Delhi District CourtNeeraj Sharma vs . Gaurav Kajla on 17 April, 2023Neeraj Sharma    Vs.   Gaurav Kajla\n\n\n\n           IN THE COURT OF SH. VIJAY SHANKAR,\nADDITIONAL SESSIONS JUDGE - 05, (CENTRAL DISTRICT)\n                 TIS HAZARI COURTS, DELHI\n\n\nCA No.:- 28/2021\nUNIQUE CASE ID NO.:- DLCT01-005398-2020\n\n\nIN THE MATTER OF :-\nNeeraj Sharma\nS/o Sh. Devender Sharma\nR/o 48/43, Gali No. 7,\nNai Basti, Anand Parbat,\nNew Delhi-110005                                           .... Appellant\n\n\n                               VERSUS\n\n\nGaurav Kajla\nS/o Sh. Sukh Pal Singh\nR/o Building No. B-1/26,\nFlat No. SF-1, DLF,\nAnkur Vihar, Loni\nGhaziabad-201102                                         .... Respondent\n\n\n\nDate of institution of the appeal                : 04/09/2020\nDate on which judgment was reserved              : 12/04/2023\nDate of judgment                                 : 17/04/2023\n\n\n                                                                Digitally signed\n                                                                by VIJAY\n                                                    VIJAY   SHANKAR\n                                                    SHANKAR Date:\n                                                            2023.04.17\n                                                                17:16:51 +0700\n\n\nCA No. 28/2021                                     Page No.1/35\n                    Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\n                             JUDGMENT1.            By way of present judgment, this Court shall\n\nconscientiously adjudicate upon criminal appeal undersection 374(3)of the Code of Criminal Procedure, 1973 (hereinafter referred to as\n\n"Cr.P.C.") filed by the appellant against the judgment dated\n\n26/06/2020 (hereinafter referred to as 'impugned judgment' ) and order\n\non sentence dated 05/08/2020 (hereinafter referred to as 'impugned\n\norder') passed by Ms. Tista Shah, Ld. MM-06 (N.I. Act), Central\n\nDistrict, Tis Hazari Courts, Delhi, in Criminal Complaint No.\n\n514074/2016 underSection 138of the Negotiable Instruments Act,\n\n1881 (hereinafter referred to as "N.I. Act") titled as "Gaurav Kajla Vs.\n\nNeeraj Sharma".In the present appeal, the appellant has prayed to call the\n\nrecord of the Ld. Trial Court and to set aside the impugned judgment\n\ndated 26/06/2020 and order on sentence dated 05/08/2020 passed by\n\nthe Ld. Trial Court.2.            Appellant has preferred the present appeal against the\n\njudgment dated 26/06/2020 and order on sentence dated 05/08/2020\n\npassed by the Ld. Trial Court. Vide judgment dated 26/06/2020, theDigitally signedby VIJAYSHANKARVIJAY     Date:SHANKAR   2023.04.17\n                                                                  17:17:00\n                                                                  +0700CA No. 28/2021                                    Page No.2/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\nappellant/accused was convicted by the Ld. Trial Court for the offence\n\nu/s. 138N.I. Act. Vide order on sentence dated 05/08/2020, the\n\nappellant was sentenced to undergo simple imprisonment for the\n\nperiod of three months and also directed to pay fine of Rs. 1,70,000/-\n\n(Rupees One Lakh Seventy Thousand Only) to be paid to the\n\ncomplainant as compensation and in default, to undergo simple\n\nimprisonment for the period of two months.3.           Brief facts necessary for just adjudication of the present\n\nappeal as stated in the present appeal are that the complainant\n\n(respondent herein) had filed the complaint caseu/s. 138N.I. Act\n\nagainst the accused (appellant herein). The appellant has not filed any\n\nsimilar appeal/ petition before this Court or any other Court of law or\n\nForum. The present appeal has been filed by the appellant within\n\nprescribed period.4.           The appellant has challenged the impugned judgment\n\nand order on sentence on the grounds, as mentioned in the present\n\nappeal.Grounds of appeal- Ld. Trial Court has passed the impugned order\n\non the basis of surmises and conjectures, ignoring the material factsDigitally signedby VIJAYVIJAY   SHANKAR\n                                                    SHANKAR Date:2023.04.17\n                                                              17:17:08 +0700CA No. 28/2021                                      Page No.3/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\nand circumstances of the case. It is settled law that before passing\n\njudgment and order, the Ld. Trial Court should have consider all the\n\nfacts and circumstances of the case. It is also well settled law that\n\npresumptions can be rebutted by raising presumptions of facts and law\n\non the basis of material available on record. It is also settled law that\n\nthe standard required from the accused to prove his defence is\n\npreponderance of probabilities and accused need not prove his defence\n\nbeyond reasonable doubts. In the present matter, the appellant has\n\ntaken the defence that he knew the complainant through one Sanjay\n\nGoswami and he came into contact with him while he was mediator in\n\nsale and purchase of Maruti Swift Desire bearing No.DL-13CB-1616\n\nbetween Sh.Ram Chandra and brother of the respondent namely\n\nSanjeev Kajla. At the time of entering into a dealing regarding the car,\n\nrespondent and his brother raised question that the eight to nine\n\ninstallments of the car are yet to be paid and therefore sought some\n\nassurance for payment of installments, for assuring the respondent, the\n\naccused handed over a cheque of Rs.1,00,000/- so that the deal may be\n\nmatured. The respondent had misused the cheque after clearing the\n\ndues. During the cross-examination, the respondent had admitted that\n\nhis brother is Sanjeev Kajla but he refused that they have car bearing\n\nNo.DL-13CB-1616. However, during the trial, the appellant requestedDigitally signedby VIJAYVIJAY   SHANKAR\n                                                        SHANKAR Date:2023.04.17\n                                                                  17:17:26 +0700CA No. 28/2021                                    Page No.4/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\nthe Ld. Trial Court to summon the witness from the Maruti Service\n\nCentre for proving his defence. According to the record of the Maruti\n\nService Centre, the respondent's brother was the owner of the said\n\nvehicle since year 2013, even prior to the presentation of the cheque\n\nand he continued to brought the vehicle to the Service Centre till May,\n\n2015, when the defence was taken by the appellant before the Ld.