Delhi District Court
Sanjeev Sapra vs Kamal Gupta on 20 January, 2025
Sanjeev Sapra vs Kamal Gupta
IN THE COURT OF SH. ASHISH RASTOGI
ADDITIONAL SESSIONS JUDGE- 05
EAST, KARKARDOOMA COURTS, DELHI
CA No.52/2024
Sanjeev Sapra
S/o Sh. Darshan Lal Sapra
R/o B-4, 1st Floor, Street No.5,
Hazara Park, Shivpuri,
Krishna Nagar, Delhi-110051
.... Appellant
Vs.
Kamal Gupta
S/o Late Sh. B.L. Gupta
R/o A-63, Street No.8,
Rajgarh Colony, Delhi-110051
.... Respondent
Date of Institution : 02.04.2024
Arguments heard : 23.12.2024
Date of order : 20.01.2025
JUDGMENT
Factual Matrix
1. The case in brief of the Respondent/Complainant is that he
and the Appellant had friendly relations. In the month of
July 2013, accused showed urgent financial constraints and
approached the complainant and sought financial
assistance. Considering the same, the complainant provided
Digitally
signed by
Ashish
a friendly loan of Rs.4 lakhs to the accused and in this
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regard, the accused also issued a promissory note-cum-
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receipt in presence of witnesses. The accused promised to
repay the said loan amount within six months.
2. In discharge of said liability, the accused issued a cheque
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Sanjeev Sapra vs Kamal Gupta
No.685229 dated 10.06.2024 of Rs.4 lakhs drawn on
United Bank of India, Gandhi Nagar, Delhi. The same was
dishonoured vide return memo with remarks
“INSUFFICIENT FUND’. After receiving the said cheque
return memo, the complainant sent a legal demand notice
(Ex.CW1/4) dated 27.06.2024 to the accused vide
registered post advising him to pay the amount of the
cheque within 15 days of the receipt of the notice i.e. the
period prescribed under NI Act. As the accused did not pay
the amount within the said period from the date of service
of the notice, hence present criminal complaint
No.52087/2016 was filed.
3. The Pre-summoning evidence was closed and arguments on
summoning were heard on 24.07.2014 and the Accused was
summoned for the offence under Section 138 NI Act.
4. On 08.08.2019, the notice was framed against the Accused
wherein he pleaded not guilty and claimed trial. Accused
took defence that he had not given the cheque in question to
the complainant. The cheque bears his signature and pertain
to his account. Remaining particulars of the cheque are not
in his hand writing. Accused further stated that he did not
receive the legal notice. The accused also stated that he had
given blank signed cheque to one Dharmender Sachdeva
for the purpose of committee.
Digitally
signed by
Ashish
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5. Thereafter the matter was posted for Complainant’s
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Evidence. The Complainants’ Evidence was closed on
31.03.2023 and matter was fixed for Statement of the
Accused under Section 313 r/w Section 281 Cr.P.C. which
was recorded on 19.05.2023 wherein he took defence that
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Sanjeev Sapra vs Kamal Gupta
cheque was given as security cheque to Dharmender
Sachdeva and Harjeet Singh. It was misused by the
complainant in collusion with the complainant. He had no
transaction with the complainant. He also lodged FIR
against the complainant, Dharmender Sachdeva, Harjeet
Singh and others.
6. Accused did not lead defence evidence and defence
evidence was closed on 08.07.2023 and the matter was
posted for final arguments.
7. After hearing final arguments, the Appellant/Accused was
convicted for the charged offence vide judgment dated
11.01.2024. Vide Order on sentence dated 01.03.2024, the
Appellant/ Accused was sentenced to undergo Simple
Imprisonment for a period of six months and to pay a fine
of Rs.8,00,000/- within 30 days which was to be released as
compensation to complainant, in default of payment of
which, convict was directed to undergo Simple
Imprisonment for a period of four months. Against the said
impugned Judgment and order on sentence, the Appellant
has filed this instant Appeal.
8. Ld. counsel for appellant argued that the security cheques
were given to one Dharmender Sachdeva and said
Dharmender Sachdeva gave the blank signed cheque to the
Digitally
signed by
respondent with the fraudulent intention and the said
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cheque has been misued by the respondent/complainant.
