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Bijender Sharma Versus Anil Sabharwal

Dishonour of cheques - Conviction for the offence under Section 138 of the Negotiable Instruments Act - Held that:- True it is that in all cases where the loan transaction is not referred to or reflected in the Income Tax Returns, one cannot jump to a conclusion that the presumption under Section 139 of the N.I Act stand rebutted. In cases where the amount is small, the same principle may not apply. However, a huge amount of ₹ 50 lakhs has to be explained or else even when such transaction .....

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e that there existed a debt liability. - Though the petitioner has not stepped into the witness box to lead any evidence but in cases involving Section 138 of the Negotiable Instruments Act, the presumption of the existence of debt liability may be rebutted. The presumption could be rebutted even otherwise on the basis of attendant sets of circumstances and it may not be necessary in each case to expect the accused to lead evidence as in a criminal trial. - A statement under Section 313 .....

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- This Court finds it difficult to believe that ₹ 50 lakhs would be advanced as loan to a person who is on litigating terms with the complainant and that also by selling off his property. We have no evidence whatsoever regarding the sale of the property or mortgage of another property to establish the liquidity/capacity of the complainant to advance loan. - Cumulatively seen, the case of the respondent/complainant falls at the seams. There is no option for this Court but to set as .....

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Case No.117/2014 whereby he has been convicted for the offence under Section 138 of the Negotiable Instruments Act and has been sentenced to undergo SI for a period of eight months, to pay a fine of ₹ 50 lakhs payable as compensation to the respondent/complainant and in default of payment of fine to further undergo SI for four months and the judgment in appeal (Crl.Appeal No.54/2016) passed by the learned Additional Sessions Judge/Special Judge, CBI-03, P.C Act, South District, Saket Cour .....

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ns of stop payment . Hence the complaint. 3. It has been alleged in the complaint that the petitioner is a property dealer who was known to the respondent/complainant. On his asking, the respondent is said to have given a loan of ₹ 50 lakhs on deposit of the title documents of land bearing No.56, Asola Village, Fatehpur Beri by the petitioner. It has been averred in the complaint that the respondent/complainant disposed of the second floor of his House No.90/5, Malviya Nagar, New Delhi for .....

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f the giving of loan, it is alleged that the property document of Plot No.56, Asola Village was taken away and was substituted with the document of Plot No.39 on the pretext of selling off the property No.56, Asola Village, Fatehpur Beri for the purposes of repayment of loan. The allegation against the petitioner/accused is of having dilly dallied thereafter. One of the cheques was presented on 19.12.2013 for clearance which was returned unpaid with the remarks payment stopped vide return memo d .....

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foresaid notice sent by the petitioner that he had received only ₹ 50,000/- in cash in the month of January, 2012 and that also for six months only on interest at the rate of 5% and the petitioner had issued the aforesaid five cheques in blank with respect to the aforesaid loan. The notice sent by the petitioner inter-alia stated that the amount of ₹ 50,000/- has already been paid along with interest and that in an unauthorized manner, the respondent/complainant withheld the cheques .....

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ya Nagar, New Delhi-110017, Bijender Sharma, s/o.Late Sh.Manmohan Sharma, r/o.373, Asola, Fatehpur Beri, New Delhi took loan of ₹ 50 lakhs. As against the same, document of plot No.56, Asola Village has been given by way of security. Five cheques of ₹ 10 lakhs bearing Nos.039723, 039724, 039725, 0397256 and 039727, HDFC Bank, Chattarpur Branch, New Delhi has been given. 5. The translation has been done by this Court. The wordings of the document are not very clear. It does not give a .....

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ver, he reiterated that he sold his property bearing No.90/5, Second Floor, Malviya Nagar for which he received ₹ 38 lakhs and the rest of the amount i.e. ₹ 12 lakhs was obtained from one Rajesh Goel. No document with respect to the sale of the property in question or the mortgage of another property in favour of Rajesh Goel for garnering ₹ 12 lakhs has been brought on record. He further admits that the stamp paper (Exh.PW-1/F) was purchased on 08.02.2011. The document regardin .....

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ween him and the petitioner/accused with respect to certain plot of land and because of that dispute, the complaint was filed so as to put pressure on the petitioner/accused to settle the dispute regarding Plot No.237. 9. On the contrary, the categorical statement of the petitioner in his 313 statement is that he had only taken a loan of ₹ 50,000/- from the respondent/complainant in cash which was returned/repaid by installment of ₹ 10,000/- along with interest. However, with respect .....