\n\nTrial Court. The same shows that the cheque was misused by the\n\nrespondent. The Ld. Trial Court has not even gone through the\n\ncontents of the complaint, cross-examination and defence of the case.As per the allegation of the complaint, the respondent gave a loan of\n\nRs.1,00,000/- to the appellant as there was family relationship\n\nbetween the appellant and respondent, however, during the cross-examination, the respondent could not able to disclose anything about\n\nthe family, address and other things regarding the appellant. The\n\nrespondent has stated that he came in contact with the appellant\n\nthrough Sh. Sanjay Goswami, however, the alleged loan was not given\n\nin his presence or even Sanjay Goswami has any knowledge about\n\nsuch loan. The Ld. Trial Court has not considered that during the\n\ncross-examination, the respondent stated that he used to maintain an\n\naccount of money advanced by him, however, he had not placed on\n\nrecord such account before the Ld. Trial Court. Even, the respondentDigitally signedby VIJAYVIJAY   SHANKAR\n                                                        SHANKAR Date:2023.04.17\n                                                                  17:17:35 +0700CA No. 28/2021                                    Page No.5/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\nhad not mentioned the loan amount in his ITR. The respondent had\n\nconcealed the fact regarding his soundness to extend loan and he\n\nrefused to provide his bank details. Ld. Trial Court had ignored the\n\nmaterial fact that the respondent had not mentioned anything\n\nregarding the urgency of the appellant, though, a specific defence was\n\ntaken by the respondent that the loan was taken by the appellant for\n\npurchasing E-rickshaw. However, the said defence never taken by the\n\nrespondent even in his notice, complaint and evidence by way of\n\naffidavit. The Ld. Trial Court had ignored the law laid down by the\n\nHon'ble Supreme Court and Hon'ble High Courts. The Ld. Trial Court\n\nhad failed to consider the ingredients ofsection 138N.I. Act. The\n\nrespondent had failed to prove that the legal notice was ever served\n\nupon the respondent. The respondent had also failed to prove that\n\nthere was any legally recoverable debts towards the appellant. The\n\nLd. Trial Court had ignored all material facts, hence, the judgment and\n\nfindings of the Ld. Trial Court are erroneous and liable to be set aside.Apart from the aforesaid grounds, the counsel for the\n\nappellant has raised some additional grounds of appeal during the\n\ncourse of arguments. The additional grounds of appeal shall be\n\ndiscussed later on.Digitally signedby VIJAYVIJAY   SHANKAR\n                                                       SHANKAR Date:2023.04.17\n                                                                 17:17:53 +0700CA No. 28/2021                                       Page No.6/35Neeraj Sharma   Vs.   Gaurav Kajla5.             Before proceeding further, it is relevant to mention here\n\nthe proceedings before the Ld. Trial Court.(i)            The complainant Gaurav Kajla had filed the complaint\n\nu/s. 138N.I. Actagainst the accused Neeraj Sharma before the Ld.\n\nTrial Court.It is mentioned in the complaintu/s. 138N.I. Act that for\n\nthe last 2-3 years, the accused had developed friendship with\n\ncomplainant. In the second week of May, 2014, accused had\n\napproached and requested the complainant for giving him a friendly\n\nloan of Rs.1,50,000/- as he was in dire need of money. The\n\ncomplainant keeping in view the friendly relations and need of the\n\naccused, advanced a loan of Rs.1,00,000/- to the accused. The accused\n\nacknowledged and confirmed the loan and in discharge of his legal\n\nliability, the accused gave a post dated cheque bearing No.000096\n\ndated 17/07/2014 amounting to Rs.1,00,000/- drawn on Kotak\n\nMahindra Bank, Ground Floor, 16/10, Arya Samaj Road, Karol Bagh,\n\nNew Delhi-110005 in favour of the complainant. The said cheque was\n\nissued with an assurance that same is good for payment and would be\n\nhonoured upon its presentation. The abovesaid cheque was presented\n\nby the complainant to his banker and the said cheque was dishonouredDigitally signedby VIJAYVIJAY   SHANKAR\n                                                         SHANKAR Date:2023.04.17\n                                                                    17:18:03 +0700CA No. 28/2021                                     Page No.7/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\nwith the remarks "Funds Insufficient". The complainant apprised the\n\naccused regarding the same but the accused lingering on the payment\n\nof said amount on one pretext or another. Thereafter, the complainant\n\nhad sent a legal notice dated 01/08/2014 through his counsel to the\n\naccused through Regd. AD/ Speed Post demanding the amount of the\n\nsaid cheque due from the accused. The legal notice was duly served\n\nupon the accused but neither reply to the legal notice was given nor\n\ncheque amount was paid.(ii)         Thereafter, the complainant had led his pre-summoning\n\nevidence by filing his evidence by way of affidavit, wherein he\n\nreiterated and reaffirmed the contents of the complaintu/s. 138N.I.\n\nAct.(iii)        Vide order dated 05/09/2014 passed by the Ld. Trial\n\nCourt, cognizance of the offence was taken and the accused was\n\nsummoned.(iv)         Finding a prima-facie case against the accused, notice\n\nu/s. 251Cr.P.C. for the offenceu/s. 138N.I. Act was given to him to\n\nwhich he pleaded not guilty and claimed trial.Vide order dated 13/01/2015, applicationu/s. 145 (2)N.I. Act of the accused was allowed.(v)          Complainant in support of his case and in post-Digitally signedby VIJAYVIJAY   SHANKAR\n                                                    SHANKAR Date:2023.04.17\n                                                              17:18:13 +0700CA No. 28/2021                                    Page No.8/35Neeraj Sharma   Vs.    Gaurav Kajla\n\n\n\nsummoning evidence had examined himself as CW-1 and witness\n\nSh. Anil Handa, Public Relation Inspector (Postal), Civil Lines PO,\n\nNew Delhi-110054. Complainant had adopted his pre-summoning\n\nevidence as post-summoning evidence also. CW-1 was cross-\n\nexamined by counsel for the accused.CW-1 in his testimony had relied upon cheque bearing\n\nNo.    000096    dated   17/07/2014      Ex.CW1/A,       returning      memo\n\ndated 19/07/2014 Ex.CW1/B, legal notice dated 01/08/2014\n\nEx.CW1/C, postal receipts Ex.CW1/D and delivery/ tracking report\n\nEx.CW1/E.(vi)         Separate statement of the accused was recordedu/s. 313/281Cr.P.C, wherein he denied the allegations against him and rebutted\n\nthe complainant evidence against him. It was stated by the accused in\n\nhis statement that the cheque in question belongs to him and it was\n\ngiven by him to Mr. Sanjay Goswami and he is the proprietor of AAR\n\nANN Group and he knew the complainant through Mr. Sanjay\n\nGoswami and he never taken any loan from the complainant and\n\ncheque in question was given by him to Mr. Sanjay Goswami in June,\n\n2013 for security purpose. It was further stated by the accused that he\n\nhad no financial transactions with the complainant. It was further\n\nstated by the accused that he does not remember as to whether he hadDigitally signedby VIJAYVIJAY           SHANKAR\n                                                     SHANKAR         Date:2023.04.17\n                                                                     17:18:23 +0700CA No. 28/2021                                     Page No.9/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\nreceived the legal demand notice Ex.CW-1/C or not. It was further\n\nstated by the accused that he wants to lead defence evidence.(vii)        The accused had led defence evidence and got examined\n\nhimself as DW-1 and Sh. O. P. Kathuria, G.M. Admin. Magic Auto\n\nPvt. Ltd as DW-2. DW-1 and DW-2 were cross-examined by counsel\n\nfor the complainant.Accused had relied upon the agreement Ex.CW-1/D-1\n\nand service record of the vehicle bearing No.DL-13CB-1616\n\nEx.DW-2/A.(viii)       Thereafter, final arguments were heard by the Ld. Trial\n\nCourt. Vide judgment passed by the Ld. Trial Court, accused was\n\nconvicted for the offenceu/s. 138N.I. Act and order on sentence was\n\npassed by the Ld. Trial Court.6.           This Court already heard the arguments on the present\n\nappeal advanced by Ld. Counsel for the parties. Perused the material\n\navailable on record.During the course of arguments, it was submitted by Ld.