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Ld. Counsel for appellant further argued that promissory
note Ex. CW1/1 is not genuine piece of instrument. Firstly,
the promissory note has been signed at four places and
secondly the witness namely one Jatin has not signed on theCA No.52/2024 3 of 22
Sanjeev Sapra vs Kamal Guptapromissory note. He further argued that there is no revenue
stamp on the promissory note. It is further submitted that
the signature of the appellant on the promissory note are
not genuine and the Ld. Trial Court has not considered the
same. It is further submitted that there are discrepancies in
the evidence of complainant as on the one hand
complainant stated that he had given friendly loan to
appellant/accused and on the other hand, he stated that it
was a loan at the rate of 12%. It is further submitted that the
ITR of the complainant does not have the name and
signature of any Chartered Accountant who has filed the
said ITR and the same is not a genuine piece of evidence
and hence cannot be considered. It is further submitted that
the appellant has deposed in his cross-examination that he
runs a sweets shop and has a genuine license for running
the sweets shop but despite cross-examination to that effect,
he has not produced the license and hence not proved his
source of income. It is further argued that the said cheques
have been misused as the cheque from sl. no.685221 to
685240 were given to Dharmender Sachdeva and Harjeet
Singh for the purpose of committee and the said cheques
have been misused by the complainant and an FIR
No.0264/2015 has been registered against Dharmender
Sachdeva and Harjeet Singh as well as complainant and is
Digitally
signed by
pending in PS Geeta Colony and same has been Marked as
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CW1/D1. On the basis of above said contentions, Ld.
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Counsel for appellant argues that above mentioned facts
have not been considered by the Ld. Trial Court and hence,
the appeal may be allowed. Reliance is also placed on the
the judgement reported as John K. Abraham vs Simon C.CA No.52/2024 4 of 22
Sanjeev Sapra vs Kamal GuptaAbraham and Another (2014) 2 SCC 236 and K.Subramani
vs K. Damodara Naidu (2015) SCC 99.
9. On the other hand, Ld. Counsel for the Respondent argues
that the judgment of the Ld. Trial Court is a very well
reasoned judgment where each and every aspect pertaining
to the case and all the evidence on record have been
considered in detail. He further argues that in the light of
evidences on record, there is no doubt that all the
requirements for the operation of the presumption under
Section 139 r/w Section 118 NI Act and the case of the
Respondent stood proved. The stand of the Appellant
cannot be said to be a probable defence by any stretch of
imagination which can result in rebuttal of the said
presumption and hence this appeal is liable to be dismissed.
Analysis:
Appeal against Conviction: –
10.Before moving on the findings, it is pertinent to discuss in
brief as to the nature of Jurisdiction which is to be
exercised by the High Court in Appeals under Section
374(2) CRPC. The Hon’ble Apex Court in ” Jogi v. State of
Madhya Pradesh; Criminal Appeal No 1350 of 2021 ” has
observed: –
“The High Court was dealing with a substantive appeal
Digitally under the provisions of Section 374 of the Code of
signed by
Ashish Criminal Procedure 1973 1. In the exercise of its appellate
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jurisdiction, the High Court was required to evaluate the
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evidence on the record independently and to arrive at its
own findings as regards the culpability or otherwise of the
accused on the basis of the evidentiary material.”
11.Therefore, the task of this Court in the course of deciding
the said appeal is to independently assess and appreciate the
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Sanjeev Sapra vs Kamal Gupta
evidence on record and arrive at its own finding along with
the reasons to agree/disagree with the findings of the Ld.
Trial Court.
12.Before moving further, it shall be pertinent to mention the
relevant provisions of NI Act as the same shall be pressed
into service for deciding the subject matter of this dispute.
