* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 08.04.2024
% Pronounced on : 30.04.2024
+ CRL.M.C. 8317/2023, CRL.M.A. 30952/2023
CRL.M.C. 8360/2023, CRL.M.A. 31206/2023
CRL.M.C. 8377/2023, CRL.M.A. 31247/2023, CRL.M.A.
31248/2023
CRL.M.C. 8383/2023, CRL.M.A. 31265/2023, CRL.M.A.
31266/2023
CRL.M.C. 8385/2023, CRL.M.A. 31274/2023, CRL.M.A.
31275/2023
CRL.M.C. 8387/2023, CRL.M.A. 31279/2023, CRL.M.A.
31280/2023
CRL.M.C. 8388/2023, CRL.M.A. 31283/2023, CRL.M.A.
31284/2023
CRL.M.C. 8416/2023, CRL.M.A. 31419/2023
M/S KELTECH INFRASTRUCTURE LTD. ..... Petitioner
Through: Mr. Niraj Kumar Sharma, Advocate.
versus
MS DEEPA CHAWLA ..... Respondent
Through: Mr. Anil Kaushik, Sr. Advocate with
Mr. Arun Vohra, Advocate.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
At the outset, learned counsel for the petitioner prays that though the
present petitions have been filed under Section 482 Cr.P.C., however,
considering that the same have been filed against the order of Appellate
Court, the same be considered as revision petitions filed under Section 397
CRL. M.C. Nos. 8317, 8360, 8377, 8383,
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Digitally Signed By:MANOJ
KUMAR OHRI
Signing Date:01.05.2024
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read with Section 401 Cr.P.C. Ordered accordingly. Registry is directed to
take appropriate steps.
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1. By way of present petitions, the petitioner seeks to assail the distinct
judgements all dated 09.10.2023 passed by learned Sessions Court, Saket in
Criminal Appeals filed by the petitioner (alongwith the other co-accused)
being CRL.A. Nos. 15-22/2023 whereby judgment of conviction dated
25.11.2022 and order on sentence dated 12.12.2022 passed by the Trial
Court in complaint case arising out of Section 138 read with Section 141 NI
Act came to be upheld.
2. Pertinently, the present petitions have been filed pertaining to the
proceedings initiated under Section 138 read with Section 141 of the
Negotiable Instruments Act, 1881 (hereafter, the NI Act ). Except for the
‘ ’
cheque numbers, the facts as well as the parties to the matter being common,
CRL. M.C. Nos. 8317, 8360, 8377, 8383,
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Digitally Signed By:MANOJ
KUMAR OHRI
Signing Date:01.05.2024
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the above-noted petitions are taken up for consideration together and
disposed of vide this common judgment.
3. It is to be noted that apart from the cheque details, rest of the facts
involved in all the Appeals remain the same. The facts, as noted in one of
the said Appeals are as under:-
2. In a nut shell, the facts of the case are that
“
respondent/complainant Deepa Chawla agreed to purchase
three flats - (i) K-1409 for Rs.33.50 lakh, (ii) K-1410 for
Rs.33.50 lakh and (iii) K-1408 for Rs.33 lakh, in a multi storey
building being constructed by accused company (appellant no.1
herein) at its Plot No. 6, Block K-1, GH, in the project named as
'Kumar Golf Vista' at Crossing Republik, NH-24, Ghaziabad,
U.P. and executed three separate agreements, all dated
05/09/2013. The total sale consideration of Rs.1 crore was paid
by complainant to accused no. 1 company. In pursuance
thereof, accused no.1 company entered into another agreement
dated 06/09/2013, as per which, if accused no. 1 company failed
to complete the construction or to handover the peaceful and
physical possession of the flats in question, it would purchase
them back from complainant at the agreed predetermined
composite sale consideration of Rs.1 crore. In order to show his
bonafide intention, accused Narinder Kumar (appellant no.2
herein), the Director of accused no. 1 company, issued post-
dated cheque bearing no.150474 dated 06/09/2015 of Rs.1
crore to complainant.
3. As it transpired, accused no.1 company (appellant no.1
herein) could not complete the construction by the due date of
06/09/2015, neither refunded the sale consideration amount to
complainant. Through communication dated 01/09/2015, the
accused company sought extension of time till 06/09/2016 to
complete the construction and to deliver the flats. Through
communication dated 02/09/2015, complainant granted the
accused further extension of 12 months, upto 06/09/2016 but
requested for replacement of cheque no. 150474 dated
06/09/2015 with fresh cheque. In furtherance of their mutual
CRL. M.C. Nos. 8317, 8360, 8377, 8383,
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Digitally Signed By:MANOJ
KUMAR OHRI
Signing Date:01.05.2024
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communication, accused no. 1 company, vide communication
dated 03/09/2015, issued fresh post dated cheque bearing no.
245414 dated 06/09/2016 in the sum of Rs.1 crore to
complainant. In the communication dated 03/09/2015, the
accused company agreed to pay interest @ 24% per annum on
refundable amount in the event of failure to deliver the flats by
the end of extended time. As a security towards payment of
interest, accused no. 1 company issued 12 post-dated cheques
bearing no. 245401 - 245412 from date 06/10/2015 to
06/09/2016 of Rs.2 lakh each to the complainant.