\n\nCounsel for the appellant that the impugned judgment and order on\n\nsentence are liable to be set-aside on the grounds, as mentioned in the\n\npresent appeal. On the other hand, it was submitted by Ld. CounselDigitally signedby VIJAYVIJAY       SHANKAR\n                                               SHANKAR     Date:2023.04.17\n                                                           17:18:32 +0700CA No. 28/2021                                    Page No.10/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\nfor the respondent that the Ld. Trial Court has passed the impugned\n\njudgment and order on sentence in accordance with law and there is\n\nno merits in the present appeal and the same is liable to be dismissed.The counsel for the appellant in support of his\n\ncontentions has relied upon the following case laws:-(a)     Maheshwar Tigga Vs. The State of Jharkhand\n\n                    {Criminal   Appeal     No.   635/2020    decided        on\n\n                    28/09/2020 by Hon'ble Supreme Court of India}(b) M. S. Narayana Menon @ Mani Vs. State of Kerala\n\n                    & Anr. {Criminal Appeal No. 1012/1999 decided on\n\n                    04/07/2006 by Hon'ble Supreme Court of India}(c) Chander Kanta & Anr. Vs. M/s. Anand Agro\n\n                    Industries & Ors. {CRA-AS. 30/2015 decided on\n\n                    20/11/2017 by Hon'ble Punjab and Haryana High\n\n                    Court}(d) Vijay Vs. Laxman & Anr. {Criminal Appeal No.\n\n                    261/2013 decided on 07/02/2013 by Hon'ble\n\n                    Supreme Court of India}(e) Krishna Janardhan Bhat Vs. Dattatraya G. Hegde\n\n                    {Criminal   Appeal     No.518/2006    decided        on\n\n                    11/01/2008 by Hon'ble Supreme Court of India}Digitally signedby VIJAY\n                                                     VIJAY   SHANKAR\n                                                     SHANKAR Date: 2023.04.17\n                                                                 17:18:42 +0700CA No. 28/2021                                      Page No.11/35Neeraj Sharma   Vs.   Gaurav Kajla(f) Rajendraprasad Vs. Santosh Kumar Parasmal\n\n                 { decided on 04/03/2008 by Hon'ble Bombay High\n\n                 Court}(g) Vinay Parulekar Vs. Pramod Meshram{ 2008 (2)\n\n                 MHLJ 115}(h) Anil Raj Vs. Integrated Finance Co. Ltd.{ 2006 (1)\n\n                 ALD Cri. 36}(i) K. O. Chacko Vs. Kurian P. V. & Ors. { III(2007) BC\n\n                 243}\n\n\n\n             The counsel for the respondent in support of his\n\ncontentions has relied upon the case law titled as "Prakash Jewellers\n\nVs. A. K. Jewellers{ 2002 (99) DLT 244}.7.           For the sake of ready reference,section 138N.I. Act is\nreproduced as under:-Section 138-Dishonour of cheque for\n           insufficiency, etc., of funds in the account -\n           Where any cheque drawn by a person on an\n           account maintained by him with a banker for\n           payment of any amount of money to another\n           person from out of that account for the\n           discharge, in whole or in part, of any debt or\n           other liability, is returned by the bank unpaid,\n           either because of the amount of money standing\n           to the credit of that account is insufficient toDigitally signedby VIJAYVIJAY        SHANKAR\n                                                 SHANKAR      Date:2023.04.17\n                                                              17:18:51 +0700CA No. 28/2021                                   Page No.12/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\n            honour the cheque or that it exceeds the amount\n            arranged to be paid from that account by an\n            agreement made with that bank, such person\n            shall be deemed to have committed an offence\n            and shall, without prejudice to any other\n            provision of this Act, be punished with\n            imprisonment for a term which may extended to\n            two years, or with fine which may extend to\n            twice the amount of the cheque, or with both:\n            Provided that nothing contained in this section\n            shall apply unless-(a) the cheque has been presented to the bank\n            within a period of six months from the date on\n            which it is drawn or within the period of its\n            validity, whichever is earlier.(b)the payee or the holder in due course of the\n            cheque, as the case may be, makes a demand for\n            the payment of the said amount of money by\n            giving a notice in writing, to the drawer of the\n            cheque, within thirty days of the receipt of\n            information by him from the bank regarding the\n            return of the cheque as unpaid; and(c) the drawer of such cheque fails to make the\n            payment of the said amount of money to the\n            payee or, as the case may be, to the holder in\n            due course of the cheque, within fifteen days of\n            the receipt of the said notice.Explanation. - For the purposes of this section,\n            `debt or other liability' means a legally\n            enforceable debt or other liability.Ingredients ofSection 138N.I. Act have been specified\nby the Hon'ble Supreme Court of India in case titled as "Gimpex\nPrivate Limited Vs. Manoj Goel", {(2021) SCC Online SC 925} as\nunder:-"The ingredients of the offence underSection 138Digitally signedby VIJAYSHANKARVIJAY   Date:SHANKAR 2023.04.17\n                                                                   17:19:00\n                                                                   +0700CA No. 28/2021                                     Page No.13/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\n        are:(i) The drawing of a cheque by person on an account\n        maintained by him with the banker for the payment of\n        any amount of money to another from that account;(ii) The cheque being drawn for the discharge in\n        whole or in part of any debt or other liability;(iii) Presentation of the cheque to the bank;(iv) The return of the cheque by the drawee bank as\n        unpaid either because the amount of money standing\n        to the credit of that account is insufficient to PART C\n        honour the cheque or that it exceeds the amount\n        arranged to be paid from that account;(v) A notice by the payee or the holder in due course\n        making a demand for the payment of the amount to\n        the drawer of the cheque within 30 days of the receipt\n        of information from the bank in regard to the return of\n        the cheque; and(vi) The drawer of the cheque failing to make\n        payment of the amount of money to the payee or the\n        holder in due course within 15 days of the receipt of\n        the notice".8.           The object ofN.I. Acthas been elaborated by the\nHon'ble Supreme Court of India in case titled as M/s Dalmia Cement\n(Bharat) Ltd. Vs. M/s. Galaxy Traders and Agencies Ltd., (2001(1)\nR.C.R. (Criminal) 646) and it was held that :-"The Actwas enacted andSection 138thereof\n        incorporated with a specified object of making a\n        special provision by incorporating a strict liability so\n        far as the cheque, a negotiable instrument, is\n        concerned. The law relating to negotiable instrument\n        is the law of commercial world legislated to facilitate\n        the activities in trade and commerce making\n        provision of giving sanctity to the instruments of\n        credit which could be deemed to be convertible into\n        money and easily passable from one person toDigitally signedby VIJAYSHANKARVIJAY      Date:SHANKAR    2023.04.17\n                                                             17:19:10\n                                                             +0700CA No. 28/2021                                    Page No.14/35Neeraj Sharma   Vs.    