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2015 Supreme(Del) 2647
IN THE HIGH COURT OF DELHI
ASHUTOSH KUMAR, J.
DEVENDER KUMAR – Petitioner
Versus
KHEM CHAND – Respondent
CRL.REV.P.679/2012
Decided On : 06.10.2015
Advocate Appeared:
Mr.Siddharth Pandit, Advocate.
Mr. Nem Singh, Advocate.
Headnote:
Criminal Procedure Code, 1973 - Section 378, 401 - Acquittal - Appeal - Revision - Maintainability of - Section 378 (4) of the Cr.P.C. would apply not only to an original order of acquittal in a case of complaint - It also apply to an order of acquittal passed by the Sessions Court in appeal - There is nothing in Section 378 (4) of the Cr. P.C. to limit its application only to the order of acquittal passed in the first instance by the Trial Court - A revision would not be maintainable against the Appellate order passed by the Sessions Court.
Negotiable Instruments Act, 1881 - Section 138 - Stamp Act, 1899 - Schedule 1A, Article 5 (c) - Dishonour of cheque - Document - Enforceability - Respondent had taken a loan of Rs. 17,000/- from the petitioner - Loan amount would be returned in 17 equal monthly installments of Rs. 1,000/- as against the capital amount and in addition Rs. 510/- as interest - 5 blank cheques duly signed - Petitioner had misused the blank cheques as the papers which were signed by him and which were given to the petitioner before any loan could be advanced - Blank cheques and other documents were not returned to him as was promised by the petitioner - Trial Court held that the respondent could not rebut the mandatory presumption of law and convicted - Loan agreement did not contain any acknowledgment of the disbursement of the loan amount of Rs. 1.40 lacs - Agreement was only an agreement to pay the amount in future- Agreement was not signed by any witness - Agreement was on a plain-paper - Petitioner did not satisfy the requirement of law in discharging onus - Advance of loan of such amount is required to be disclosed under the ITR return - A clear and categorical plea that he had taken a loan of Rs. 17,000/-only, to be payable in 17 installments of Rs. 1,510/- each with an interest @ 3% p.m - This was not effectively denied - Respondent sentenced to undergo SI for a period of five months - Non- rebutting of the presumption - Legally enforceable debt - Petitioner failing in discharging his onus - Petition is dismissed - Appellate judgment and order is affirmed - Respondent no. 2 stands acquitted.
Certainly. Based on the provided legal document, the key points are as follows:
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The appeal concerns the acquittal of the respondent under Section 138 of the Negotiable Instruments Act, which pertains to the dishonour of a cheque due to insufficient funds (!) (!) .
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The petitioner had lent money to the respondent, supported by an agreement, promissory note, and affidavit, but the validity of these documents was scrutinized. The appellate court found that the agreement was only an agreement to pay in the future and was not on stamp paper as required, which affected its enforceability (!) (!) .
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The presumption of consideration under the Negotiable Instruments Act was rebutted by the respondent, who demonstrated that there was no proof of actual disbursement of the loan amount, and the loan was not reflected in the petitioner’s income tax returns. This cast doubt on the existence of a legally enforceable debt (!) (!) (!) .
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The petitioner failed to discharge the legal burden of proof regarding the existence of a legally enforceable debt or liability, especially given the absence of evidence of actual loan disbursement and the lack of disclosure in income tax filings (!) (!) .
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The documents, including the agreement and promissory note, were found to lack legal efficacy because they did not evidence the actual transfer of funds, and some were on plain paper rather than stamp paper, which is legally required (!) (!) .
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The court noted that the loan agreement did not contain an acknowledgment of disbursement, and the promissory note's validity was contingent upon the actual transfer of money, which was not proven (!) .
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The legal notice sent by the respondent acknowledged that the loan was of Rs.17,000, payable in installments, but this was not effectively denied by the petitioner, which supported the respondent’s case (!) (!) .
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The appellate court held that the sentence imposed by the trial court was improper given the legal provisions allowing a maximum of one year imprisonment in summary trials under the relevant law (!) .
