High Court of Delhi was dealing with the petition filed under Section 401 read with Section 482 Cr.P.C. for Call for the record of the Ld. Courts below and set aside/quash/annul the judgment dated 26.03.2021 passed by South East District, Saket Courts, New Delhi.
Brief Facts:
The respondent no. 2 filed a complaint under Section 138 NI Act against the revisionist stating that on 15.12.2016, the revisionist had taken a friendly loan of Rs. 4,80,000/- from the respondent for a period of one month. The revisionist issued the cheque dated 13.02.2017 drawn on Kotak Mahindra Bank in favour of the respondent. The said cheque was presented for encashment by the respondent which was returned by the banker with remark "fund insufficient." Thereafter, the respondent issued legal notice dated 20.02.2017 calling upon the revisionist to make payment of the cheque amount within 15 days of the receipt of the legal notice. However, the payment of the cheque in question was not made by the revisionist within the stipulated period which resulted in the filing of the complaint under Section 138 of NI Act. Vide judgment dated 29.07.2019, the Ld. MM convicted the revisionist under Section 138 NI Act and vide order on sentence dated 09.09.2019, the revisionist was sentenced to simple imprisonment for 3 months and fine of Rs. 7 Lakh to be paid completely as compensation to the respondent. The revisionist challenged this judgment and order on sentence, by filing criminal appeal J vide impugned judgment dated 26.03.2021 disposed of the appeal filed by the revisionist and modified the sentence.
Revisionist’s Contention:
Learned counsel for the revisionist submitted that the revisionist is a stranger to the respondent No. 2 and that he has no legal liability towards him. It was further submitted that he had lost his signed blank cheques and a complaint in this regard was also filed in the year 2014. It was submitted that the cheque in question is stated to have been given in February 2017 which is much later than the date of his complaint preferred in 2014. It was submitted that demonetization was announced on 08.11.2016 and therefore, it is for the respondent No.2 to elaborate and explain as to how he was able to arrange huge sum within a week of demonetization.
Respondent’s Contention:
Learned Counsel for the respondent submitted that he had duly placed on record the original cheque signed by the revisionist, the bank return memos, the legal notice issued under Section 138 NI Act and the postal receipt showing service of the legal notice on the revisionist. It was submitted that the revisionist has not denied that the cheque in question bears his signature and that the revisionist led different stories regarding the cheque in question i.e., on one hand he stated that the cheque was handed over to one Pankaj Bhalla and the same got stolen whereas on the other hand, he stated that the cheque was given as a security cheque and the same was misused by the complainant/respondent No. 2 after committing forgery.
HC’s Observations:
After hearing both the sides Court stated that the Negotiable Instruments Act, provides sufficient opportunity to a person who issues the cheque. Once a cheque is issued by a person, it must be honored and if it is not honored, the person is given an opportunity to pay the cheque amount by issuance of a notice and if he still does not pay, he is bound to face the criminal trial and consequences.
HC stated that it is trite law that once issuance of a cheque and signature hereon are admitted, presumption of a legally enforceable debt in favour of the holder of the cheque arises. While imposing sentence on the accused after his conviction, it is to be kept in mind that the sentence for offence under Section 138 of NI Act should be of such nature as to give proper effect to the object of legislation and no drawer of the cheque can be allowed to take dishonour of cheque issued by him light heartedly. HC also stated that the Magistrate can alleviate the grievance of the complainant by making resort to Section 357(3) Cr.P.C. wherein no limit of compensation to be awarded by the Magistrate has been mentioned and, thus, the Magistrate is empowered to impose a reasonable amount of compensation payable to complainant.
HC Held:
After evaluating submissions made by both the parties the Court held that “The revisionist neither informed the concerned bank about the cheque in question, which got stolen nor requested the bank to get the payment stopped against the said cheque, which shows his malafides. The revisionist has also taken the plea that the cheque in question was handed over to one Pankaj Bhalla and the same got stolen. However, the said fact was not revealed by the revisionist at the time of framing of notice on 19.02.2018. Also, the revisionist has failed to rebut the presumption in favour of the complainant and the mere statement by the revisionist in itself is insufficient to raise suspicion with regards to the entire case of prosecution. Therefore, I find no infirmity in the impugned Judgment dated 26.03.2021 passed by the Ld. Trial Court.”
Case Title: Sanjay Gupta v. The State & Anr.
Bench: Hon'ble Mr. Justice Rajnish Bhatnagar
Citation: CRL.REV. P. 326/2021 & Crl. M. (Bail) 1244/2021
Decided on: 24th March, 2022
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