Purpose and relevant provisions of NI Act:
13.The purpose of NI Act as rightly observed by the Ld. Trial
Court was to safeguard the sanctity of Negotiable
Instruments and to make sure that they do not become a
paper tiger and also to curb their widespread misuse. With
the gradual increase in the financial transactions between
the parties, the need was felt to enact a legal framework
wherein transactions could freely be concluded between the
parties and payments could be done with the help of
Negotiable Instruments. For the same, it was very
necessary that there should be a confidence in public at
large that a legal framework exists which can get the
Negotiable Instruments enforced. With this salutary
purpose in mind, the provisions of the NI Act mainly
Section 138 and 139 NI Act were enacted. The same hold
as under:-
138. Dishonour of cheque for insufficiency, etc., of
Digitally
signed by
funds in the account.–Where any cheque drawn by a
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person on an account maintained by him with a banker
16:52:54for payment of any amount of money to another person
+0530from out of that account for the discharge, in whole or
in part, of any debt or other liability, is returned by the
bank unpaid, either because of the amount of moneyCA No.52/2024 6 of 22
Sanjeev Sapra vs Kamal Guptastanding to the credit of that account is insufficient to
honour the cheque or that it exceeds the amount
arranged to be paid from that account by an agreement
made with that bank, such person shall be deemed to
have committed an offence and shall, without prejudice
to any other provision of this Act, be punished with
imprisonment for [a term which may be extended to two
years’], or with fine which may extend to twice the
amount of the cheque, or with both:
Provided that nothing contained in this section
shall apply unless–(a) the cheque has been
presented to the bank within a period of six
months from the date on which it is drawn or
within the period of its validity, whichever is
earlier;
(b) the payee or the holder in due course of the
cheque, as the case may be, makes a demand for
the payment of the said amount of money by
giving a notice; in writing, to the drawer of the
cheque,[within thirty days] of the receipt of
information by him from the bank regarding the
return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the
payment of the said amount of money to the
payee or, as the case may be, to the holder in due
course of the cheque, within fifteen days of the
receipt of the said notice.
139. Presumption in favour of holder. –It shall be
presumed, unless the contrary is proved, that the holder
of a cheque received the cheque of the nature referred to
Digitally
in section138 for the discharge, in whole or in part, of
signed by
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any debt or other liability.
14.In addition, Section 118 of NI Act engrafts an additional
presumption in favor of the holder of the Negotiable
Instrument and that is that it shall be presumed that everyCA No.52/2024 7 of 22
Sanjeev Sapra vs Kamal GuptaNegotiable Instrument was drawn for consideration.
Section 118(a) of NI Act holds as under:-
118. Presumptions as to negotiable instruments. —
Until the contrary is proved, the following
presumptions shall be made: —
(a) of consideration: –that every negotiable instrument was
made or drawn for consideration, and that every such
instrument, when it has been accepted, indorsed, negotiated
or transferred, was accepted, indorsed, negotiated or
transferred for consideration;
(b) as to date: –that every negotiable instrument bearing a
date was made or drawn on such date;
(c) as to time of acceptance: –that every accepted bill of
exchange was accepted within a reasonable time after its date
and before its maturity;
(d) as to time of transfer: –that every transfer of a
negotiable instrument was made before its maturity;
(e) as to order of endorsements: –that the endorsements
appearing upon a negotiable instrument were made in the
order in which they appear then on;
(f) as to stamp: — that a lost promissory note, bill of
exchange or cheque was duly stamped;
(g) that holder is a holder in due course: –that the holder
of a negotiable instrument is a holder in due course:
PROVIDED that, where the instrument has been obtained
from its lawful owner, or from any person in lawful custody
thereof, by means of an offence or fraud, or has been
obtained from the maker or acceptor thereof by means of an
offence or fraud, or for unlawful consideration, the burden of
proving that the holder is a holder in due course lies upon
him.
15.Effect of the presumption under Section 139 NI Act:- The
Digitally
signed by
combined effect of both these Sections when read in
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consonance with each other is that once the basic ingredients
16:52:55of Section 138 NI Act are satisfied, the presumption under
+0530Section 139 automatically kicks in. The said essential
ingredients are as follows:-
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Sanjeev Sapra vs Kamal Gupta
1. Issuance of a Cheque: The first requirement is the
issuance of a cheque by the drawer, which could be in
favor of the payee.
2. Presentation of the Cheque: The payee must
present the cheque to the bank within a period of three
months from the date of issue. It is essential to adhere
to this timeline, as a delayed presentation might
weaken the case.
