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2024 Supreme(Del) 567
IN THE HIGH COURT OF DELHI AT NEW DELHI
Anoop Kumar Mendiratta, J.
Prem Pal Singh - Appellant
Versus
State & Anr. - Respondents
Cr.REV.P. 374 of 2024, Cr.M.(BAIL) 459 of 2024
Decided On : 18-03-2024
Mr. Brijesh Kumar Singh, Advocate, for the Petitioner.
Ms. Kiran Bairwa, APP for State with SI Sanjeet, PS Malviya Nagar.
IMPORTANT POINT
The main legal point established is that under Section 139 of the N.I. Act, there is a presumption that a cheque was issued for the discharge of any debt or other liability, and the burden is on the accused to raise a probable defense and prove by some probable evidence that there was no debt or liability.
Headnote:
N.I. Act - Cheque Bounce - Section 138 - Section 397 - Section 401 - Section 118(a) - Section 139
Fact of the Case:
The accused borrowed Rs. 2,00,000 from the complainant and issued a cheque which was dishonored. The accused failed to provide evidence of repayment, leading to his conviction under Section 138 of the N.I. Act.
Finding of the Court:
The court found that the accused failed to rebut the presumption under Section 139 of the N.I. Act and did not provide sufficient evidence of repayment, leading to his conviction.
Issues: The main issue was whether the accused could rebut the presumption under Section 139 of the N.I. Act and provide evidence of repayment.
Ratio Decidendi: The court relied on the principles enumerated in 'Basalingappa vs. Mudidasappa', AIR 2019, SC 1983, which established that once the execution of a cheque is admitted, there is a presumption that the cheque was for the discharge of any debt or other liability. The burden is on the accused to raise a probable defense and prove by some probable evidence that there was no debt or liability.
Final Decision: The revision petition was dismissed, and the accused was directed to surrender before the trial court within four weeks.
JUDGMENT
Anoop Kumar Mendiratta, J. (Oral)
CRL.M.A.8441/2024
Exemption allowed, subject to just exceptions.
Application stands disposed of.
CRL.REV.P. 374/2024 & CRL.M.(BAIL) 459/2024
1. Criminal Revision Petition under Sections 397 and 401 of the Code of Criminal Procedure has been preferred against the impugned judgment dated 15.02.2024 passed by the learned ASJ-05 (South), Saket Courts, New Delhi in CA. No. 123/2023.Vide aforesaid judgment, the conviction vide judgment dated 06.03.2023 and order on sentence dated 12.04.2023 passed by the learned M.M have been upheld.
2. The factual position, as noticed in paragraph-2 of judgment dated 06.03.2023 passed by the learned Trial Court/MM may be reproduced for reference:
"2. The present complaint alleges, inter alia, that complainant and accused were having good terms with each other. In the 1st week of November, 2020- accused approached the complainant for a friendly loan of Rs.2,00,000/- for the marriage of his son and represented that he would return the loan amount to the complainant before 20.04.2021. On this, complainant gave Rs.2,00,000/- to the accused on 09.11.2020 in cash and the accused assured to return Rs.2,00,000/- before 2004.2021. On 09.11.2021 itself, in discharge of his legal liability of repayment of loan amount, the accused issued a cheque bearing no.317671 dated 19.04.2021 for Rs.2,00,000/- (Two Lakh Only) drawn on the Delhi Co-operative Bank Ltd., Branch: 150, Main Bus Stand, Devli, New Delhi-110062 to complainant. Complainant deposited the cheque bearing no.317671 which is Ex.CW-1/1 dated 19.04.2021 for Rs.2,00,000/- (Two Lakh Only) to his banker, however, the cheque had been returned unpaid vide returning memo Ex.CW? dated 05.05.2021 with the remark "Payment Stopped By Drawer". Complainant through his counsel sent a legal notice dated 01.06.2021 which is Ex.CW-1/3. Postal receipts is Ex.CW-1/4 and Affidavit is Ex.CW-1/6, no payment was made within 15 days, hence this complaint."
3. The facts in the present case are also on similar lines with Crl. Rev. Pet. 368/2024, which is separately dismissed. The petitioner/accused herein also took the stand that he had taken the loan of Rs.2 lacs with interest @ 5% from one Tej Pal Singh and had given two blank signed cheques to Tej Pal Singh along with papers of his property as security. Respondent No.2/ complainant was mediator in said transaction. Further, the said amount had been returned to Tej Pal Singh except a sum of Rs.12,000/-, but since he failed to return cheques and property papers, a police complaint was filed and a Panchayat was also called in this regard.
4. Petitioner/accused also examined himself along with one Raj Kumar (DW-2) and Rinku (DW-3) in defence.
5. The learned Trial Court, on the basis of evidence led on behalf of respondent No.2/complainant, noticed that the complainant/respondent No.2 had been working as Quality Controller in a tailoring shop and there was a Panchayat as stated by him. However, it was crucially noticed that DW-1 (petitioner/accused) admitted that he had taken friendly loan of Rs. 2 lacs from Tara Chand/respondent No.2/complainant, but claimed to have paid a sum of Rs.3,30,000/- against the said loan amount except for an amount of Rs.12,000/-. The same was completely in contrast with stand taken by him at the stage of notice, wherein he claimed that cheque was handed over to one Tej Pal who misused the same. It is also pertinent to note that no documents regarding return of sum of Rs.3,30,000/- were produced by petitioner/accused.
6. Learned Trial Court based on aforesaid findings, held that the presumption existed in favour of complainant/respondent No.2 of having received the cheque against debt or liability, which could not be rebutted in a casual manner by the petitioner/accused. Accordingly, the petitioner was convicted for the offence under Section 138 of N.I. Act.
7. The principles in relation to the presumption raised under Section 118(a) read with Section 139 as settled in `B