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The question of the maintainability of the revision petition was addressed, clarifying that a revision is not maintainable against an order of acquittal passed by an appellate court unless special leave is granted by the High Court (!) (!) (!) .
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The court emphasized that the respondent successfully rebutted the presumption of a legally enforceable debt under the relevant law, and the petitioner failed to prove the existence of such a debt in the second instance. Consequently, the revision was dismissed, and the respondent was acquitted (!) .
These points collectively reflect the legal reasoning, findings, and conclusions of the court regarding the case's facts, evidence, and applicable law.
ASHUTOSH KUMAR, J.
1. The petitioner is aggrieved by the judgment and order passed in Criminal Appeal No. 60/2012 dated 12.09.2012 whereby the judgment and order of conviction dated 18.05.2012 and 23.05.2012 respectively passed by the Trial Court, convicting the respondent under Section 138 of the Negotiable Instruments Act (for short ‘NI Act’) and sentencing him to undergo Simple Imprisonment for five months and a fine of Rs.3 lacs, in default of payment of which one month SI, has been set aside and the respondent has been acquitted.
2. The petitioner, being friendly to the respondent, gave a loan of Rs. 1.40 lacs to him vide an agreement executed on 16.09.2008 (Ex.CW1/A). The aforesaid agreement indicated that the petitioner would pay Rs.1.40 lacs on the next date i.e. a day after the agreement was executed and the respondent would return the amount of Rs.1.50 lacs on 23.04.2009. The agreement further indicated that the respondent had issued a promissory note admitting his liability and obligation to pay the aforesaid amount (Rs.1.50 lacs) to the petitioner on 23.04.2009. An affidavit was also sworn by the respondent which indicated that the respondent has given a cheque of Rs.1.50 lacs bearing cheque no. 489019 payable on 23.04.2009. The cheque was of Syndicate Bank, Dev Nagar, Delhi. The promissory note has been exhibited as Ex.CW1/B and the affidavit referred above is exhibited as Ex.CW1/C. The cheque of Rs.1.50 lacs drawn by the respondent was dishonoured for insufficiency of funds. As a result thereof, a notice was issued to the respondent in which there was direction to pay the amount in question. Neither the amount was paid nor the notice was replied. Per force, a complaint had to be filed under Section 138 of the Negotiable Instruments Act.
3. The Trial Court proceeded with the complaint case in a summary manner and after summoning the respondent, his plea was recorded under Section 263 (g) of the Code of Criminal Procedure. The respondent though admitted the fact that he had signed the cheque but denied that the contents of the cheque were filled up by him. The respondent admitted that he had taken a loan of Rs.17,000/- from the petitioner on 16.09.2008. It was agreed upon between him and the petitioner that the loan amount would be returned in 17 equal monthly installments of Rs.1,000/- as against the capital amount and in addition Rs.510/- as interest on the aforesaid amount, the rate of interest being 3% p.m. In lieu of the said amount, 5 blank cheques duly signed and certain other papers also signed by the respondent was given to the petitioner. There was an assurance from the petitioner that the documents and the blank cheques shall be returned to him when the installments of the loan were paid. Eight installments, of Rs.1,510/- each, were paid. Thereafter, a request was made to the petitioner to accept the balance amount and other blank cheques which were refused. The respondent also issued a legal notice on 14.07.2009 through his counsel. The aforesaid legal notice was duly replied. A case was filed by the respondent against the complainant in the concerned civil Court but the same was dismissed in default. In the meantime, the petitioner (complainant) had misused the blank cheques as also the papers which were signed by him and which were given to the petitioner before any loan could be advanced.
4. On the other hand, the petitioner (complainant) submitted, by way of affidavit, that the respondent had approached him in the month of August 2008 for financial aid for a limited period of 6-7 months for starting a new business venture. It has further been stated that on 15.09.2008, the respondent brought a stamp paper and a promissory note and requested for a friendly loan of Rs.1.50 lacs. However, the petitioner gave him only Rs.1.20 lacs. Thereafter, on persuasion of the respondent, Rs.1,000/- more was given in cash. This also did not satisfy the respondent and a cheque of Rs.2,000/- was issued in fa