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en a loan document was executed (Exh.PW-1/F) which has been drawn up on a stamp paper of ₹ 100/- which was purchased on 08.02.2011; (ii) money was obtained by respondent/complainant after selling his property namely second floor of House No.90/5, Malviya Nagar, New Delhi on 02.06.2011 which fetched him ₹ 38 lakhs; (iii) the balance amount of ₹ 12 lakhs was obtained after mortgaging another property in favour of Mr.Rajesh Goel, a friend of the respondent/complainant; (iv) the re .....

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nce of the respondent/complainant to infer about mortgage of another property in favour of Rajesh Goel who gave ₹ 12 lakhs to him and which was also paid to the petitioner as loan. There were litigations between the parties for which FIRs were registered and investigated and (vi) the loan document (Exh.PW-1/F) was not registered and the same was not put to the petitioner while his statement under Section 313 was being recorded by the Trial Court. 11. In order to appreciate the rival conten .....

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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 insufficient to honour the cheque or that it exceeds the amount arranged to be pa .....

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n 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, 2[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, .....

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y. 12. 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 pre-supposes a legally enforceable debt; and III. That the cheques so issued is dishonoured for insufficiency of funds. 13. Under Section 139 of NI Act, unless the contrary is proved, t .....

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of giving credibility to negotiable instruments in business transactions. In view of section 139of 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 wants to rebut the presumption. 16. In Krishna Janardhan Bhat vs. Dattatraya G. Hegde: (2008) 4 SCC 54, the Supreme Court had the occasion to deal with the aforesaid provisions of the Act. I .....

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older 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 existence of a legally enforceable debt or liability can be contested. Without doubt, the initial presumption is in the favour of the complainant. 18. In Rangappa vs. Sri Mohan (Supra), se .....

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ught 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 . 19. The facts of the present case and .....

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e aforesaid document is that there was some transaction of ₹ 50 lakhs for which five cheques were given. It does not even clearly state as to whether the five cheques were for ₹ 10 lakhs each or all those five cheques were of ₹ 10 lakhs. The stamp paper also appears to have been purchased on a much earlier date than the date on which the loan is said to have been given. That apart, it has been argued that under Sections 91 and 92 of the Evidence Act, when the terms of a contrac .....

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f a document has been proved, no evidence of any oral agreement or statement would be admitted as between the parties to any such instrument for the purposes of contradicting its terms. 21. The document in question (Exh.PW-1/F) was compulsorily registerable as it was with respect to disposition of ₹ 50 lakhs. In the absence of this document being registered, the same was not admissible and, therefore, it cannot be presumed that it was proved by the respondent/complainant. As stated earlier .....

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was urged that both the Courts below erred in fact and law in holding such document to be genuine and on the basis of which the petitioner was held guilty. 23. The argument of the petitioner, on that score is not fit to be accepted. It has been the consistent case of the prosecution that a loan of ₹ 50 lakhs was advanced to the petitioner and the five cheques in question were issued by the respondent as a security thereof, which cheques on presentation were dishonoured. The mere fact of t .....

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h an argument cannot be countenanced as the petitioner has not been put to any disadvantageous position. 24. The petitioner has urged that not filing of the Income Tax Return for the relevant years and no such transaction of ₹ 50 lakhs having been shown in any one of the Income Tax document renders the story of the prosecution improbable/unbelievable as it would only be an unaccounted money which may not be recoverable. It was further argued that an amount of ₹ 50 lakhs, all of which .....

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. In that event, the entire transaction becomes unacceptable and unaccounted for. 25. True it is that in all cases where the loan transaction is not referred to or reflected in the Income Tax Returns, one cannot jump to a conclusion that the presumption under Section 139 of the N.I Act stand rebutted. In cases where the amount is small, the same principle may not apply. However, a huge amount of ₹ 50 lakhs has to be explained or else even when such transaction is in the realm of suspicion, .....

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ability. 26. Though the petitioner has not stepped into the witness box to lead any evidence but in cases involving Section 138 of the Negotiable Instruments Act, the presumption of the existence of debt liability may be rebutted. The presumption could be rebutted even otherwise on the basis of attendant sets of circumstances and it may not be necessary in each case to expect the accused to lead evidence as in a criminal trial. 27. Learned counsel appearing for the respondent has raised a plea t .....

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