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Dilip Chawla Versus Ravinder Kumar & Anr.

2017 (8) TMI 539 - DELHI HIGH COURT

Dishonor of cheque - conviction under Section 138 of the Negotiable Instruments Act - failure to discharge the onus to rebut the presumptions against - proof of legally enforceable debt - Held that:- From the complaint and the deposition of the complainant/respondent No.1 the factum of giving of loan stands established. - The petitioner did not lead any evidence. On the contrary, in his 313 statement he has taken a plea which is not at all convincing. It appears rather strange that he issued .....

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r has deposited ₹ 6 lakhs with the Registrar General of this Court for suspension of the sentence during the pendency 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 pa .....

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014, 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 SI for 10 months. 2. The petitioner challenged the aforesaid judgment of the Trial Court before the learned District & Sessions Judge (West), Delhi in Crl.Appeal No.54314/2016, which too was dismissed vide judgment dated 27.08.20 .....

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k, Janakpuri branch. It was promised by the petitioner that the interest would be paid later. The aforesaid cheque, on presentation in bank, was dishonoured for insufficiency of funds. A notice was sent in writing to the petitioner on 08.08.2012 demanding a sum of ₹ 4 lakhs but no payment was made. Hence, the complaint was lodged against the petitioner. 5. Learned counsel appearing for the petitioner has drawn the attention of this Court to the averments made in the complaint which reflect .....

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e months, the respondent No.1/complainant did not care for executing any agreement. 6. It has thus been submitted that the case made out in the complaint and in the evidence of respondent No.1 is not plausible and cannot be believed that any loan was given to the petitioner and that the petitioner was under an obligation to repay the debt. 7. During the cross examination, respondent No.1 is said to have stated that he is a property dealer by profession and that he knew one Jaspreet Singh Bhatia .....

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cult 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/compla .....

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cts emerge. There is a definite averment of the respondent No.1/complainant that he had advanced a loan of ₹ 4 lakhs on the asking of the petitioner. The respondent No.1/complainant is an Income Tax assessee but such loan amount was not shown in his Income Tax return. There is no written agreement about the loan or any receipt executed by the petitioner. The petitioner admits of signing the cheque but not towards repayment of any debt. It was stated to have been issued only for the purpose .....

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t every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; * * * * * Section 138 - Dishonour of cheque for insufficiency, etc., of funds in the account Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the .....

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or with both: Provided that nothing contained in this section 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 informatio .....

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ss 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 Section 138 of the NI Act, 3 ingredients are required to be satisfied, i.e., I. That there should be a legally enforceable debt; II. That the cheque should have been drawn from the account of the bank for discharge in whole or in part of any debt or other liability which .....

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Goa Plast (P) Ltd. vs. Chico Ursula D'souza & Anr., (2003) 3 SCC 232, the Supreme Court has held that that the provisions of section 138 to 142 of the NI Act, is for the purpose of giving credibility to negotiable instruments in business transactions. In view of section 139 of the NI Act, it had to be presumed that a cheque is always issued in discharge of any debt or other liability. The presumption could be rebutted by adducing evidence and the burden of proof is on the person who want .....

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, a three judge bench of the Supreme Court held that Section 139 of the NI Act includes the presumption regarding the existence of a legally enforceable debt or liability and that the holder of a cheque is also presumed to have received the same in discharge of such debt or liability. It was clarified in the aforesaid decision that the presumption of the existence of a legally enforceable debt or liability is, of course, rebuttable and it is open to the accused to raise a defence wherein the exi .....

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urt 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 prose .....

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ay entail negative consequences for a party especially an Income Tax assessee as his having acted in breach of Section 269SS of Income Tax Act, 1961. Chapter XXB provides for the requirement as to the mode of acceptance, payment or repayment in certain cases to counteract evasion of tax. Section 269SS mandates that no person, after the cut off date shall take or accept from any other person any loan or deposit otherwise than by an account payee cheque or an account payee bank draft if the amount .....

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introducing S. 269 is to ensure that a tax payer is not allowed to give false explanation for his unaccounted money, or if he has given some false entries in his accounts, he shall not escape by giving false explanation for the same. During search and seizure unaccounted money is unearthed and the tax payer would usually give the explanation that he had borrowed or received deposits from his relatives or friends sand it is easy for the so-called lender also to manipulate his records later to su .....

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vision was to curb and unearth black money. To construe Sec. 269-SS as a competent enactment declaring as illegal and unenforceable all transactions of 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 l .....

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