3. Dishonoured Cheque: If the bank dishonours the
cheque due to insufficient funds or other specified
reasons, it is considered a dishonoured cheque.
4. Notice to the Drawer: The payee must serve a legal
notice to the drawer within 30 days of receiving the
information about the dishonoured cheque from the
bank. The notice should demand the payment of the
cheque amount within 15 days from the receipt of the
notice.
5. Failure to Make Payment: If the drawer fails to
make the payment within the stipulated 15-day
period, the payee can proceed with filing a complaint.
16.Once the said presumption kicks in, it is presumed that the
cheque was issued for or in discharge of some legally
enforceable liability. In “Bir Singh v. Mukesh Kumar ;
(2019) 4 SCC 197″, this Court held that presumption under
Section 139 of the Act is a presumption of law. The Court
held as under:-
“20. Section 139 introduces an exception to the
general rule as to the burden of proof and shifts the
onus on the accused. The presumption under Section
139 of the Negotiable Instruments Act is a
presumption of law, as distinguished from
presumption of facts. Presumptions are rules of
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signed by
evidence and do not conflict with the presumption of
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the case against the accused beyond reasonable doubt.
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The obligation on the prosecution may be discharged
with the help of presumptions of law and
presumptions of fact unless the accused adduces
evidence showing the reasonable possibility of the
non-existence of the presumed fact as held in Hiten P.
Dalal [Hiten P. Dalal v. Bratindranath Banerjee,CA No.52/2024 9 of 22
Sanjeev Sapra vs Kamal Gupta(2001) 6 SCC 16 : 2001 SCC (Cri) 960] .
17.The words used in the said Section are “shall be
presumed”. The same, hence, is a mandatory presumption
of law. Regarding the purport of the said expression, it has
been observed by the Hon’ble Supreme Court in Neeraj
Dutt Vs. State, SLP(Crl.) No. 6497/2020 as under: –
“………Courts are authorized to draw a particular
inference from a particular fact, unless and until the
truth of such inference is disproved by other facts.
The court can, under Section 4 of the Evidence Act,
raise a presumption for purposes of proof of a fact. It
is well settled that a presumption is not in itself
evidence but only makes a prima facie case for a party
for whose benefit it exists. As per English Law, there
are three categories of presumptions, namely, (i)
presumptions of fact or natural presumption; (ii)
presumption of law (rebuttable and irrebuttable); and
(iii) mixed presumptions i.e., “presumptions of mixed
law and fact” or “presumptions of fact recognized by
law”. The expression “may presume” and “shall
presume” in Section 4 of the Evidence Act are also
categories of presumptions. Factual presumptions or
discretionary presumptions come under the division
of “may presume” while legal presumptions or
compulsory presumptions come under the division of
“shall presume”.
“May presume” leaves it to the discretion of the court
to make the presumption according to the
circumstances of the case but “shall presume” leaves
no option with the court, and it is bound to presume
the fact as proved until evidence is given to disprove
it, for instance, the genuineness of a document
purporting to be the Gazette of India. The expression
“shall presume” is found in Sections 79, 80, 81, 83,
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85, 89 and 105 of the Evidence Act.”
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16:52:58 18.The accused at the time of framing of notice and thereafter
+0530in his statement U/s 313 Cr.P.C denied the receipt of the
legal notice. However, accused has not denied the contents
of the legal demand notice. It is noteworthy to mention hereCA No.52/2024 10 of 22
Sanjeev Sapra vs Kamal Guptathat the address mentioned on the legal notice and the
address on promissory note as well as court notice issued
by the Ld. Trial Court and bail bond furnished before the
Ld. Trial Court by the accused, is same. The evidence of
the accused that he did not receive the legal demand notice
is without any substance. It is admitted fact that he did not
make any payment within 15 days of the legal demand
notice. The Hon’ble Supreme Court in “C.C. Alavi Haji v.
Palapetty Muhammad, 2007(6) SCC 555″, held that the
true intent behind the service of legal demand notice is to
be seen as a precursor to launch of prosecution against the
Accused and that is providing ample opportunity to the
Accused to repay the cheque amount and avoid the legal
proceedings against him. The Service of summons upon the
Accused fulfills the said purpose and provides ample
opportunity to the Accused to pay the amount in dispute.