Gaurav Kajla\n\n\n\n       another.      In the absence of such instruments,including a cheque, the trade and commerce\n       activities, in the present-day world, are likely to be\n       adversely affected as it is impracticable for the\n       trading community to carry on with it the bulk of the\n       currency in force. The negotiable instruments are in\n       fact the instruments of credit being convertible on\n       account of legality of being negotiated and are easily\n       passable from one hand to another. To achieve the\n       objectives of the Act, the legislature has, in its\n       wisdom, thought it proper to make such provisions in\n       the Act, for conferring such privileges to the\n       mercantile instruments contemplated under it and\n       provide special penalties and procedure in case the\n       obligations under the instruments are not discharged.\n       The laws relating to the Act are, therefore, required to\n       be interpreted in the light of the objects intended to be\n       achieved by it despite there being deviations from the\n       general law and the procedure provided for the\n       redressal of the grievances to the litigants. Efforts to\n       defeat the objectives of law by resorting to innovative\n       measures and methods are to be discouraged, lest it\n       may affect the commercial and mercantile activities in\n       a smooth and healthy manner, ultimately affecting the\n       economy of the country".It was held by Hon'ble Supreme Court of India in case\n\ntitled as "M/sLaxmi Dyechem Vs. State of Gujarat & Ors.",\n\n{(2012) 13 SCC 375} that :-"Chapter XVII comprisingSections 138to142of the\n       Negotiable Instruments Act was introduced in the\n       statute by Act 66 of 1988. The object underlying the\n       provision contained in the said Chapter was aimed at\n       inculcating faith in the efficacy of banking operations\n       and giving credibility to negotiable instruments in\n       business and day to day transactions by making\n       dishonour of such instruments an offence. ADigitally signedby VIJAYSHANKARVIJAY     Date:SHANKAR   2023.04.17\n                                                              17:19:33\n                                                              +0700CA No. 28/2021                                    Page No.15/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\n        negotiable instrument whether the same is in the form\n        of a promissory note or a cheque is by its very nature\n        a solemn document that carries with it not only a\n        representation to the holder in due course of any such\n        instrument but also a promise that the same shall be\n        honoured for payment. To that endSection 139of the\n        Act raises a statutory presumption that the cheque is\n        issued in discharge of a lawfully recoverable debt or\n        other liability. This presumption is no doubt\n        rebuttable at trial but there is no gainsaying that the\n        same favours the complainant and shifts the burden to\n        the drawer of the instrument (in case the same is\n        dishonoured) to prove that the instrument was without\n        any lawful consideration. It is also noteworthy thatSection 138while making dishonour of a cheque an\n        offence punishable with imprisonment and fine also\n        provides for safeguards to protect drawers of such\n        instruments where dishonour may take place for\n        reasons other than those arising out of dishonest\n        intentions. It envisages service of a notice upon the\n        drawer of the instrument calling upon him to make\n        the payment covered by the cheque and permits\n        prosecution only after the expiry of the statutory\n        period and upon failure of the drawer to make the\n        payment within the said period.".9.            Before proceeding further, it is relevant to discuss the\n\nother relevant provisions ofN.I. Act.Section 6N.I. Act has prescribed the definition of\n\ncheque and cheque is Negotiable Instrument within the meaning ofsection 13of the Act.Section 30N.I. Act talks about the liability of\n\nthe drawer.Section 20N.I. Act talks about inchoate stampedDigitally signedby VIJAYVIJAY   SHANKAR\n                                                        SHANKAR Date:2023.04.17\n                                                                   17:19:45 +0700CA No. 28/2021                                    Page No.16/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\ninstruments.Section 87talks about effect of material alteration of a\n\nNegotiable Instrument.Section 118N.I. Act talks about presumptions as to\n\nnegotiable instruments of consideration, date, time of acceptance, time\n\nof transfer, order of endorsement, stamps and holder in due course.Section 139N.I. Act deals with presumption of law in\n\nfavour of holder of a cheque. It provides that unless the contrary is\n\nproved, it shall be presumed that the holder of a cheque received the\n\ncheque for the discharge, in whole or in part, of any debt or other\n\nliability. It is a rebuttable presumption of law and the burden of\n\nproving that a cheque has not been issued for a debt or liability is on\n\nthe accused.10.            Vide impugned judgment dated 26/06/2020, the Ld. Trial\n\nCourt convicted the appellant/ accused for the offenceu/s. 138N.I.\n\nAct on the grounds that:-(a)      The accused has admitted that the cheque was issued by\n\n      him after signing the same.(b)      The cheque was issued by the accused for the discharge\n\n      of a legally recoverable debt or liability.(c)      The cheque was dishonoured due to insufficient funds inDigitally signedby VIJAYVIJAY   SHANKAR\n                                                    SHANKAR Date:2023.04.17\n                                                               17:20:10 +0700CA No. 28/2021                                      Page No.17/35Neeraj Sharma     Vs.   Gaurav Kajla\n\n\n\n       the account of the accused.(d)    The legal/ demand notice was duly served upon the\n\n       accused.(e)    Despite service of legal notice, the accused had failed to\n\n       make the payment to the complainant.(f)    The accused has failed to rebut the presumption taken in\n\n       favour of the complainant.(g)    The complainant has successfully proved all essential\n\n       ingredients ofSection 138N.I. Act.11.                         CONTENTIONS(a).          