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IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBRAMONIUM PRASAD, J.
In The Matter Of: Barun Kumar – Appellant
Versus
State Of NCT Of Delhi & Anr - Respondents
Crl.Rev.P. 398 of 2018 & Crl.M.A. 8702 of 2018 (Stay)
Decided on : 25-06-2021
Negotiable Instruments Act, 1881 - Section 138 and 139 - Income Tax Act, 1961 - Section 269 SS - Criminal Procedure Code, 1973 - 397/401 r/w S. 482, 251 and 313 - Scope of revision petition under Sections 397/401 Cr.P.C. r/w Section 482 Cr.P.C - Dishonoured of Cheque - Convicted - case for violation of VAT against petitioner - Accused/petitioner is known to complainant for several years and had approached complainant with a request of loan stating that he is about to get authorized dealership of HP for which he is required to deposit amount within few days and he needs a loan - It is stated in complaint that accused/petitioner herein had shown the complainant some letters in this regard.
Finding of the Court:
Violation of Section 269 SS of IT Act does not mean that the Court cannot look into the documents at all. The learned counsel for the petitioner is correct that Section 269 SS of the IT Act mandates that loan in any amount over Rs.20,000/- has to be by way of account payee cheque or account payee bank draft or by use of electronic clearing system through a bank account. Offence Section 269 SS IT Act at best makes an offence under Section 271 D of IT Act but it does not mean that loan has not been given by complainant to petitioner - Revisional Court is not a court of appeal and revisional Court does not substitute its own conclusion to one arrived at by courts below just because another view is possible unless view taken by courts below is perverse and contrary to law - Judgments of Courts below do not reflect that this argument was raised there and this Court is not inclined to interfere on the ground that loan transactions as alleged by complainant is false.
Result: Revision petition is dismissed
JUDGMENT :
SUBRAMONIUM PRASAD, J.
1. This revision petition is directed against the judgment dated 24.04.2018, passed by the Additional Sessions Judge, South District, Saket Court, New Delhi, in Criminal Appeal No.8045/2016 and Criminal Revision Petition No.8352/2016 dismissing the appeal filed by the petitioner herein and affirming the judgment of the learned Metropolitan Magistrate convicting the petitioner for offences under Section 138 of the Negotiable Instruments Act, 1881(hereinafter referred to as ‘the N.I. Act’) sentencing the petitioner to undergo simple imprisonment for five months and pay Rs.20 lakh as compensation to the complainant.
2. The respondent No.2/complainant instituted a complaint against the petitioner herein for an offence punishable under Section 138 of N.I. Act inter alia stating as under:
a) The accused/petitioner herein is known to the complainant for several years and had approached the complainant with a request of loan stating that he is about to get the authorized dealership of HP for which he is required to deposit about Rs.20,00,000/- within few days and he needs a loan of Rs. 15,00,000/-. It is stated in the complaint that the accused/petitioner herein had shown the complainant some letters in this regard.
b) It is stated in the complaint that the accused/petitioner herein told the complainant that once he gets the dealership he would be able to repay the loan. It is stated that believing the representation the complainant advanced a loan of Rs.15 Lakhs to the petitioner herein in the following manner:
i. Rs.50,000/- was paid by way of cash.
ii. Rs.6,50,000/- was paid by cheque bearing No.963019 dated 15.12.2010 drawn on UCO Bank.
iii. Rs.8,00,000/- was paid by cheque bearing No.967981 dated 20.12.2010 drawn on UCO Bank.
The said cheques were duly encashed on presentation.
c) It is stated that in view of his liability to repay the loan amount, the accused/petitioner herein gave one cheque bearing number 768427 dated 31.12.2010 for an amount of Rs.15,00,000/- drawn on UCO bank in favour of the complainant. It is stated that the accused/petitioner herein also issued one receipt dated 18.12.2020 acknowledging the receipt of Rs.15,00,000/- as loan. It is stated in the complaint that the complainant was assured by the accused/petitioner herein that the cheque will be encashed on its presentation. It is stated in the complaint that believing the presentation to be true the cheque was deposited by the complainant for encashment but it was returned with endorsement "Funds Insufficient" vide cheque return memo dated 01.01.2011. It is stated that a legal notice dated 03.01.2011 was sent by the complainant to the accused/petitioner herein for payment of dues within 15 days. It is stated that the notice was duly served on the accused/petitioner herein. It is stated that despite receipt of notice the accused/petitioner herein failed to pay the cheque amount within the prescribed time and therefore a complaint under Section 138 of the N.I. Act was registered against the petitioner herein before the learned Metropolitan Magistrate. Summons was issued. Upon service of summons, the accused/petitioner herein entered appearance on 09.06.2011 and was admitted on bail on 16.11.2011. Notice under Section 251 Cr.P.C was served on the accused/petitioner herein on 30.01.2012, to which he pleaded not guilty and claimed trial.
d) The complainant examined himself as CW-1. He was cross examined by the petitioner herein in great detail. It is pertinent to mention here that the complainant did not produce his books of account.
e) The statement of the petitioner herein was recorded under Section 313 Cr.PC. The case put up by the petitioner herein reads as under:
“In the year 2010, complainant told me that he had procured an order for the supply of 150 computers to the various Members of Parliament and he further told me that this deal will not be done through Sub Computech and it should be done you and me only. You will receive all the
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