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2017 Supreme(Del) 2763
IN THE HIGH COURT OF DELHI AT NEW DELHI
ASHUTOSH KUMAR, J.
DILIP CHAWLA - Petitioner
Versus
RAVINDER KUMAR & ANR - Respondent
CRL.REV.P.607/2016
Decided On : 10-08-2017
For the Appellant : Mr. Rajat Wadhwa with Mr. Himanshu & Mr. Bhupinder Singh.
For the Respondent: Mr. Pradeep Kumar Arya with Mr.L.K.Dahiya and Mr. Raj Karan Sharma, Ms. Neelam Sharma, APP.
The main legal point established in the judgment is the presumption of a legally enforceable debt under Section 139 of the NI Act and the burden of proof on the accused to rebut this presumption.
Headnote:
Negotiable Instruments Act - Dishonour of Cheque - Sections 138, 139, 118(a)
Fact of the Case:
The petitioner was convicted under Section 138 of the Negotiable Instruments Act for dishonouring a cheque issued to repay a loan. The petitioner challenged the judgment of the Trial Court and the Appellate Court, but the present revision petition is directed against both the concurrent judgments of the Courts below.
Finding of the Court:
The Court found that the complainant had advanced a loan to the petitioner, and the petitioner failed to rebut the presumption of a legally enforceable debt under Section 139 of the Negotiable Instruments Act. The Court reduced the petitioner's sentence to the period already undergone in custody and ordered the release of the deposited amount to the complainant.
Issues: The issues revolved around the existence of a legally enforceable debt, the presumption under Section 139 of the NI Act, and the petitioner's failure to raise a probable defense.
Ratio Decidendi: The Court applied the provisions of Sections 138, 139, and 118(a) of the NI Act to establish the existence of a legally enforceable debt and the presumption in favor of the holder of the cheque. The Court emphasized the burden of proof on the accused to rebut the presumption and the standard of proof required.
Final Decision: The revision petition was partly allowed, reducing the petitioner's sentence and ordering the release of the deposited amount to the complainant.
ASHUTOSH KUMAR, J
1. Dilip Chawla was tried and convicted under Section 138 of the Negotiable Instruments Act, 1881 vide judgment dated 26.08.2014, passed by the learned Metropolitan Magistrate in CC No.142-1/2 and was sentenced vide order dated 24.02.2016 to undergo SI for six months, to pay a compensation of Rs.6,00,000/- (Rs.6 lakhs) within two months of passing of the order failing which to suffer SI for 10 months.
2. The petitioner challenged the aforesaid judgment of the Trial Court before the learned District & Sessions Judge (West), Delhi in Crl.Appeal No.54314/2016, which too was dismissed vide judgment dated 27.08.2016.
3. The present revision petition is directed against both the concurrent judgments of the Courts below.
4. Respondent No.1, Ravinder Kumar had advanced a loan of Rs.4 lakhs to the petitioner which was promised to be returned by him with simple interest of 24% before May, 2012. When money was demanded by the respondent No.1, it was refused. Later, in June 2012 the petitioner is said to have issued a cheque dated 23.07.2012 of Rs.4 lakhs bearing No.282146, drawn on ICICI Bank, C-Block, Janakpuri branch. It was promised by the petitioner that the interest would be paid later. The aforesaid cheque, on presentation in bank, was dishonoured for insufficiency of funds. A notice was sent in writing to the petitioner on 08.08.2012 demanding a sum of Rs.4 lakhs but no payment was made. Hence, the complaint was lodged against the petitioner.
5. Learned counsel appearing for the petitioner has drawn the attention of this Court to the averments made in the complaint which reflect that even though respondent No.1 was aware of the fact that the petitioner was under heavy debts, but still agreed to pay an amount of Rs.4 lakhs at the rate of 24% per annum. It was further pointed out that during trial, the respondent No.1/complainant also deposed that his relatives and well wishers had advised him to execute an agreement with the petitioner regarding the loan transaction but since an assurance was made by the petitioner that the loan amount would be returned within three months, the respondent No.1/complainant did not care for executing any agreement.
6. It has thus been submitted that the case made out in the complaint and in the evidence of respondent No.1 is not plausible and cannot be believed that any loan was given to the petitioner and that the petitioner was under an obligation to repay the debt.
7. During the cross examination, respondent No.1 is said to have stated that he is a property dealer by profession and that he knew one Jaspreet Singh Bhatia for about one year. He further submitted that no written agreement was prepared and no receipt also was taken from the petitioner. Even though the respondent No.1/complainant is an Income Tax assessee, he has admitted that in the year 2007, he did not show the transaction of loan in his returns.
8. It has, therefore, been argued on behalf of the petitioner that in the absence of any written agreement with the complainant regarding grant of loan and no receipt regarding such payment, it was difficult to believe that such an amount was advanced to the petitioner. It has further been urged that in this background, if the Income Tax return for the year 2007 does not show any loan transaction, it cannot be believed that the loan was given to the petitioner.
9. The petitioner did not lead any evidence at the trial.
10. The petitioner, in his statement recorded under Section 313 of the Code of Criminal Procedure has stated that his tenant Jaspreet owed some money to the respondent No.1/complainant and he gave the aforesaid cheque to bail out his tenant Jaspreet from the trouble.
11. The Trial Court, therefore, held that the petitioner had failed to discharge the onus to rebut the presumptions against him as he had failed to raise a probable defence. Accordingly, the petitioner was convicted and sentenced as aforesaid.
12. Similar grounds were taken by the Appellate Court i
