 was issued towards repayment of the loan as recorded in the MOS dated 15.10.2010. Despite this being the position, the Trial Court has travelled into a wholly unnecessary area of inquiry, by inquiring into the financial capacity of the complainant. On this aspect, it is subm .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ng of loan from Manoj Kumar was evidenced, much less, the return of loan was evidenced. It was not explained as to why the cheque was not taken back from the so-called Manoj Kumar when the loan taken from him was allegedly repaid, and why the accused took no steps if the cheque was not returned by Manoj Kumar even though the loan was allegedly repaid. 4. In my view, the present is a fit case for grant of leave as the impugned judgment appears to be laconic. Leave granted. Crl A. No.............. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e accused run their shops in the same market and they had cordial relationship. About 3-4 years prior to filing of the complainant, the shop of the accused was engulfed in a fire, and it was completely gutted. The goods of the accused were also burned. In that background, the accused approached the complainant for a loan of ₹ 3 lacs and assured him to repay the loan within one year with interest @ 18% p.a. 8. The complainant advanced a loan of ₹ 3 lacs in cash to the accused. Thereaf .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

same day i.e. 15.10.2010 (Ex. CW-1/X), and a promissory note for the same amount, on the same day (Ex. CW-1/2). 9. Simultaneously, the accused also issued the cheque in question drawn in favour of the appellant for ₹ 7.30 lacs - which was a post dated cheque dated 15.06.2011. The case of the appellant was that when the said cheque was presented for payment, it was returned with the remark account closed vide memo dated 28.06.2011. Consequently, a demand notice was issued dated 15.07.2011 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

as part time driver and was also engaged in the business of selling ice. The complainant also led in evidence the aforesaid documents, namely, the MOS, receipt and promissory note. 11. In his statement recorded under Section 313 Cr PC, the accused admitted that his shop no.58 caught fire and the goods therein were completely burned in the year 2007. He denied to have ever approached the complainant to obtain a loan of ₹ 3 lacs with interest @ 18% p.a. He also denied the settlement set up b .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d Manoj Kumar are from the same hometown, Manoj Kumar has provided my cheques alongwith promissory note to the complainant. Apart from the cheque in question there are other three cheques are in possession of complainant. In fact the complaint has liability of ₹ 3.50 lakhs towards me . 12. The Trial Court has acquitted the accused on the premise that the witnesses to Ex CW-1/1, CW-1/2 and CW-1/X had not been produced by the appellant. The complainant in his cross examination had stated tha .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d time when he visited Patiala House Courts for executing the said documents. The Trial Court also proceeded to examine the financial capacity of the complainant and doubted his capacity to advance the loan to the accused. This was on the premise that the appellant stated that he used to drive an auto, while he had also claimed that he runs a dairy shop and was also having a part time business of selling ice. The complainant also stated that he did not file any income tax returns. 13. The Trial .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ase. He has been unable to prove his financial capacity nor has he been able to show when and how the loan was provided. Questions have been raised with respect to the authenticity of documents Ex. CW1/1, CW1/2 and CW1/X and he has given contradictory and inconsistent statement with respect to the contents thereof and he was not aware whether any other witness was present during the execution of the same or not. He has not examined any other person except himself to show proof of execution of th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

amounts of ₹ 75,000/-, ₹ 80,000/- and ₹ 70,000/- to the accused at different intervals. 15. Learned counsel submits that the complainant had deposed that he was not earning for the last 3-4 years (when he deposed on 21.03.2014), and that he was totally out of job. He also stated that when the loan was provided to the accused I earned about ₹ 50,000/- per month excluding my expenses. I used to run my dairy shop and also worked as driver and had part time ice business . 16 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

