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TMI Blog2023 (8) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. Devender Damle". Further, vide order on sentence dated 25.03.2015, the petitioner was sentenced to undergo simple imprisonment of three months and to pay a combined fine of Rs. 40 lakhs, out of which Rs. 39 lakhs was to be paid as compensation to the complainant and remaining Rs. 1 lakh as fine, and in default of payment of same, to undergo further simple imprisonment for three months. 3. Briefly stated, the case of complainant was that she and the petitioner were known to each other for more than nine years and there were friendly relations between their families for more than twenty two years as on the date of filing of the complaint. It was alleged that in July 2006, the accused/petitioner had approached the complainant on pretext that he was going through a tough time financially and he had come up with a lucrative business proposal for the complainant and had convinced her to finance a project which would yield handsome profits to her, for which he had sought a loan of Rs. 14 lakhs from her. The complainant had accordingly agreed to advance a loan of Rs. 14 lakhs to the petitioner on payment of interest at the rate of 3% per month. It was stated by the complainant that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the allegations levelled by the complainant and stated that there were no financial transactions between them. He also denied filling in of the particulars i.e. the name of drawee, the amount and date on the cheque, and also denied that the cheques were issued in discharge of any legal liability. He claimed that the cheques were issued as security for a loan procured by the complainant in his name but admitted that the cheques in question were drawn on his bank account and bore his signatures. He also admitted having received the legal notice from the complainant. In the defence evidence, the petitioner also examined himself as DW-1 and contended that the cheques in question were issued somewhere between January to April 2010 as the complainant and her family members were in great financial difficulties and they had lost all financial credibility in the market, and he had issued the cheques to enable them to procure loans by showing his blank cheque as security and to show their financial soundness to the potential creditors. The petitioner also contended that the complainant did not have financial competence to give him any loan. The petitioner had also examined an official f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the larger mischief sought to be remedies as outlined above, I feel ends of justice will be met if the convict is sentenced to 3 months simple imprisonment and ordered to pay a combined fine of Rs. 40,00,000/- out of which Rs. 39,00,000/- shall be payable to the complainant as compensation u/s 357(1) of the Cr.P.C. Rest of the amount (i.e. Rs. 1,00,000/-) be deposited with the State as fine. In default of payment of fine, the convict shall undergo a further simple imprisonment for three months..." 8. Aggrieved by the decision of learned MM, the petitioner had preferred an appeal before the learned ASJ, who was pleased to dismiss the appeal, thereby upholding the judgment and order on sentence passed by the learned MM. The concluding portion of impugned judgment dated 26.05.2018 passed by learned ASJ reads as under: "32. For the foregoing reasons, I am of the view that impugned judgment dated 23.03.2015 does not suffer from any illegality which calls for interference. I accordingly uphold the impugned judgment dated 23.05.2015 vide which appellant was convicted for the offence punishable under section 138 of the NI Act. 33. I also uphold that impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able on record and the income tax officer who was examined had also stated that the complainant may not have filed her return for assessment year 2007-08. It is also stated that the complainant had admitted that she had filled up the blank cheques herself which were given by the petitioner to her for obtaining credibility in the market and for securing loans from her creditors namely Sh. Sanjay Sharma and Sh.BR Ahuja. It is stated that the complainant had failed to examine her mother-in-law to prove that she had obtained a loan of Rs. 6.35 lakhs from her mother-in-law which she had used to advance loan to the petitioner for the first time. It is also stated that she had failed to examine Sh. Jasveer Singh and Sh. Chiddha Singh who were the alleged purchasers of her jewellery and thus, she was unable to prove the factum of having advanced a second loan to the petitioner. In a nutshell, it is the case of petitioner that both the Courts below have not appreciated the evidence in the correct manner and there are several contradictions in the case set out by the complainant in her legal notice, complaint under Section 138 of NI Act, and in her evidence during the trial. Thus, it is pray ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contends that the Courts below have failed to appreciate the evidence correctly on the issues which are summed up as under: i. the complainant had admitted that she had filled the details on the blank cheques herself; ii. the cheques were given by the petitioner to the complainant so as to enable her to show these cheques to her creditors as security and obtain