It is the contention of the appellant that the cheque was\n\nissued and signed by him but rest of the particulars have been filled by\n\nsomeone else.Section 20N.I. Act talks about inchoate stamped\n\ninstruments.Section 20N.I. Act provides that where a person delivers\n\na signed but a wholly blank or written incomplete negotiable\n\ninstrument, he is deemed to have given prima-facie authority to the\n\nholder to fill-up the particulars in it or complete it and this makes him\n\nliable for the amount mentioned therein, in the capacity in which heDigitally signedby VIJAYSHANKARVIJAY   Date:SHANKAR 2023.04.17\n                                                                    17:20:20\n                                                                    +0700CA No. 28/2021                                      Page No.18/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\nsigned the same, to any holder in due course of such amount. Thus,\n\nblank or incomplete written but signed cheque and filled-up by any\n\nother person is a valid negotiable instrument and prosecution underSection 138N.I. Act can be initiated on the basis of such a cheque.It was held by Hon'ble Supreme Court of India in case\n\ntitled as "Bir Singh Vs. Mukesh Kumar", {(2019) 4 SCC 197} that:-"A meaningful reading of the provisions of theNegotiable Instruments Actincluding, in particular,Sections 20,87and139, makes it amply clear that a\n        person who signs a cheque and makes it over to the\n        payee remains liable unless he adduces evidence to\n        rebut the presumption that the cheque had been\n        issued for payment of a debt or in discharge of a\n        liability. It is immaterial that the cheque may have\n        been filled in by any person other than the drawer, if\n        the cheque is duly signed by the drawer. If the cheque\n        is otherwise valid, the penal provisions ofSection 138would be attracted.If a signed blank cheque is voluntarily presented\n        to a payee, towards some payment, the payee may fill\n        up the amount and other particulars. This in itself\n        would not invalidate the cheque. The onus would still\n        be on the accused to prove that the cheque was not in\n        discharge of a debt or liability by adducing evidence.It is not the case of the respondent-accused that\n        he either signed the cheque or parted with it under\n        any threat or coercion. Nor is it the case of the\n        respondent-accused that the unfilled signed cheque\n        had been stolen. The existence of a fiduciary\n        relationship between the payee of a cheque and its\n        drawer, would not disentitle the payee to the benefit of\n        the presumption underSection 139of the Negotiable\n        Instruments Act, in the absence of evidence of\n        exercise of undue influence or coercion. The second\n        question is also answered in the negative.Digitally signedby VIJAYVIJAY   SHANKAR\n                                                SHANKAR Date:2023.04.17\n                                                            17:20:28 +0700CA No. 28/2021                                    Page No.19/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\n             Even a blank cheque leaf, voluntarily signed\n       and handed over by the accused, which is towards\n       some payment, would attract presumption underSection 139of the Negotiable Instruments Act, in the\n       absence of any cogent evidence to show that the\n       cheque was not issued in discharge of a debt.The fact that the appellant-complainant might\n       have been an Income Tax practitioner conversant\n       with knowledge of law does not make any difference\n       to the law relating to the dishonour of a cheque. The\n       fact that the loan may not have been advanced by a\n       cheque or demand draft or a receipt might not have\n       been obtained would make no difference. In this\n       context, it would, perhaps, not be out of context to\n       note that the fact that the respondent-accused should\n       have given or signed blank cheque to the appellant-\n       complainant, as claimed by the respondent-accused,\n       shows that initially there was mutual trust and faith\n       between them.In the absence of any finding that the cheque in\n       question was not signed by the respondent-accused or\n       not voluntarily made over to the payee and in the\n       absence of any evidence with regard to the\n       circumstances in which a blank signed cheque had\n       been given to the appellant-complainant, it may\n       reasonably be presumed that the cheque was filled in\n       by the appellant-complainant being the payee in the\n       presence of the respondent-accused being the\n       drawer,at his request and/or with his acquiescence.\n       The subsequent filling in of an unfilled signed cheque\n       is not an alteration. There was no change in the\n       amount of the cheque, its date or the name of the\n       payee. The High Court ought not to have acquitted\n       the respondent-accused of the charge underSection\n       138of the Negotiable Instruments Act.In our considered opinion, the High Court\n       patently erred in holding that the burden was on the\n       appellant-complainant to prove that he had advanced\n       the loan and the blank signed cheque was given to\n       him in repayment of the same. The finding of the High\n       Court that the case of the appellant-complainantDigitally signedby VIJAYVIJAY   SHANKAR\n                                                       SHANKAR Date:2023.04.17\n                                                                 17:21:09 +0700CA No. 28/2021                                   Page No.20/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\n        became highly doubtful or not beyond reasonable\n        doubt is patently erroneous for the reasons discussed\n        above."It was held by Hon'ble Supreme Court of India in case titled\nas "Kalamani Tex & Another Vs. P. Balasubramanian", {(2021) 5\nSCC 283} that :-"........The Statute mandates that once the\n        signature(s) of an accused on the cheque/negotiable\n        instrument are established, then these reverse onus\n        clauses become operative. In such a situation, the\n        obligation shifts upon the accused to discharge the\n        presumption imposed upon him.......".The appellant/ accused at the time of framing noticeu/s.\n\n251Cr.P.C. stated that the cheque was issued and signed by him but\n\nrest of the particulars were filled by some else and the cheque was\n\ngiven by him at the residence of the complainant to the complainant\n\nhimself. Issuance of the cheque by the appellant/ accused is not\n\ndisputed. The appellant has also not disputed his signature on the\n\ncheque Ex.CW1/A. In view of the lawlaid down inBir Singhcase\n\n(Supra), it is clear that that a person who signs a cheque and makes it\n\nover to the payee remains liable unless he adduces evidence to rebut the\n\npresumption that the cheque had been issued for payment of a debt or\n\nin discharge of a liability. The appellant/ accused had failed to adduce\n\nany specific evidence to rebut the presumption in this regard. In viewDigitally signedby VIJAYVIJAY   SHANKAR\n                                                    SHANKAR Date:2023.04.17\n                                                              17:21:31 +0700CA No. 28/2021                                    Page No.21/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\nof the same, the contention of the appellant in this regard is not tenable.(b)           It is the contention of the appellant that the cheque was\n\ngiven by him to one Sh. Sanjay Goswami at his office and the cheque\n\nwas given by him as security for one Sh. Ram Chander. It is also the\n\ncontention of the appellant that the appellant knew the complainant\n\nthrough one Sanjay Goswami and he came into contact with him while\n\nhe was mediator in sale and purchase of Maruti Swift Desire bearing\n\nNo.DL-13CB-1616 between Sh. Ram Chandra and brother of the\n\nrespondent namely Sanjeev Kajla and at the time of entering into a\n\ndealing regarding the car, respondent and his brother raised question\n\nthat the eight to nine installments of the car are yet to be paid and\n\ntherefore sought some assurance for payment of installments, for\n\nassuring the respondent, the accused handed over a cheque of\n\nRs.1,00,000/- so that the deal may be matured. It is also the contention\n\nof the appellant that the respondent had misused the cheque after\n\nclearing the dues and during the cross-examination, the respondent had\n\nadmitted that his brother is Sanjeev Kajla but he refused that they have\n\ncar bearing No.DL-13CB-1616.The appellant/accused had not examined Sh. Sanjay\n\nGoswami, Sh. Ram Chander and Sh. Sanjeev Kajla before the Ld. TrialDigitally signedby VIJAYVIJAY   SHANKAR\n                                                         SHANKAR Date:2023.04.17\n                                                                    17:21:43 +0700CA No. 28/2021                                     Page No.22/35Neeraj Sharma    Vs.   