Liakat Ali vs State & Anr.
2011 Latest Caselaw 3635 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               Reserved on: July 26,    2011
                               Delivered on: August 01, 2011

+      CRIMINAL APPEAL No.10/2003

       LIAKAT ALI                                       ....APPELLANT

                    Through:   Mr. Satish Tamta, Advocate

                        Versus

       THE STATE (GOVT. OF NCT OF DELHI) & ANR.
                                              .....RESPONDENTS
               Through: Ms. Fizani Husain, APP

        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?

AJIT BHARIHOKE, J.

1. This appeal is directed against the impugned judgment dated

30.11.2002 and consequent order on sentence dated 21.12.2002 whereby

the appellant was convicted in complaint case NIA No.104/2002 titled N.K.

Garg Vs. Liyakat Ali for the offence under Section 138 N.I. Act and

sentenced to undergo SI for the period of six months besides fine of

`50,000/-, in default to undergo SI for the period of three months. It was

also ordered that in case of realisation of the fine, the amount so

recovered be paid to the complainant as compensation.

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2. Briefly stated, facts relevant for the disposal of this appeal are that

N.K. Garg filed a complaint under Section 138 N.I. Act and Section 420 IPC

against the appellant alleging that the complainant and his brother had

monetary dealings with the appellant. The appellant, in discharge of his

liability, issued a cheque bearing No.697870 for `50,000/- drawn on

Corporation Bank, Connaught Circus Branch in favour of the complainant

N.K. Garg. Cheque was dated 01.08.1996. The complainant presented

the cheque for realisation of amount on 05.08.1996, but it was

dishonoured. The complainant contacted the appellant and on the

assurance of the appellant, he again presented the cheque for

encashment on 19.11.1996, but it was returned as dishonoured on

20.11.1996. The complainant served the appellant with demand notice

under Section 138 N.I. Act calling upon him to pay the cheque amount,

but the appellant failed to comply with the demand notice. This led to

filing of the complaint.

3. The appellant was served with notice under Section 251 Cr.P.C. for

the offence under Section 138 N.I. Act. He pleaded not guilty and claimed

trial.

4. In support of the allegations in the complaint, the complainant

examined his attorney as CW1. He fully supported the allegations in the

complainant. Besides the attorney, complainant also examined Shri R.S.

Goswami, Advocate (CW2) and Shri D.K. Popli, PRI, Post Office Krishna

Nagar (CW3) and Shri Hanuman Prasad Verma, (CW4) clerk-cum-cashier

of Punjab National Bank, Yamuna Vihar, Delhi to prove the issue and

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service of demand notice on the appellant as also the dishonour of the

cheque.

5. The appellant in his statement under Section 313 Cr.P.C. denied the

prosecution version. He claimed that he was never served with the notice

of demand. The appellant explained that he had business dealings with

the complainant. The cheque in question was issued as security for the

purchase of cloth from the complainant. The complainant, however, failed

to supply the cloth to him. Thereafter, some disputes arose and the

complainant has misused the cheque in question.

6. Learned trial Judge on consideration of the evidence on record came

to the conclusion that the respondent complainant has proved the

allegations in the complaint and found the appellant guilty of offence

under Section 138 N.I. Act. He accordingly convicted and sentenced the

appellant.

7. Learned Shri Satish Tamta, Advocate appearing for the appellant

submits that the learned Additional Sessions Judge has committed a grave

error in holding the appellant guilty for the offence under Section 138 N.I.

Act ignoring the fact that the complainant has not been able to establish

that the cheque, which is subject matter of the complaint, was issued in

discharge of an existing liability or a valid debt. Learned counsel argued

that the learned trial court has relied upon the testimony of the

complainant N.K. Garg(CW1) ignoring the fact that his testimony is not

worthy of credence and it is not supported by any corroborative evidence,

oral or documentary. Thus, it is strongly urged that the appeal be

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accepted and the appellant be acquitted of charge under Section 138 N.I.

Act.

8. I am not convinced with the submissions made by learned counsel

for the appellant. No doubt, in order to succeed in a complaint under

Section 138 N.I. Act, the complainant is required to establish that the

cheque in question was issued by the appellant in favour of the

complainant in discharge of existing liability or debt. In order to provide a

foundation for this, N.K. Garg appeared as CW1 and he has stated that he

had business dealings with the appellant Liakat Ali who had given him the

cheque in question i.e. cheque No.697870 dated 01.08.1996 for `50,000/-

drawn on Corporation Bank. In the cross-examination N.K. Garg has

clarified that the appellant took cash loan from him and against that loan

he had issued the cheque. From this it is evident that the cheque was

issued for discharge of the loan taken by the appellant.

9. Section 139 of the Negotiable Instruments Act reads thus:

"It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, or any debt or other liability."

10. On reading of aforesaid Section, it is apparent that once a cheque

has been issued by the accused, it shall be presumed, unless the contrary

is proved by the accused that the holder of the cheque received the

cheque of the nature referred to in Section 138 N.I. Act. It is not disputed

that the cheque in question was issued by the appellant in favour of the

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complainant. Rather, the appellant in his statement under Section 313

Cr.P.C. has admitted to issue of cheque by taking a defence that the

cheque in question was issued as security. Even in his statement also, he

has admitted having issued the cheque, but his defence is that he had

issued the cheque against supply of cloth which was found to be

defective. Thus, it is established that the cheque in question was actually

issued by the appellant in favour of the complainant. This gives rise to a

presumption under Section 139 N.I. Act that the cheque was given for

discharge of the existing liability. To rebut this presumption, appellant

Liakat Ali appeared as DW2 and stated that he had issued the cheque for

purchase of cloth but the cloths supplied by the complainant were found

defective, as such the cloth was returned and complainant was asked to

return the cheque. The complainant, instead of returning the cheque,

presented it in the bank. Aforesaid evidence of the appellant is contrary

to the explanation given by him in his statement under Section 313

Cr.P.C. wherein he has stated that he gave the cheque to the complainant

as security in advance for the purchase of cloth. Even while cross-

examining the complainant, the appellant suggested a totally inconsistent

defence wherein he took the plea that the cheque in question was not

issued by the appellant. From the above, it is evident that the appellant

has been taking inconsistent defences at various stages of the trial.

Therefore, his version as DW2 appears to be an afterthought and not

worthy of credence. Thus, it is clear that the appellant has not been able

to discharge the onus to rebut the presumption under Section 139, N.I.Act.

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11. In view of the above, I find that the learned trial Judge has rightly

convicted and sentenced the appellant for the offence punishable under

Section 138 N.I. Act and there is no reason to interfere with the impugned

judgment and order on sentence in appeal.

12. Appeal is accordingly dismissed.

(AJIT BHARIHOKE) JUDGE AUGUST 01, 2011 pst

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