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IN THE HIGH COURT OF DELHI
Subramonium Prasad, J.
Prahald Singh - Appellant
Versus
State - Respondent
Crl.Rev.P. 882 of 2018 & Crl.M.(Bail) 1612 of 2018, Crl.M.A. 11794 of 2019 and Crl.M.A. 2798 of 2020
Decided On : 08-03-2021
Negotiable Instruments Act - Offence under Section 138 - 138 - The NI Act - The petitioner was convicted for an offence under Section 138 of the Negotiable Instruments Act, 1881. The court affirmed the order of conviction and the compensation imposed on the petitioner. The petitioner failed to rebut the presumption under Section 139 of the N.I. Act. The court found that the petitioner abused the indulgence granted by the court and went back on the undertaking given to the court, amounting to contempt.
Fact of the Case:
The respondent No.2 lent a sum of Rs.1,00,000 to the petitioner, who issued a cheque for the repayment of the loan. The cheque was dishonoured, and a legal notice was sent to the petitioner, which was returned. The petitioner took a defence that he did not take any loan from the respondent and that the cheque had been misused. The lower courts held the petitioner guilty under Section 138 of NI Act and imposed a compensation of Rs.1,75,000 on the petitioner.
Finding of the Court:
The court found that the petitioner failed to rebut the presumption under Section 139 of the N.I. Act. The court also noted that the petitioner abused the indulgence granted by the court and went back on the undertaking given to the court, amounting to contempt.
Issues: The issues involved the repayment of a loan, misuse of the cheque, and the service of the legal notice.
Ratio Decidendi: The court held that the petitioner failed to rebut the presumption under Section 139 of the N.I. Act and abused the indulgence granted by the court, amounting to contempt.
Final Decision: The revision petition was dismissed, and the petitioner was not entitled to any indulgence from the court.
JUDGMENT
Subramonium Prasad, J. This revision petition under Section 397 Cr.P.C is directed against the judgment and order dated 09.03.2018 passed by the Additional Session Judge, Karkardooma Courts, New Delhi, in CRL. Appeal No.194/2017. The Additional Session Judge by the impugned judgment affirmed the order dated 29.06.2017, passed by the Additional Chief Metropolitan Magistrate, East, Karkardooma Court, Delhi, convicting the petitioner for an offence under Section 138 of Negotiable Instruments Act, 1881 (hereafter referred as `The NI Act') and the Order on sentence dated 17.10.2017 directing the petitioner to pay a compensation of Rs.1,75,000/- and in default the petitioner herein has to undergo simple imprisonment for three months.
2. On 01.11.2019, the counsel for the petitioner on instructions from the petitioner, who was present in person, submitted that the petitioner is ready and willing to settle the disputes with respondent No.2. It was agreed that the petitioner will make the payment of Rs.1,70,000/- to respondent No.2 in four monthly instalments. The first three instalments of Rs.50,000/- each were to be paid on or before 01.12.2019, 01.01.2020 and 01.02.2020 respectively. The fourth and final instalment of Rs.20,000/- was to be paid on or before 01.03.2020. The petitioner also undertook to deposit fine of Rs.5,000/- with the Delhi High Court Legal Services Committee within four weeks. The petitioner further undertook to deposit 15% of the compensation amount with the Delhi High Court Legal Services Committee in view of the decision of Supreme Court in Damodar S. Prabhu vs. Saved Babalal H., (2010) 5 SCC 663 within four weeks thereafter. The said amount has not been paid.
3. On 07.02.2020 the counsel for the petitioner submitted that the petitioner is willing to pay the amount, provided some more time is given to him and prayed that six months time be granted and he also stated that an undertaking in this regard will be filed by him within one week. Even though time was granted, the amount has not been paid.
4. A perusal of the above orders would show that the petitioner is only using dilatory tactics to postpone the matter and is not willing to pay the amount which the petitioner had undertaken to pay vide Order dated 01.11.2019. This Court is therefore inclined to hear and dispose of the revision petition on merit.
5. Shorn of details the facts leading to this revision petition are:
a) The respondent No.2 instituted a complaint under Section 138 of NI Act stating that he had lent a sum of Rs.1,00,000/- (Rs.50,000/- in cash and Rs.50,000/- by way of cheque) to the petitioner as friendly loan. For the repayment of the said loan, the petitioner had issued a cheque bearing No. 795471 dated 25.07.2013, drawn on State Bank of India, in favour of the respondent No.2. The cheque was returned as dishonoured with the remarks "funds insufficient". A Legal notice as contemplated under Section 138 of NI Act was sent to the petitioner on 20.08.2013 which returned back with the report "left without address".
b) A complaint being C.C. No. 934/13/15 under Section 138 N.I. Act was instituted against the petitioner on 04.10.2013, in the Court of Chief Metropolitan Magistrate, (District East) Karkardooma Courts, Delhi.
c) The petitioner took a defence that he did not take any loan of Rs.1,00,000/- from the respondent No.2. He also stated that a blank cheque had been given by him to one Mahesh from whom the petitioner had taken loan. It is stated that the said Mahesh has given the cheque to the complainant which has been misused.
d) Mahesh was examined as DW-2 and in his cross examination he stated that the cheque in question had never been given to him by the accused/petitioner herein.
e) The petitioner stated that he did not receive the notice under Section 138 NI Act and therefore the complaint ought to be dismissed.
f) The learned Metropolitan Magistrate by the judgement dated 29.06.2017 held that the petitioner/accused had not be
AI
The petitioner's failure to rebut the presumption under Section 139 of the N.I. Act and the abuse of indulgence granted by the court amounted to contempt.
The revisional power of court under Sections 397 to 401 Cr.P.C. is not to be equated with that of an appeal. Unless finding of the court, whose decision is sought to be revised, is shown to be perver....
The main legal point established is that the Appellate Court cannot enhance the sentence by ordering compensation in the absence of an appeal by the complainant.
The burden of proof shifts to the complainant once the accused discharges the initial burden of proof, and the presumption under Sections 118 and 139 of the N.I Act disappears.
It has been settled in law that accused can either adduce independent evidence or rely on evidence tendered by complainant to rebut presumptions.
Revisional court cannot re-appreciate evidence absent perversity; NI Act presumption u/s 139 rebuttable by preponderance of probabilities, accused's uncorroborated denial insufficient; notice returne....
The offense under Section 138 of the N.I. Act becomes unpunishable once compounded, disallowing claims for compensation under Section 357(3) Cr.P.C.
Admission of cheque signature raises presumption of debt under NI Act ss118(a),139; accused's lost cheque plea fails without bank report; revisional jurisdiction limited to perversity, upholding conc....
Admission of cheque issuance triggers Section 139 presumption of debt discharge, rebuttable only by probable defence on preponderance of probabilities; uncorroborated security claim fails rebuttal; r....
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