Gaurav Kajla\n\n\n\nCourt in support of his contentions. The appellant/accused had failed to\n\nprove the relevancy of the transaction of the aforesaid vehicle/car.\n\nAppellant/accused had also failed to prove the fact that the cheque was\n\ngiven for security purpose. In view of the same, the contention of the\n\nappellant in this regard is not tenable.(c)           It is the contention of the appellant/ accused that he had\n\nnot received the demand/legal notice from the complainant.It was held by Hon'ble Supreme Court of India in case\n\ntitled as "C. C. Alavi Haji Vs. Palapetty Muhammed and Another",\n\n{ 2007) 6 SCC 555} that:-"........It is, thus, trite to say that where the payee\n        dispatches the notice by registered post with correct\n        address of the drawer of the cheque, the principle\n        incorporated inSection 27of the G.C. Act would be\n        attracted; the requirement of Clause (b) of proviso toSection 138of the Act stands complied with.........\n\n        ...........In our opinion, therefore, when the notice is\n        sent by registered post by correctly addressing the\n        drawer of the cheque, the mandatory requirement of\n        issue of notice in terms of Clause (b) of proviso toSection 138of the Act stands complied with..........."The appellant/accused at the time of framing noticeu/s.\n\n251Cr.P.C. stated that he had not received legal demand notice fromDigitally signedby VIJAYVIJAY   SHANKAR\n                                                          SHANKAR Date:2023.04.17\n                                                                    17:21:53 +0700CA No. 28/2021                                      Page No.23/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\nthe complainant, however, he resides at the address mentioned in the\n\nlegal notice.    The appellant/ accused in his statementu/s. 313/281Cr.P.C. stated that he does not remember whether he had received the\n\nlegal demand notice Ex.CW1/C or not.Section 27of General Clauses\n\nAct deals with the presumption of service of notice sent by post and\n\nprovides that service of such notice shall be deemed to have been\n\naffected unless the contrary is proved. It is admitted fact that the\n\nappellant/ accused was residing at the address as mentioned in the legal\n\ndemand notice Ex.CW1/C. Ex.CW1/D are the postal receipts and\n\nEx.CW1/E is the tracking report. In Ex.CW-1/E legal notice is shown\n\nto be delivered to appellant Neeraj Sharma on 04/08/2014. The\n\nappellant/ accused in support of his contention had not led any\n\nevidence to show that the legal notice Ex.CW1/C was not served upon\n\nhim.During the course of cross-examination of complainant/CW-1,\n\ncounsel for the accused had not put any question to CW-1 to dispute the\n\nauthenticity of Ex. CW-1/D and Ex. CW-1/E. On the other hand, the\n\ncomplainant had proved on record Ex.CW1/C, Ex.CW1/D and\n\nEx.CW1/E. In view of the law laid down inC. C. Alavi Hajicase\n\n(supra), the contention of the appellant in this regard is not tenable.(d)             It is the contention of the appellant that the complainantDigitally signedby VIJAYVIJAY   SHANKAR\n                                                      SHANKAR Date:2023.04.17\n                                                                17:22:00 +0700CA No. 28/2021                                      Page No.24/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\nhad not led any evidence regarding his financial capacity and\n\nsoundness to extend loan.It was held by Hon'ble Supreme Court of India in case\ntitled as " Rohit Bhai Jivanlal Patel Vs. State of Gujarat &\nAnother", {(2019) 18 SCC 106} that:-"In the case at hand, even after purportedly drawing\n       the presumption underSection 139of the NI Act, the\n       Trial Court proceeded to question the want of\n       evidence on the part of the complainant as regards\n       the source of funds for advancing loan to the accused\n       and want of examination of relevant witnesses who\n       allegedly extended him money for advancing it to the\n       accused. This approach of the Trial Court had been at\n       variance with the principles of presumption in law.\n       After such presumption, the onus shifted to the\n       accused and unless the accused had discharged the\n       onus by bringing on record such facts and\n       circumstances as to show the preponderance of\n       probabilities tilting in his favour, any doubt on the\n       complainant's case could not have been raised for\n       want of evidence regarding the source of funds for\n       advancing loan to the accused-appellant. The aspect\n       relevant for consideration had been as to whether the\n       accused-appellant has brought on record such\n       facts/material/circumstances which could be of a\n       reasonably probable defence."It was held by Hon'ble Supreme Court of India in case\ntitled as "Tedhi Singh Vs. Narayan Dass Mahant", {(2022) SCC\nOnline SC 302} that:-"The Trial Court and the First Appellate Court have\n       noted that in the case underSection 138of the N. I.\n       Act the complainant need not show in the firstDigitally signedby VIJAY\n                                                VIJAY   SHANKAR\n                                                SHANKAR Date: 2023.04.17\n                                                            17:22:09 +0700CA No. 28/2021                                   Page No.25/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\n        instance that he had the capacity. The proceedings\n        underSection 138of the N. I. Act is not a civil suit. At\n        the time, when the complainant gives his evidence,\n        unless a case is set up in the reply notice to the\n        statutory notice sent, that the complainant did not\n        have the wherewithal, it cannot be expected of the\n        complainant to initially lead evidence to show that he\n        had the financial capacity. To that extent the Courts\n        in our view were right in holding on those lines......."Hence, financial capacity was not required to be proved\n\nby the complainant. In view of the law laid down in Rohit Bhai\n\nJivanlal Patel and Tedhi Singh cases (Supra), the contention of the\n\nappellant is not tenable in this regard.(e)           It is the contention of the appellant that the complainant\n\nhad not mentioned the loan amount in his ITR and same shows that no\n\nloan was ever extended to the appellant.It is well settled law that merely because the loan amount\n\nis not shown in the Income Tax Return, in every case, one cannot jump\n\nto the conclusion that the presumptionu/s. 139N.I. Act stands rebutted.