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2021 Supreme(Del) 261
IN THE HIGH COURT OF DELHI
SUBRAMONIUM PRASAD, J.
G.D. Kataria – Petitioner
Versus
AVL Leasing & Finance Ltd. – Respondent
Crl.Rev.P. No. 774 of 2018 & Crl.M.(B). No. 1392 of 2018
Decided On : 03-02-2021
Advocate Appeared:
For the Petitioner:Medhanshu Tripathi, Advocate.
For the Respondent:Anuj Soni, Advocate.
The initial burden lies on the accused to prove the non-existence of debt, and the failure to produce books of accounts does not automatically negate the existence of debt.
Headnote:
N.I. Act - Discharge of Debt - Section 138 - 138 - 143(1) (Provisio) of N.I. Act read with Section 357(1)(3) of Cr.P.C.
Fact of the Case:
The respondent financed a bus for the petitioner and upon dishonor of the cheques given by the petitioner, a complaint was filed under Section 138 of the N.I. Act. The petitioner contended that the vehicle was re-possessed and sold, and nothing was due and payable.
Finding of the Court:
The courts found that the cheques were issued for discharge of debt, and the petitioner failed to rebut the presumption under Section 118 of the N.I. Act. The failure of the respondent to submit their books of accounts was not fatal to the case.
Issues: Discharge of debt, presumption under Section 118 of the N.I. Act, failure to produce books of accounts.
Ratio Decidendi: The initial burden lies on the accused to prove the non-existence of debt. The failure to produce books of accounts does not automatically negate the existence of debt.
Final Decision: The revision petition is dismissed.
JUDGMENT :
1. The instant revision petition is directed against the order dated 27.08.2018, passed by the Additional Session Judge/Special Judge (NDPS), West District, Tis Hazari Court, Delhi, in Criminal Appeal being CA No. 153/2018, whereby the Additional Session Judge has dismissed the appeal and has affirmed the order dated 26.04.2018, passed by the Metropolitan Magistrate in CC No.8073/2016, convicting the petitioner herein for offences punishable under section 138 of Negotiable Act, 1881 (hereinafter referred as ‘The N.I. Act’). The petitioner has also challenged the order dated 12.07.2018 in the said Criminal Appeal whereby the Metropolitan Magistrate has sentenced the petitioner to undergo simple imprisonment for a period of two months and also directed the petitioner to pay an amount of Rs. 13 Lakhs as fine payable as compensation to the respondent herein as per the provisions of Section 143(1) (Provisio) of N.I. Act read with Section 357(1)(3) of Cr.P.C.
2. The facts leading to the instant revision petition are as under:
(a) The respondent is a leasing and financing company. The respondent financed a bus for the petitioner by giving a loan. In discharge of the liability the petitioner handed over three cheques drawn on Bank of Punjab Limited. Rajouri Garden, Delhi bearing number 327226 dated 13.04.2003 for an amount of Rs. 1 lakh, number 327227 dated 28.07.2003 for an amount of Rs. 3 lakhs and number 327338 dated 27.07.2003 for an amount of Rs. 2,84,000 in favor of the respondent.
(b) When the respondent deposited these cheques they were returned as unpaid/dishonored for the reason "Funds Insufficient".
(c) Notice as required under Section 138 of the N.I. Act was issued by the respondent calling upon the petitioner herein to make the payment within 15 days of receipt of the notice. The payment was not received and a complaint was filed under Section 138 of the N.I. Act before the court of the Metropolitan Magistrate, West District, Tis Hazari Court, Delhi.
(d) Before the Metropolitan Magistrate it was contended by the petitioner herein that he took a loan for purchasing a bus with registration number DL1 PA 5798 and at the time of taking the loan 36 blank signed cheques were given as security towards the repayment of the loan. It is stated that in October, 2002 the petitioner herein handed over the vehicle to the respondent company for getting the vehicle converted to CNG and entered into a new lease agreement, but neither was the said vehicle returned to the petitioner herein nor were the accounts related to the hire purchase agreement settled. It was stated before the Metropolitan Magistrate that as the vehicle is in the possession of the respondent herein and the cheque given by the petitioner/accused had been misused.
(e) It was stated before the Metropolitan Magistrate that the bus No.DL1 PA 5798 was re-possessed by the respondent. It was also stated the a No Objection Certificate dated 30.08.2003 along with form 35 was issued by the issuing authority and the respondent herein had given a No objection with regard to the bus bearing No.DL1 PA 5798.
(f) The Metropolitan Magistrate after examining the documents found that the deposition of the accused/petitioner herein is inconsistent with the evidence on record. The Metropolitan Magistrate also found that in relation to bus number DL1 PA 5798, accused/petitioner herein had deposed that the complainant/respondent herein has already sold the bus, but officer from Transport Department (DW-2), Delhi placed on record the RC which shows that the accused/petitioner herein is the owner of the bus. As per the RC, bus number DL1 PA 5798 is registered in the name of the accused and NOC has been issued by hypothecatee on 10.09.2003. The Metropolitan Magistrate held that the averments of the accused/petitioner herein in relation to the sale of this vehicle despite payment of 13 installments is incorrect as the ownership of the vehicle still vests with the accused/petitioner herein.
(g)
