Harminder Virdi vs N.K.Gupta
2010 Latest Caselaw 3127 Del

      *             IN THE HIGH COURT OF DELHI AT NEW DELHI


                                   Date of Order: 6th July , 2010

                                     Crl. R. P. No. 335 of 2010
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          HARMINDER VIRDI                                              ... Appellant
          Through: Mr. RPS Sirohi, Advocate

          Versus

          N.K. GUPTA                                                ...Respondents

Through: Nemo

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

ORAL

1. Present revision has been preferred against the order of learned ASJ

dated 15th March, 2010, whereby she dismissed the appeal filed by the petitioner

against the judgment of learned MM dated 26th September, 2008, convicting the

petitioner for an offence under section 138 Negotiable Instrument Act. Main

ground taken by the petitioner before this court is that the trial court ignored the

settled legal position that accused had a constitutional right to maintain silence.

The defence of the accused was to be considered on the basis of preponderance

of probabilities and it was not necessary for accused to adduce evidence or to

Crl. R. Petition No. 335 of 2010 Page 1 Of 3 examine himself and non examination of the accused did not mean that the

accused was raising false defence.

2. The other ground taken by the accused counsel is that the accused

sentence under section 138 of Negotiable Instrument Act was modified by the

learned ASJ to the period already undergone, but the learned ASJ directed that in

case of nonpayment of compensation, the petitioner would further undergo

simple imprisonment for a period of six months and this simple imprisonment for

six months should have been directed to run concurrently with substantive

sentence.

3. None of the two grounds raised by the petitioner in the revision petition is

tenable. The complaint against the petitioner was filed under section 138 of

Negotiable Instrument Act after dishonor of the cheque issued by petitioner. The

petitioner's plea during arguments had been that the cheque was issued without

consideration. A legal presumption is there against the person who issues

cheque that the cheque was issued for a valid consideration. This presumption

can be rebutted only by way of cogent evidence to be led by the person who

wants this presumption to be rebutted. A person cannot plead before the court

that he would not lead evidence because he had a right to silence but the court

should consider his defence without evidence. It is the choice of the accused to

keep silence. If the accused keeps silence in respect of those facts the onus of

proof of which lies upon the accused under law, the accused has to suffer.

Section 106 of Indian Evidence Act specifically lays down that when any fact is

Crl. R. Petition No. 335 of 2010 Page 2 Of 3 especially within the knowledge of a person, the burden of proving that fact is

upon him. Whether a cheque was issued without consideration or it was not

payable for any other reason, was within the special knowledge of the petitioner

and the onus to prove this defence was upon the petitioner notwithstanding that

the petitioner was an accused and had a right to silence. This defence of the

petitioner could not have been considered by the court without evidence

produced by the petitioner. I, therefore, consider that there is no ground to

interfere with the decision of the first appellate court.

I also find no force in the argument made by the petitioner that

substantive sentence and the sentence of simple imprisonment in lieu of

compensation should run concurrently. If that is allowed, nobody would pay the

compensation as provided under Negotiable Instrument Act and the sole purpose

of the Act would stand defeated. The petitioner in this case had by his conduct

shown that he was determined not to pay cheque amount. I consider even

otherwise the substantive sentence has to run first and the sentence in lieu of

nonpayment of cheque amount/compensation has to run subsequently. The two

cannot run concurrently. I find no force in this petition. The petition is dismissed.

July 06, 2010                                           SHIV NARAYAN DHINGRA J.
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Crl. R. Petition No. 335 of 2010                                       Page 3 Of 3