\n\nFailure to show the loan amount in Income Tax Return cannot always\n\nsaid to be fatal to the case.It was held by Hon'ble Delhi High Court in case titled as\n\n"Lekh Raj Sharma Vs. Yash Pal Gupta.", {Crl. LP 567/2014Digitally signedby VIJAYVIJAY   SHANKAR\n                                                      SHANKAR Date:2023.04.17\n                                                                17:22:17 +0700CA No. 28/2021                                      Page No.26/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\ndecided on 30/06/2015 } that:-"The finding that, as the amount of loan disbursed to\n        the respondent was not shown in the balance sheet\n        and ITR, the appellant could not be said to have\n        proved its case beyond reasonable doubt, is also\n        erroneous......"It was held by Hon'ble Bombay High Court in case titled\n\nas "Krishna P. Morajkar Vs. Joe Ferrao & Anr.", {2013 ALL MR\n\n(Cri) 4129} that:-".......The entire scheme of theIncome Tax Actis for\n        ensuring that all amounts are accounted for. If some\n        amounts are not accounted for, the person would be\n        visited with the penalty or at times even prosecution\n        under theIncome Tax Act, but it does not mean that\n        the borrower can refuse to pay the amount which he\n        has borrowed simply, because there is some infraction\n        of the provisions of theIncome Tax Act. Infraction of\n        provisions ofIncome Tax Actwould be a matter\n        between the revenue and the defaulter and advantage\n        thereof cannot be taken by the borrower. ......."Non-mentioning of the loan amount in the ITR may entail\n\nconsequences underIncome Tax Actbut it does not mean that the\n\nborrower can refuse to pay the amount which he has borrowed simply,\n\nbecause there are some fractions in provisions of theIncome Tax Act.\n\nThe appellant cannot escape from his legal liability to pay the loan\n\namount only on the ground that the complainant had not mentioned the\n\nloan amount in his ITR. In view of the law laid down in Leh RajDigitally signedby VIJAYVIJAY   SHANKAR\n                                                          SHANKAR Date:2023.04.17\n                                                                    17:22:48 +0700CA No. 28/2021                                      Page No.27/35Neeraj Sharma    Vs.   Gaurav Kajla\n\n\n\nSharma and Krishna P. Morajkar cases (Supra), the contention of the\n\nappellant in this regard is not tenable.(f)           It is the contention of the appellant that all the specific\n\nallegations have not been put to the accused in his statementu/s. 313/281Cr.P.C. On perusal of statementu/s. 313/281Cr.P.C., it is revealed\n\nthat all the incriminating evidence were put to the accused and the\n\naccused replied the same and it was also stated that he wants to lead\n\ndefence evidence. In view of the same, the contention of the appellant\n\nin this regard is not tenable.(g)           It is the contention of the appellant that appellant was not\n\ngiven opportunity to cross-examine CW-2. On perusal of testimony of\n\nCW-2, it is revealed that the aforesaid witness was the witness of the\n\nrecord. CW-2 was summoned by the complainant in respect of the\n\nrecord of speed post. CW-2 in his testimony had deposed that the\n\nrecord was weeded out and delivery report with respect to speed post is\n\navailable on internet. On perusal of order-sheet dated 20/11/2015, it is\n\nrevealed that the accused and his counsel were present at the time of\n\nexamination of CW-2. No doubt the opportunity to cross-examine\n\nCW-2 was to be given to the accused. But the accused and his counselDigitally signedby VIJAYVIJAY   SHANKAR\n                                                     SHANKAR Date:2023.04.17\n                                                                17:22:56 +0700CA No. 28/2021                                      Page No.28/35Neeraj Sharma   Vs.        Gaurav Kajla\n\n\n\nhad also not asked for the cross-examination of CW-2. Even, the\n\naccused had also not filed any application before the Ld. Trial Court for\n\nrecalling of    CW-2. Even otherwise, the complainant/CW-1 in his\n\ntestimony had duly proved on record postal receipts Ex. CW-1/D and\n\ntracking   report    Ex.    CW-1/E.        In     the   cross-examination             of\n\ncomplainant/CW-1, the counsel for the accused had not put any\n\nquestion regarding authenticity of Ex. CW-1/D and Ex. CW-1/E. In\n\nview of the same, the contention of the appellant in this regard is not\n\ntenable.(h)            It is the contention of the appellant that the Ld. Trial\n\nCourt had ignored the material fact that the respondent/complainant\n\nhad not     mentioned anything regarding                the     urgency of           the\n\nappellant/accused for taking loan. The aforesaid contention of the\n\nappellant is not tenable in view of the fact that issuance of cheque and\n\nhanding over the same to the complainant is admitted by the\n\nappellant/accused.(i)            It is also the contention of the appellant that as per\n\ncomplainant, the complainant had given a loan of Rs. 1,00,000/- to the\n\nappellant as there was family relationship between the appellant and theDigitally signedby VIJAYVIJAY   SHANKAR\n                                                               SHANKAR Date:2023.04.17\n                                                                         17:23:04 +0700CA No. 28/2021                                           Page No.29/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\nrespondent but the complainant in his cross-examination could not able\n\nto disclose anything about the family, address and other things of the\n\nappellant. The complainant in his complaint and testimony nowhere\n\nstated that he was having family relationship with the appellant/\n\naccused. In view of the same, the contention of the appellant in this\n\nregard is not tenable.(j)           It is the contention of the appellant that in view of the\n\ngrounds mentioned in the present appeal, the appellant/accused had\n\nbeen successful to rebut the presumptionu/s. 118and139N.I. Act.It is well settled law that the presumptionsu/s. 118and139of the N.I. Act are rebuttable and burden is on the accused to rebut\n\nthe presumption which can be discharged by the accused by\n\npreponderance of probabilities. It is well settled law that presumptions\n\nu/s. 118 and 139 of theN.I. Acthave to be rebutted by cogent evidence\n\nand mere plausible explanation is not enough.It was held by Hon'ble Supreme Court of India in case\n\ntitled as "Kumar Exports Vs. Sharma Carpets", {(2009) 2 SCC\n\n513} that:-" The accused in a trial underSection 138of the Act\n        has two options. He can either show thatDigitally signedby VIJAYVIJAY     SHANKAR\n                                                    SHANKAR   Date:2023.04.17\n                                                              17:23:15 +0700CA No. 28/2021                                     Page No.30/35Neeraj Sharma   Vs.    Gaurav Kajla\n\n\n\n      consideration and debt did not exist or that under the\n      particular circumstances of the case the non-existence\n      of consideration and debt is so probable that a\n      prudent man ought to suppose that no consideration\n      and debt existed. To rebut the statutory presumptions\n      an accused is not expected to prove his defence\n      beyond reasonable doubt as is expected of the\n      complainant in a criminal trial. The accused may\n      adduce direct evidence to prove that the note in\n      question was not supported by consideration and that\n      there was no debt or liability to be discharged by him.