TMI Blog2017 (8) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy of the revision petition. This Court deems it appropriate that the sentence of the petitioner be reduced to the period which he has undergone in custody.The amount of ₹ 6 lakhs which has been deposited by the petitioner shall be released in favour of the complainant/respondent No.1 on the respondent No.1 appearing before the Registrar General after 30 days of passing of this order. - CRL.REV.P.607/2016 - - - Dated:- 10-8-2017 - MR ASHUTOSH KUMAR J. Advocates who appeared in this case: For the Appellant: Mr. Rajiv Wadhwa with Mr. Himanshu Mr. Bhupinder Singh. For the Respondent No.1: Mr. Pradeep Kumar Arya with Mr. L.K. Dahiya and Mr. Raj Karan Sharma. For the Respondent No. 2: Ms. Neelam Sharma, APP. JUDGMENT ASHUTOSH KUMAR, J 1. Dilip Chawla was tried and convicted under Section 138 of the Negotiable Instruments Act, 1881 vide judgment dated 26.08.2014, passed by the learned Metropolitan Magistrate in CC No.142-1/2 and was sentenced vide order dated 24.02.2016 to undergo SI for six months, to pay a compensation of ₹ 6,00,000/- (Rs.6 lakhs) within two months of passing of the order failing which to suffer S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No.1/complainant is an Income Tax assessee, he has admitted that in the year 2007, he did not show the transaction of loan in his returns. 8. It has, therefore, been argued on behalf of the petitioner that in the absence of any written agreement with the complainant regarding grant of loan and no receipt regarding such payment, it was difficult to believe that such an amount was advanced to the petitioner. It has further been urged that in this background, if the Income Tax return for the year 2007 does not show any loan transaction, it cannot be believed that the loan was given to the petitioner. 9. The petitioner did not lead any evidence at the trial. 10. The petitioner, in his statement recorded under Section 313 of the Code of Criminal Procedure has stated that his tenant Jaspreet owed some money to the respondent No.1/complainant and he gave the aforesaid cheque to bail out his tenant Jaspreet from the trouble. 11. The Trial Court, therefore, held that the petitioner had failed to discharge the onus to rebut the presumptions against him as he had failed to raise a probable defence. Accordingly, the petitioner was convicted and sentenced as aforesaid. 12. Simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n shall apply unless-- (a) the cheque has been presented to the bank within a period of *six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation .-- For the purposes of this section, debt or other liability means a legally enforceable debt or other liability. Section 139- Presumption in favour of holder 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 for the discharge, in whole or in part, of any debt or other liability. 15. For the application of provision of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itial presumption is in the favour of the complainant. 21. In Rangappa vs. Sri Mohan (Supra), section 139 of the NI Act is stated to be an example of a reverse onus clause which is in tune with the legislative intent of improving the credibility of negotiable instruments. Section 138 of the NI Act provides for speedy remedy in a criminal forum, in relation to dishonour of cheques. Nonetheless, the Supreme Court cautions that the offence under Section 138 of the NI Act is at best a regulatory offence and largely falls in the arena of a civil wrong and therefore the test of proportionality ought to guide the interpretation of the reverse onus clause. An accused may not be expected to discharge an unduly high standard of proof. A reverse onus clause requires the accused to raise a probable defence for creating doubt about the existence of a legally enforceable debt or liability for thwarting the prosecution. The standard of proof for doing so would necessarily be on the basis of preponderance of probabilities and not beyond shadow of any doubt . 22. It is not necessary that every loan transaction is required to be entered into after an agreement. True it is that if an agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loan, by cash, beyond ₹ 20,000/-, in my opinion, cannot be countenanced. 8. Yet another reason for this opinion is Sec. 271 -D which reads thus:- 271-D. Penalty for failure to comply with the provisions of Section 269-SS. ( 1) If a person takes or accepts any loan or deposit in contravention of the provisions of Section 269-SS, he shall be liable to pay, by way of penalty, a sum equal to the amount of the loan or deposit so taken or accepted. 2) Any penalty imposable under sub-section (1) shall be imposed by the Joint Commissioner. In that if a person takes or accepts any loan or deposit in contravention of Sec. 269-SS is liable to pay, by way of penalty, a sum equal to the amount of the loan or deposit so taken or accepted, as may be imposed by the Joint Commissioner. 11. The contravention of Section 269 SS though visited with a stiff penalty on the person taking the loan or deposit, nevertheless, the rigor of Section 271D is whittled down by Section 273B, on proof of bonafides. It cannot therefore be said that the transaction of the nature brought before this court could be declared illegal, void, and unenforceable . 26. Thus from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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