MoU Ex. CW1/1 however the other shop keeper of the market were aware that the accused had taken loan and there had been a confrontation between me and the accused in their presence . 18. Learned counsel submits that the entire testimony has to be read and understood in a meaningful way and the later part of the statement, obviously, meant that apart from the parties and the named witnesses, no other witness were present at the time of execution of the MOS. 19. Learned counsel for the appellant .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

noj Kumar against a loan taken from him, which had been handed over by Manoj Kumar to the complainant. However, the transaction between the accused and Manoj Kumar was never proved by leading any cogent evidence. 20. The accused had appeared as his own witness as DW-1. In his cross examination, the accused/DW-1 admitted that he had not issued any letter or notice to Manoj Kumar for return of the blank cheque issued by him to Manoj Kumar. Learned counsel also points out that it was suggested to t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the bank to close his account pertaining to the cheque in question. He also admitted that he had not written any letter to the complainant to return the cheque in question. 21. On the other hand, counsel for the respondent/ accused has supported the impugned judgment. Learned counsel submits that the complainant could not establish his financial capacity to advance such a large amount. He further submits that the MOS was signed by the complainant as Mukesh Verma, though he claimed his name as Mu .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ly laconic, unsustainable in law, and deserves to be set aside. The approach of the Trial Court while rendering the impugned judgment is completely misdirected, and the Trial Court has failed to take into account the most relevant and germane aspects of the case. 23. First and foremost, the fact that the cheque has been signed by the accused is not denied by the accused. This itself raises a presumption against the accused under Section 139 of Negotiable Instruments Act that the cheque had been .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

on under Section 139 of Negotiable Instruments Act is a rebuttable presumption, and the standard of proof required to rebut the said presumption is on preponderance of probabilities. On the other hand, the standard of proof required to establish the guilt of an accused in a criminal trial is, beyond reasonable doubt. 25. In the present case, the initial burden was on the accused to probablise his defence. It was for the accused to establish upon preponderance of probabilities, his defence that h .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

in his books. The statement of the accused is as vague, as could be. He gives no particulars of the amount of loan taken from Manoj Kumar; the date of the said loan transaction; the manner in which it was taken - i.e. whether in cash or through cheque; the dates(s) of its repayment, and; the manner of its repayment i.e. whether in cash or through cheque. Though the accused claimed that he had repaid the loan to Manoj Kumar, no document evidencing repayment of the loan was produced. 26. If the st .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nts to evidence repayment of the loan. 27. The accused also did not explain as to why the cheque allegedly given to Manoj Kumar was, firstly, given in blank i.e. without name and, secondly, why it was not taken back at the time of repayment of the loan to Manoj Kumar. No notice or communication was issued by the accused to Manoj Kumar, recording that the loan had been repaid but the cheque not returned. The accused also did not stop payment of the said cheque by issuing any communication to his .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tand taken by the accused in his defence with regard to issuance of the cheque to secure a loan taken from Manoj Kumar, was not at all probabalised. Pertinently, in his statement under Section 313 Cr PC, the accused also claimed that apart from the cheque in question, there are other three cheques which are in possession of the complainant. In fact the complainant has liability of ₹ 3.50 lakhs towards me . The accused did not explain as to why or how the complainant would be in possession .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

0/-, ₹ 80,000/- and ₹ 70,000/- in installments to him. In any event, the Trial Court has gone into the said aspect. Firstly, in view of the defence disclosed and the evidence led by the complainant, such an inquiry was not even called for. Pertinently, in relation to Ex CW-1/1, CW-1/2 and CW-1/X, the accused did not lead any evidence to show that they had been fabricated by misusing any document that he may have given to the so-called Manoj Kumar. 29. The Trial Court, for the purpose .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ore, to be understood in the context of his statement of the same day made earlier, which is recorded on the same page. However, the Trial Court has conveniently only picked up the later part of the statement, by ignoring the earlier part of the testimony of the complainant. What has not been appreciated by the Trial Court, is that, the purpose of cross examination is not to test the memory of a witness. If the complainant was not able to recall the contents of the complaint and documents, it do .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Ex. CW-1/1, CW-1/2 and CW-1/X, the omission of the appellant to file his ITR pales into insignificance for the present purpose. 31. On the aspect of the complainant not producing other witnesses, the complainant had frankly stated the fact which, unfortunately, is generally true. He had stated that other shopkeepers of the market are also aware that the accused had taken money from him. However, he expressed his inability to bring any person for giving evidence in court as nobody wants to get in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ional Court. The judgment of the High Court in this case was upheld by the Supreme Court. I fail to appreciate as to for what purpose this judgment has been cited. It has no relevance to the present case. 34. Counsel for the respondent also places reliance on Kalavally v. Parthasarathy, 2009 (1) RCR (Crl) 333 decided by the Madras High Court. This decision has no application to the facts of the present case. In this case, the accused claimed that she had no transaction of any kind with the compl .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version