4. Thereafter, accused no. 1 company replaced cheques bearing
no. 245406, 245407 and 245408, and issued fresh cheques
bearing no. 307218, 307222 and 096188, all dated 26/07/2016
to complainant, through communication dated 27/07/2016. In
addition, cheque bearing no. 245409 was also replaced with
cheque no.329348 dated 06/09/2016 vide communication dated
06/09/2016.
5. It is not in dispute that the cheque in question i.e. cheque no.
245411 dated 06/08/2016 in the sum of Rs.2 lakh handed over
by accused no. 1 company to complainant got dishonored with
remarks 'Insufficient Funds' vide cheque return memo dated
13/10/2016.
”
4. In the present revision petitions, the petitioner has confined its
submission on following two aspects.
Firstly, it was contended that the respondent being the drawee of the
impugned cheque neither filed the complaint in question nor appeared
before the Trial Court in the proceedings. The complaint was preferred and
proved by one Mr. Ajay Chawla, Power of Attorney of Ms. Deepa
Chawla/respondent. Both the Trial Court as well as Appellate Court erred in
not appreciating the fact that the attorney holder, having no personal
knowledge of material averments, could not have deposed on behalf of the
complainant/respondent. In support of the said submission, reliance has been
CRL. M.C. Nos. 8317, 8360, 8377, 8383,
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Digitally Signed By:MANOJ
KUMAR OHRI
Signing Date:01.05.2024
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placed on the decisions in Janki Vashdeo Bhojwani & Anr. V. Indusind
1 2
Bank Ltd. & Ors. , A.C. Narayanan v. State of Maharashtra & Anr. and
3
TRL Krosaki Refractories Limited v. SMS Asia Private Limited & Anr.
Secondly, it was contended that both the Courts below have failed to
appreciate that the petitioner was able to successfully rebut the presumption
raised under Section 139 of the NI Act and as such the conviction is liable to
be set aside. In this regard, reliance has been placed on G. Vasu v. Syed
4
Yaseen Sifuddin Quadri .
5. The first contention of the petitioner that in light of Section 145, the
complainant/Deepa Chawla ought to have appeared and deposed before the
Trial Court personally, is misconceived. There is no cavil with the
proposition of law, as laid down in A.C. Narayanan (Supra) that attorney
holder can depose and verify on oath before the Court, in order to prove the
contents of the complaint. In the said judgement, it was categorically
observed that the attorney holder may be allowed to file, appear and depose
for the purpose of section 138 NI Act if he has knowledge about the
transaction and can bring on record the truth of the grievance/offence. In this
regard, it is worthwhile to note that in the cross-examination of Ajay
Chawla, attorney holder, no suggestion was put to him that he had no
personal knowledge of the facts and could not have deposed before the
Court and thus, the petitioner failed to give any suggestion.
Coming to the second contention that the petitioner was able to rebut
the presumption, it is noted that neither the petitioner filed any document in
1 (2005) 2 SCC 217
2 (2014) 11 SCC 790
3 (2022) 7 SCC 612
4 AIR 1987 AP 139
CRL. M.C. Nos. 8317, 8360, 8377, 8383,
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Digitally Signed By:MANOJ
KUMAR OHRI
Signing Date:01.05.2024
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support of its defense nor led any evidence. Further, no material
contradictions was brought to light in the complainant’s case, during the
cross examination of Ajay Chawla. It is also pertinent to note that in the
trial, the petitioner Nos. 1 and 2 had pleaded guilty. However, petitioner
No.2/Narinder Kumar preferred an appeal in which he was permitted to
withdraw his plea of guilt, however petitioner No.1/M/s Keltech
Infrastructure Ltd., being the accused company did not file any such appeal.
6. Section 139 of the NI Act
stipulates that “unless the contrary is
proved, it shall be presumed, that the holder of the cheque received the
ame is a
cheque, for discharge of, whole or any part of the liability”. The s
presumption of law and the use of the words “shall presume” makes it
obligatory upon the Court to raise the presumption in cases wherein the fact
for raising the said presumption are established, however, the same is a
rebuttable presumption
The Supreme Court has time and again dealt upon the aspect of
presumption of Section 139 NI Act. Recently in Rajesh Jain v. Ajay Singh 5 ,
the Supreme Court observed as under:-
“xxx
37. As soon as the complainant discharges the burden to prove
that the instrument, say a cheque, was issued by the accused for
discharge of debt, the presumptive device under Section 139 of
the Act helps shifting the burden on the accused. The effect of the
presumption, in that sense, is to transfer the evidential burden on
the accused of proving that the cheque was not received by the
Bank towards the discharge of any liability. Until this evidential
burden is discharged by the accused, the presumed fact will have
to be taken to be true, without expecting the complainant to do
anything further.