loans; iii. the complainant had failed to prove the factum of having advanced any loan to the petitioner as she did not furnish any specific details and particulars qua the same; iv. the complainant had no financial capacity to advance loans to the petitioner and the evidence adduced by her was insufficient to prove to the contrary; v. the evidence brought on record by complainant to prove grant of first loan after obtaining the same from her mother-in-law and grant of second loan after selling her jewellery was insufficient and inconsistent owing to several discrepancies, non-examination of relevant witnesses, etc; 15. Having perused the trial court record and the judgments passed by both the learned MM and learned ASJ, this Court is of the opinion that both the Courts have already dealt with the aforesaid c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative. 36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt." (Emphasis supplied) 17. Furthermore, as rightly held by the learned MM, when the signatures on the cheques had been admitted by the petitioner, the presumption under Section 118(a) and 139 of NI Act would arise and it would be presumed that the cheques in question had been issued by the petitioner towards some legally enforceable debt. However, such a presumption can be rebutted by an accused by raising a probable defence. The law on this preposition is well-settled and for the same, a reference can be made to the decision of Hon'ble Apex Court in case of Basalingappa v. Mudibasappa (2019) 5 SCC 418, whereby it was held as under: "25. We having noticed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainant, nor he had given any reply to the legal notice sent by her despite having received the same. It is also clear from the records that the complainant in her cross-examination had denied that she had lost her credibility in the market and that she had requested the petitioner to stand as a security for her before her creditors Sh. Sanjay Sharma and Sh. B.R. Ahuja. On the other hand, the petitioner had made no efforts to examine the said persons in defence evidence, who as per his theory, were the creditors of the complainant and for whose assurance, the petitioner had handed over these cheques to the complainant. Further, the petitioner did not bring on record any material to establish even his own financial soundness and credibility as he had neither filed his bank statements nor his income tax returns before the Court. Thus, the aforesaid defence raised by the petitioner that the cheques were not issued toward a legally enforceable debt did not hold any ground. Having observed so, this Court does not find any infirmity with the detailed reasons recorded by the learned MM and re-iterated by the learned ASJ in this regard. 20. Moving further, it was also contended that the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes the story of the complainant to the effect that the total loan of Rs. 28,00,000/- was given to the accused in two installments, firstly in July, 2006 and then in August, 2007. The Balance Sheet annexed to Assessment year 2007-2008 reflects loan of Rs. 6,35,000/- taken by the complainant from her mother, which could have been employed to give the loan to the accused in addition to chest reserves, cash in hand. As regards the first loan, in the returns of AY-2006-2007, The complainant is shown to have Rs. 6,50,000/- in home chest and Rs. 1,68,906/- as cash in hand. This probablises the financial capability of the complainant to have granted the loans. The giving of second loan of Rs. 14,00,000/- was demonstrated by the proceeds from the sale of jewellary. *** 6.4.4 Ld. Counsel for the Accused has argued with great vehemence that adverse inference need to be drawn against the complainant for having not procured the rest of the IT returns. To my mind, this is an argument thoroughly misconceived, no case for adverse inference is made out in view of the fact that it is the IT department who has been unable to find out the authenticated IT returns. The complainant could at best ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any reasons to take any view other than the one taken by both the Courts below. 22. With respect to the contention that the Courts have wrongly relied upon the affidavits of alleged purchasers of jewellery of the complainant, it can be very well observed in the judgment passed by learned MM that he has not relied upon the affidavit of these purchasers, rather has categorically returned a finding that the authenticated copy of computation of taxable income filed by the complainant for the assessment year 2008-09, as produced by the department concerned before the Court, reflected the sale of jewellery of about Rs. 15 lakhs, which the complainant claims to have utilised towards advancing loan of Rs. 14 lakhs to the petitioner. 23. Thus, this Court is also of the view that the defence raised by the petitioner was not sufficient to rebut the presumption raised against him under Section 118(a) and 139 of NI Act, and where the issuance of cheques and signatures on the same were not disputed and when the complainant was sufficiently able to establish the factum of having advanced loans to the petitioner as well as their sources, this Court find no infirmity with the judgment passed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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