TMI Blog2017 (8) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... ik, Adv. For the Respondent No.1: Mr. Anuj Kr.Ranjan. For the State: Ms. Neelam Sharma, APP. JUDGMENT ASHUTOSH KUMAR, J 1. Sajidur Rehman, the petitioner, has been convicted under Section 138 of Negotiable Instruments Act, 1881 vide judgment and order dated 24.11.2011 and 28.11.2011 respectively, passed by the learned Metropolitan Magistrate, Karkardooma Courts, Delhi in connection with CC No.7628/2010 and has been sentenced to undergo RI for a period of 8 months and to pay a compensation of ₹ 22,20,000/- to the respondent/complainant within a period of one month from the date of passing of the order and on failure to do so, to undergo SI for a further period of 6 months. 2. The petitioner, thereafter, unsuccessfully appealed before the ASJ-02 (East), Karkardooma Courts vide Crl. Appeal No.57/2012. The Appellate Court did not find any merit in his appeal and dismissed the same. 3. The present revision petition assails both the judgments by the courts below. 4. A complaint was filed by the respondent alleging that he was known to the petitioner who had approached him for financial help of ₹ 20 lakhs for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The defence of the petitioner that he had issued cheques to the respondent at the instance of one Anil Shandilya was not accepted. The Trial Court though, took note of the discrepancies in the statement of the respondent and the documents produced by him viz. his ITRs for the relevant years but did not give any benefit of doubt to the petitioner and convicted him for the offence under Section 138 of the Negotiable Instruments Act, 1881. 11. The Appellate Court by its judgment dated 03.03.2014 affirmed the conviction/sentence as also the reasoning given by the Trial Court for accepting the version of the respondent and dismissing the case of the petitioner. 12. Learned counsel appearing for the petitioner has drawn the attention of this court to the fact that the respondent/complainant though, admitted that he knew Anil Shandilya but has not spoken about him either in his complaint or in his evidence. Another aspect which was dwelled by the petitioner was the document adduced on his behalf (Mark D1) which is a money receipt cum agreement to sell , which was executed between the petitioner and one Madan Verma. The case of the petitioner is that such an agreement was entered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20,000/- is said to have been paid in cash to the petitioner without any details regarding the denomination of the notes. The passbook of the respondent (Ex.CW1/G) reveals that on 03.04.2008, there was a withdrawal of ₹ 24 lakhs and shortly thereafter the same amount was deposited back. The loan is said to have been given on 03.04.2008. Thus, it is submitted that the respondent failed to prove that the sum which was withdrawn by him from his bank was given to anybody, much less the petitioner. 16. The learned counsel for the petitioner has taken other grounds but the same are not required to be discussed as they do not have any substance. 17. On the other hand, learned counsel appearing for the respondent has argued that all the ingredients of Section 138 of NI Act have been met and satisfied. There is a clear and unambiguous assertion of the respondent that on the demand of the petitioner, ₹ 17,20,000/- was given in cash. In discharge of the aforesaid liability of the petitioner, two cheques were drawn in the name of the respondent, which were dishonoured. It has further been submitted on behalf of the respondent that even if one of the cheques was returned becau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant. No question was put to the witness on from where did this money came in his account. The complainant thus, proved that on the date of incident he had ₹ 24 lacs out of which the loan of specified amount was given to the accused. Ex. PW 1/G is a bank document and the argument of Ld. Counsel that the entries in it are manipulated cannot sustain. Whether or not the complainant had the capacity to pay such a huge amount to the appellant in view of his ITR, is not a question to be decided in the proceeding u/s 138 NI Act when the complainant has proved that he had ₹ 24 lacs with him on the date of incident. 20. The Appellate Court has not taken into account the money receipt cum agreement (Mark D1) as it was only a photocopy of the agreement. With respect to the aforesaid document, the Appellate Court subscribes the following reasons for holding that the petitioner has not been able to rebut the presumption under Section 139 of Negotiable Instruments Act, 1881:- 8. In support of his contention that some property transaction was entered into between him and Anil Shandilya, the appellant had brought on record a money receipt cum agreement. This d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. 22. With regard to the nature of presumption contemplated in Section 139 of the Negotiable Instruments Act, the Supreme Court in Rangappa vs. Sri Mohan: (2010) 11 SCC 441 has held as follows: 27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andilya and an advance payment was made to Anil Shandilya, at his instance, by way of drawing a cheque in favour of the respondent; and (vii) rebuttal/explanation regarding the existence of such a document, namely, the agreement to sell cum money receipt but only a slender opposition of it being a photocopy which could not have been relied upon, if taken/read cumulatively, go a long way in rebutting the presumption of the payment being made against a legally existing/enforceable debt. 24. The absence of any evidence to show the solvency of the respondent for him to have advanced loan to the petitioner leads to the presumption that there was no existing debt. 25. There is no documentary evidence to show that such a huge amount of loan was advanced to the petitioner. 26. It is difficult to accept the proposition that such amount of loan would be paid on oral agreement. 27. Both the courts below, therefore, have erred in holding that the petitioner could not rebut the presumption as contemplated under Section 139 of Negotiable Instruments Act, 1881. 28. For the reasons aforestated, this revision petition is allowed and the judgment of conviction by the Trial C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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