\n      However, the court need not insist in every case that\n      the accused should disprove the non- existence of\n      consideration and debt by leading direct evidence\n      because the existence of negative evidence is neither\n      possible nor contemplated. At the same time, it is\n      clear that bare denial of the passing of the\n      consideration and existence of debt, apparently would\n      not serve the purpose of the accused. Something which\n      is probable has to be brought on record for getting the\n      burden of proof shifted to the complainant. To\n      disprove the presumptions, the accused should bring\n      on record such facts and circumstances, upon\n      consideration of which, the court may either believe\n      that the consideration and debt did not exist or their\n      non-existence was so probable that a prudent man\n      would under the circumstances of the case, act upon\n      the plea that they did not exist.........."It was held by Hon'ble Supreme Court of India in case titled as\n\n"Rangappa Vs. Sri Mohan", {(2010) 11 SCC 441} that:-"Section 139of the Act is an example of a reverse\n       onus clause that has been included in furtherance of\n       the legislative objective of improving the credibility of\n       negotiable instruments. WhileSection 138of the Act\n       specifies a strong criminal remedy in relation to the\n       dishonour of cheques, the rebuttable presumption\n       underSection 139is a device to prevent undue delay\n       in the course of litigation. However, it must beDigitally signedby VIJAYVIJAY      SHANKAR\n                                                    SHANKAR    Date:2023.04.17\n                                                               17:23:25 +0700CA No. 28/2021                                    Page No.31/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\n        remembered that the offence made punishable bySection 138can be better described as a regulatory\n        offence since the bouncing of a cheque is largely in\n        the nature of a civil wrong whose impact is usually\n        confined to the private parties involved in commercial\n        transactions. In such a scenario, the test of\n        proportionality should guide the construction and\n        interpretation of reverse onus clauses and the\n        accused/defendant cannot be expected to discharge\n        an unduly high standard or proof. In the absence of\n        compelling justifications, reverse onus clauses\n        usually impose an evidentiary burden and not a\n        persuasive burden. Keeping this in view, it is a settled\n        position that when an accused has to rebut the\n        presumption underSection 139, the standard of proof\n        for doing so is that of `preponderance of\n        probabilities'. Therefore, if the accused is able to\n        raise a probable defence which creates doubts about\n        the existence of a legally enforceable debt or liability,\n        the prosecution can fail. As clarified in the citations,\n        the accused can rely on the materials submitted by the\n        complainant in order to raise such a defence and it is\n        conceivable that in some cases the accused may not\n        need to adduce evidence of his/her own."In view of the aforesaid discussion in preceding paras, it\n\nis clear that the appellant/accused had failed to rebut the presumption\n\nu/s. 118 and 139N.I. Act. The appellant/ accused had failed to raise any\n\nprobable defence. In view of the same, the contention of the appellant\n\nin this regard is not tenable.12.           It is well settled law that the Appellate Court will usuallyDigitally signedby VIJAYVIJAY   SHANKAR\n                                                   SHANKAR Date:2023.04.17\n                                                               17:23:34 +0700CA No. 28/2021                                     Page No.32/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\nnot interfere with the exercise of discretion by the Trial Court and the\n\nAppellate Court will interfere only if it is found that the discretion has\n\nbeen exercised arbitrarily, capriciously and perversely. The first\n\nAppellate Court is required to examine the case of the appellant with\n\nreference to the grounds urged in the appeal.It was held by Hon'ble Supreme Court of India in case\n\ntitled as "Rajan Vs. State of MP", {(1999) 6 SCC 29} that:-"Appellate Court's jurisdiction is co-extensive with\n        that of the trial Court in the matter of assessment,\n        appraisal and appreciation of the evidence and also\n        to determine the disputed issues.".13.           The complainant in his complaint and in his testimony\n\nhad categorically, elaborately and graphically described as to how\n\noffenceu/s 138N.I. Act had been committed by the appellant/accused.\n\nThe complainant/CW-1 had duly proved on record cheque bearing No.\n\n000096 dated 17/07/2014 Ex.CW1/A, returning memo dated\n\n19/07/2014 Ex.CW1/B, legal notice dated 01/08/2014 Ex.CW1/C,\n\npostal receipts Ex.CW1/D and delivery/ tracking report Ex.CW1/E.\n\n              The appellant/ accused had failed to raise any probable\n\ndefence. Appellant/accused had failed to rebut the presumptionu/s.\n\n118and139N.I.Act. On the other hand, the case of the complainant\n\nwas duly corroborated by his testimony and documentary evidence.Digitally signedby VIJAYVIJAY     SHANKAR\n                                                        SHANKAR   Date:\n                                                                  2023.04.17\n                                                                  17:23:45 +0700CA No. 28/2021                                    Page No.33/35Neeraj Sharma   Vs.   Gaurav Kajla14.           All the points and contentions of both the parties were\n\nduly dealt with by the Ld. Trial Court. Ld. Trial Court rightly held that\n\nthe complainant had successfully proved all essential ingredients ofSection 138N.I. Act. There is nothing on the record to show that the\n\nLd. Trial Court has exercised its discretion arbitrarily, capriciously and\n\nperversely. There is no illegality, impropriety and infirmity in the\n\nimpugned judgment and order on sentence passed by the Ld. Trial\n\nCourt.Sentence and fine/compensation amount awarded by the\n\nLd. Trial Court are not excessive and the same are reasonable and\n\njustified.15.           There is no dispute regarding the propositions laid down\n\nin the case laws relied upon by counsel for the appellant, however, the\n\nsame are not applicable to the facts and circumstances of the present\n\ncase.16.           Applying priori and posteriori reasonings and the\n\naforesaid case laws, this Court is held that there is no illegality,\n\nimpropriety and infirmity in the impugned judgment and order on\n\nsentence passed by the Ld. Trial Court. Impugned judgment datedDigitally signedby VIJAYVIJAY   SHANKAR\n                                                         SHANKAR Date:2023.04.17\n                                                                    17:25:23 +0700CA No. 28/2021                                     Page No.34/35Neeraj Sharma   Vs.   Gaurav Kajla\n\n\n\n26/06/2020 and order on sentence dated 05/08/2020 passed by the Ld.\n\nTrial Court are upheld. Accordingly, the present appeal of the\n\nappellant is dismissed. No order as to costs.Appellant be taken into custody to serve the sentence\n\nawarded by the Ld. Trial Court. Benefit ofSection 428Cr.P.C. be\n\ngiven to the appellant.Copy of this judgment be given dasti to the appellant\n\nfree of cost.Trial Court Record be sent back alongwith the copy of\n\nthis judgment. Appeal file be consigned to record room after due\n\ncompliance.Digitally signedby VIJAYSHANKARVIJAY     Date:\nAnnounced in the open Court                     SHANKAR   2023.04.17\n                                                          17:25:35\non 17/04/2023                                             +0700\n\n                                             (VIJAY SHANKAR)\n                                               ASJ-05 (Central)\n                                           Tis Hazari Courts, DelhiCA No. 28/2021                                      Page No.35/35