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Sajidur Rehman Versus Rajiv Kashyap & Anr.

Conviction of offence under Section 138 of the Negotiable Instruments Act, 1881 - proof of existing debt - acquittal of charge - Held that:- 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. - There is no documentary evidence to show that such a huge amount of loan was advanced to the petitioner. It is difficult to accept the proposition that such amount of loan would be .....

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ocates who appeared in this case: For the Appellant: Mr. Anshuman Animesh, Adv. With Ms. Sakshi Kaushik, 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.762 .....

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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 10 days. On such demand by the petitioner, it was further alleged that a sum of ₹ 17,20,000/- was paid to him in the month of April, 2008 against an oral agreement. In discharge of such liability, the petitioner is said to have issued two post dated cheques on .....

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was an instruction to stop payment and for the other cheque of ₹ 10 lakhs, the bank reported that there was alteration and therefore the same was referred to the drawer. 5. A legal demand notice dated 09.06.2008 was issued to the petitioner but it was not acted upon and hence the complaint under Section 138 of the Negotiable Instruments Act, 1881 was filed on 14.07.2008 leading to the registration of Complaint Case No.7628/2010. 6. The petitioner pursuant to the notice under Section 251 o .....

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oner, he himself got examined as DW1 and filed one money receipt cum agreement to sell (Mark D1). 9. The Trial Court convicted the petitioner after holding that the cheques were issued by him and that those were in discharge of the debt which the petitioner owed to the respondent. The Trial Court was of the view that the petitioner could not rebut the presumption as contemplated under Section 118B and Section 139 of the Negotiable Instruments Act, 1881. 10. The Trial Court held that it was for t .....

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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 hi .....

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377; 72 lakhs. The aforesaid agreement which is also in the nature of a money receipt indicates that advance/part payment was made vide two cheque Nos.432458 and 432457 for the amount of ₹ 7,20,000/- and ₹ 10 lakhs respectively which was accepted by the respondent, Rajiv Kashyap. The petitioner had made out a case that he had given those cheques in question to the broker, Anil Shandilya and at his instance the cheque was drawn in favour of the respondent who was an associate of afore .....

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e same number and denomination which finds mention in the agreement to sell cum money receipt (Mark D1) . It also appears rather strange that on a demand of ₹ 20 lakhs by the petitioner for his needs, a peculiar amount of ₹ 17,20,000/- was given by the respondent. 14. It has next been contended on behalf of the petitioner that the respondent in his deposition has clearly stated that he is not in the property dealing business but in his IT Return of 2008-2009 (Mark A), he has shown th .....

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n of ₹ 17,20,000/-. It has also been argued that if at all the respondent had given such big amount as loan, the same ought to have been shown in his IT Returns. 15. The amount of ₹ 17,20,000/- 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 .....

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isfied. 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 because of alteration, that also would fall within the genus of dishonour of cheque, making the petitioner liable .....

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m were noted by the learned Trial Court but were not given any weightage; rather the Trial Court relied upon the fact that the petitioner himself accepted in his cross-examination that he had taken overdraft from Vijaya Bank and was under some liability to pay back such amount and that if at all the petitioner would have brought Anil Shandilya or Madan Verma as defence witnesses, such assertion of the petitioner could have had some probative value. Similar view has been taken by the learned Appe .....

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ged the capacity of the complainant to pay a huge amount of money as a loan to the appellant. The complainant in his cross-examination admitted his income during the year 2008-09, and 2009-10 was ₹ 1,51,585/and ₹ 2,34,668.35/. In the year 201011, his gross income was ₹ 3,19,398.25/. The complainant admitted that he was a 25 years of old boy who was living in the house of Anil Shandliya, who is his distant relative. In support of his claim that he had the capacity to pay the mon .....

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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 .....

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f the agreement was filed on record. The appellant did not even seek the permission of the court to allow this document to be accepted as a secondary evidence. The document has not been proved as per the Indian Evidence Act at all and cannot be accepted against the complainant even for the purposes of rebuttal of presumption. The document in any case is not in the name of either the complainant or alleged Anil Shandilya. The appellant therefore has failed to rebut the presumption regarding the c .....

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accepted, endorsed, negotiated or transferred for consideration; ... 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 bank unpaid, either because of the amount of money standing to the credit of that account is insufficien .....

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ed 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 .....

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charge, 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 Act specifies a strong criminal .....

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uld guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. 28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of preponderance of probabilities'. The .....

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and the respondent; (ii) no conclusive proof of the financial strength of the respondent to pay a loan of ₹ 17,20,000/- to the petitioner; (iii) ITR returns not showing such transactions which could affirm the financial health of the respondent/complainant; (iv) amount of ₹ 24 lakhs having been withdrawn from the account of the respondent and the same amount having been deposited immediately in the same account; (v) agreement to sell cum money receipt between the petitioner and a thi .....

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