5 (2023) 10 SCC 148
CRL. M.C. Nos. 8317, 8360, 8377, 8383,
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KUMAR OHRI
Signing Date:01.05.2024
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xxx
39. The standard of proof to discharge this evidential burden is
not as heavy as that usually seen in situations where the
prosecution is required to prove the guilt of an accused. The
accused is not expected to prove the non-existence of the
presumed fact beyond reasonable doubt. The accused must meet
the standard of “preponderance of probabilities”, similar to a
defendant in a civil proceeding. [Rangappa v. Sri Mohan]
40. In order to rebut the presumption and prove to the contrary,
it is open to the accused to raise a probable defence wherein the
existence of a legally enforceable debt or liability can be
contested. The words “unless the contrary is proved” occurring
in Section 139 does not mean that the accused must necessarily
prove the negative that the instrument is not issued in discharge
of any debt/liability but the accused has the option to ask the
Court to consider the non-existence of debt/liability so probable
that a prudent man ought, under the circumstances of the case, to
act upon the supposition that debt/liability did not exist.
[Basalingappa v. Mudibasappa; see also Kumar Exports v.
Sharma Carpets]
41. In other words, the accused is left with two options. The first
option of proving that the debt/liability does not exist is to
— —
lead defence evidence and conclusively establish with certainty
that the cheque was not issued in discharge of a debt/liability.
The second option is to prove the non-existence of debt/liability
by a preponderance of probabilities by referring to the particular
circumstances of the case. The preponderance of probability in
favour of the accused's case may be even fifty-one to forty-nine
and arising out of the entire circumstances of the case, which
includes: the complainant's version in the original complaint, the
case in the legal/demand notice, complainant's case at the trial,
as also the plea of the accused in the reply notice, his Section 313
Cr.P.C. statement or at the trial as to the circumstances under
which the promissory note/cheque was executed. All of them can
raise a preponderance of probabilities justifying a finding that
there was “no debt/liability” [Kumar Exports v. Sharma
CRL. M.C. Nos. 8317, 8360, 8377, 8383,
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KUMAR OHRI
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Carpets]
42. The nature of evidence required to shift the evidential burden
need not necessarily be direct evidence i.e. oral or documentary
evidence or admissions made by the opposite party; it may
comprise circumstantial evidence or presumption of law or fact.
43. The accused may adduce direct evidence to prove that the
instrument was not issued in discharge of a debt/liability and, if
he adduces acceptable evidence, the burden again shifts to the
complainant. At the same time, the accused may also rely upon
circumstantial evidence and, if the circumstances so relied upon
are compelling, the burden may likewise shift to the complainant.
It is open for him to also rely upon presumptions of fact, for
instance those mentioned in Section 114 and other sections of the
Evidence Act. The burden of proof may shift by presumptions of
law or fact…
44. Therefore, in fine, it can be said that once the accused
adduces evidence to the satisfaction of the Court that on a
preponderance of probabilities there exists no debt/liability in
the manner pleaded in the complaint or the demand notice or the
affidavit-evidence, the burden shifts to the complainant and the
presumption “disappears” and does not haunt the accused any
longer. The onus having now shifted to the complainant, he will
be obliged to prove the existence of a debt/liability as a matter of
fact and his failure to prove would result in dismissal of his
complaint case. Thereafter, the presumption under Section 139
does not again come to the complainant's rescue. Once both
parties have adduced evidence, the Court has to consider the
same and the burden of proof loses all its importance.
[Basalingappa v. Mudibasappa; see also, Rangappa v. Sri
Mohan]
xxx”
7. Considering the factual matrix and the legal position enumerated
above, it can be observed that to rebut the presumption under Section 139 NI
Act, the accused has to provide cogent evidence to show that the
CRL. M.C. Nos. 8317, 8360, 8377, 8383,
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Digitally Signed By:MANOJ
KUMAR OHRI
Signing Date:01.05.2024
21:06:45
debt/liability did not exist. Admittedly, the issuance of cheque is not
disputed. Moreover, in the present case, the petitioner did not file any
document or led any evidence in support of its contention. Another way to
rebut the presumption is to show that no debt/liability existed by way of
preponderance of probability, through the facts and circumstances of the
case. However, the petitioner failed to even achieve this threshold. Neither
in the facts pleaded by the petitioner nor in the cross-examination of Ajay
Chawla, a copy of which has been placed on record, any fact was brought on
record which would tilt the scales of probability in favour of the petitioner.
Thus, the petitioner failed to provide any evidence/fact to support its case.
8. Considering the aforesaid as well as the fact that the two courts below
have returned concurrent finding on the facts of the case, and in the absence
of any cogent evidence/fact being brought to the notice of this Court
warranting its interference, I am of the considered opinion that the said
petitions must fail. Resultantly, the petitions alongwith pending applications
are dismissed.
9. A copy of the order be communicated to the concerned trial court.
MANOJ KUMAR OHRI
(JUDGE)
APRIL 30, 2024
ga
CRL. M.C. Nos. 8317, 8360, 8377, 8383,
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8385, 8387, 8388 & 8416 of 2023 Page 9 of 9
Digitally Signed By:MANOJ
KUMAR OHRI
Signing Date:01.05.2024
21:06:45