TMI Blog2023 (11) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of complainant; or put forth his defence in his statement under Section 313 Cr.P.C. supported by evidence. Here itself, it may be noted that statement of accused under Section 313 Cr.P.C is not a substantive piece of evidence. If accused put forth his defence in said statement, he must support it with evidence - simply by taking the stand either in reply to the legal notice or in the statement under Section 313 CrPC that accused had taken loan of Rs. 55,000/- only and that blank cheque was given as a security, it cannot be stated that presumption in favour of the complainant stands rebutted or that the defence is probablized. It is no doubt true that when accused entered the witness box as DW1, he repeated this stand by way of his affidavit Ex.DW1/A to the effect that he had taken Rs. 55,000/- on 10.11.2008, in lieu of which accused had taken his signature on blank papers and had also taken a blank signed cheque as security. However, most importantly, when complainant-Girraj Sharma entered the witness box as CW1, this stand was not confronted by the accused to the complainant at all - There is no suggestion that complainant had taken any blank signed cheque as security from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Case N: RBT 1429 of 2009 titled Girraj Sharma vs. Devender by the Court of ld. Judicial Magistrate 1st Class. 2. In order to avoid confusion, parties shall be referred as per their status before the trial Court. 3. Perusal of the trial Court record reveals that complainant - Girraj Sharma (petitioner herein) sought prosecution of accused - Devender (respondent herein) under Section 138 of the NI Act, by filing the complaint in the Court of ld. JMIC, Faridabad, by alleging that accused had taken friendly loan of Rs. 1,75,000/- in May 2009 for a period of one month, promising to refund the same along with interest @ 24% per month. In order to discharge his liability, accused issued account payee cheque No.344062 dated 10.06.2009 for an amount of Rs. 1,75,000/- drawn on IDBI Bank Ltd. Sector 16, Faridabad, favoring the complainant. However, on presentation, the cheque was returned unpaid vide return memo dated 11.06.2009 with remarks drawers signature incomplete . Intimation was received by the complainant in this regard from his banker on 13.06.2009. Complainant then served a legal notice dated 15.06.2009 through his Advocate and sent it to the accused through registered pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03.2014 and warrants of arrest were issued against him. He was arrested by the police on 01.07.2015 and produced before the Court and then sent to jail. 8. Against the judgment of conviction and order of sentence both dated 16.01.2014, the accused-convict filed an appeal in the Court of Sessions by pleading that his conviction has been wrongly recorded; that there was no documentary evidence to prove the existence of loan transaction; that cheque in question had been misused; that actual loan amount was Rs. 55,000/- only, out of which he had already paid Rs. 40/45,000/- and thus, there was no liability. It was contended further that trial Court had ignored the evidence produced by him and had wrongly convicted him. Prayer was made to set aside the conviction and sentence as recorded by the trial Court. 9. The aforesaid appeal, as filed on 13.07.2015, was accompanied by an application for condonation of delay. It was pleaded in the application that the previous counsel had not informed the applicant-accused about the decision of the case; that he came to know about the decision only on 01.07.2015 and after obtaining the certified copy of the judgment, he filed the appeal, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondone the delay in filing the appeal by the appellate court and so, he has the right to challenge the order before this court. 16. In order to see justifiability for condonation of delay, overall conduct of accused is important to notice. Though, process against the accused was issued by the Court of ld. JMIC on 30.07.2009 but despite service and even receipt of legal notice prior to filing of the complaint, he did not appear in the Court nor responded to the legal notice. He was ultimately declared proclaimed person on 07.03.2012 and was produced by the police on 19.03.2012. After the trial was concluded and his conviction was recorded on 16.01.2014, his sentence was suspended for a period of 30 days to enable him to file appeal before the Court and in the meantime, he was admitted to interim bail vide order dated 16.01.2014. However, as noticed earlier, he neither filed appeal nor surrendered before the trial Court and rather, absconded. His bail was cancelled and ultimately, he was produced by the police after arresting him on 01.07.2015. 17. In the aforesaid circumstances, the plea taken by the accused in his application for condonation of delay moved before the Appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 118. Presumptions as to negotiable instruments. - Until the contrary is proved, the following presumptions shall be made: - (a) of consideration. - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration; (b) as to date. - that every negotiable instrument bearing a date was made or drawn on such date; 22. In Rangappa vs. Sri Mohan, 2010 (3) Criminal Court Cases 022 (S.C.): 2010 (3) Civil Court Cases 115 (S.C.): 2010 (2) Apex Court Judgments 285 (S.C.): 2010 (11) SCC 441, a three judges bench of the Hon ble 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 dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they rely. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. It is not necessary for the accused to come in the witness box to support his defence. 25. It is in the light of the aforesaid legal position that it is required to be seen that whether accused has been able to probabilise his defence. Here itself, it may be noted that the accused is not required to prove his defence on the standard of proof beyond reasonable doubt and rather, is simply required to probabilise his defence. The presumption under Section 139 of the Act can be rebutted even by evidence led by the complainant; and it is not required for the defence to lead evidence to rebut presumption, as has been held by the Hon ble Supreme Court in Shiv Kumar Vs. Ram Avtar Aggarwal, 2020(2) RCR (Crl.) 147. 26. In order to rebut the presumption available to complainant under Section 139 of the NI Act, accused can either appear in the witness box though it is not mandatory; or he can elicit circumstances favourable to him during the cross-examination of complainant; or put forth his defence in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PC, are on oath. These cannot be considered as evidence to prove the stand of the accused, particularly when reply has been sent after filing of the complaint. Reliance in this regard can be placed upon Sumeti Vij s case (supra), wherein it has been held by the Hon ble Supreme Court that statement of accused recorded under Section 313 Cr.P.C is not substantive evidence of defence, but is only an opportunity to accused to explain the incriminating circumstances appearing in the prosecution case. Similar view was taken by Hon ble Supreme Court in Uttam Rama Vs. Devinder Singh Hudan Anr., 2019(4) CCC 596 (SC) to the effect that statement of accused under Section 313 Cr.P.C is not substantive evidence. 31. In view of the above legal position, simply by taking the stand either in reply to the legal notice or in the statement under Section 313 CrPC that accused had taken loan of Rs. 55,000/- only and that blank cheque was given as a security, it cannot be stated that presumption in favour of the complainant stands rebutted or that the defence is probablized. 32. It is no doubt true that when accused entered the witness box as DW1, he repeated this stand by way of his affidavit Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness violating the provisions of Section 58 of the NI Act; that signature on the cheque was made complete by overwriting and so, Section 87 of the NI Act was attracted and that loan was for a period of 30 days as pleaded by the complainant and so, how within 10 days request could have been made to return the loan. 36. After appraising the entire record, I find reasonings given by the appellate Court to be absolutely irrelevant and based on conjectures and surmises and by totally misappreciating the evidence on record. 37. As already noticed that despite receipt of the legal notice much prior to the filing of the complaint as evident from AD card Ex.C5 and as also candidly admitted by the accused, he did not respond to the legal notice and rather gave reply much after filing of the complaint and so said factor could not have been taken into consideration. Once the signature on the cheque were admitted by the accused in so many words, not only by making positive suggestion to the complainant, but also in his statement under Section 313 CrPC and then in his defence evidence, the existence of legal liability remained not in dispute at all, in view of presumption under Section 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estored. 43. As far as restoration of order of sentence of the trial Court is concerned, this Court does not find any infirmity in that order also. Apart from the fact that accused concocted a false story so as to avoid his liability, his conduct is also important to notice. As has already been noticed that though process against the accused was issued by the Court of ld. JMIC on 30.07.2009 but despite service, he did not appear in the Court. He was ultimately declared proclaimed person on 07.03.2012 and was produced by the police on 19.03.2012. After the trial was concluded and his conviction was recorded, his sentence was suspended for a period of 30 days to enable him to file appeal before the Court and in the meantime, he was admitted to interim bail vide order dated 16.01.2014. However, he neither filed appeal within time nor surrendered before the trial Court and rather, absconded. His bail was cancelled and ultimately, he was produced by the police after arresting him on 01.07.2015. 44. Having regard to the overall conduct of the accused-respondent, he does not deserve any leniency. As such, the order dated 16.01.2014 qua the quantum of sentence, as recorded by Ld. JMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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