Any Accused who fails to pay the said amount within 15
days of service of summons cannot hide behind this
technical plea of non-service of legal demand notice, to
evade his liability. The reasoning as provided by the Ld.
Trial Court that the address that has been mentioned in the
legal notice and the address on accepted bills of the accused
are same, the mandatory statutory legal notice is deemed to
have been served on the accused in the present case, cannot
Digitally
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be faulted and hence no interference is warranted on the
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said finding as the same is based upon established
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principles of law occupying this field.
19.Further in view of the settled law even if the service of
legal notice has not been proved, the service of notice ofCA No.52/2024 11 of 22
Sanjeev Sapra vs Kamal Guptacomplaint also amounts to sufficient compliance of notice
u/s 138 NI Act and in case the accused failed to pay the
cheque amount despite service of notice of complaint, he is
guilty of offence u/s 138 NI Act. In this regard, this court is
supported by the recent case law reported as Balak Ram vs
Ashok Kumar Nagar, CRL. A. 897/2017. Relevant para of
the judgment reads as under:-
“5. Further, as held by the Supreme Court in the
decision reported as (2007) 6 SCC 555 C.C. Alavi Haji
vs. Palapetty Muhammed & Anr. the Supreme Court
reverting to Provisos (b) & (c) to Section 138 NI Act
held that the course open to the drawer where he claims
that he has not received the notice sent by post but
received copy of the complaint with the summons is
that he can within 15 days of the receipt of summons
make payment of the cheque amount and on that basis
submit to the Court that the complaint be rejected. On
service of summons in the complaint he cannot contend
that there was no proper service of notice.”
20.Hence, all the ingredients i.e. issuance of cheque, dishonor
of cheque, notice to drawer and failure to make payment
stand satisfied and therefore the presumption 139 and 118
of NI Act automatically becomes operative in this case i.e.
that the cheques were issued in discharge of a legally
enforceable debt.
21.Therefore, the combined implication of both Section 138
and 139 NI Act is that once the essential ingredients of
Section 138 are satisfied and the presumption under Section
Digitally 139 is pressed into service then the case against of the
signed by
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Complainant against the Respondent stands proved that the
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negotiable instrument was issued in discharge of a legally
enforceable debt and now it is upto him to rebut the
presumption drawn against him by leading evidence to the
Contrary. The burden which the Accused has to dischargeCA No.52/2024 12 of 22
Sanjeev Sapra vs Kamal Guptain rebutting the said presumption is “preponderance of
probabilities” while the Complainant has to prove his case
beyond reasonable doubt. Therefore, what has been
envisaged is that the Accused should raise a probable
defence which is an expression i.e. different from possible
defence. In “Kumar Exports v. Sharma Carpets; (2009) 2
SCC 513″, it was held that mere denial of existence of debt
will not serve any purpose but accused may adduce
evidence to rebut the presumption. This Court held as
under:-
“20. The accused in a trial under Section 138 of the Act has
two options. He can either show that consideration and debt
did not exist or that under the particular circumstances of the
case the non-existence of consideration and debt is so
probable that a prudent man ought to suppose that no
consideration and debt existed. To rebut the statutory
presumptions an accused is not expected to prove his
defence beyond reasonable doubt as is expected of the
complainant in a criminal trial. The accused may adduce
direct evidence to prove that the note in question was not
supported by consideration and that there was no debt or
liability to be discharged by him. However, the court need
not insist in every case that the accused should disprove the
non-existence of consideration and debt by leading direct
evidence because the existence of negative evidence is
neither possible nor contemplated. At the same time, it is
clear that bare denial of the passing of the consideration and
existence of debt, apparently would not serve the purpose of
the accused. Something which is probable has to be brought
on record for getting the burden of proof shifted to the
complainant. To disprove the presumptions, the accused
should bring on record such facts and circumstances, upon
consideration of which, the court may either believe that the
consideration and debt did not exist or their non-existence
was so probable that a prudent man would under the
Digitally
signed by circumstances of the case, act upon the plea that they did not
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note in question was not supported by consideration or that
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he had not incurred any debt or liability, the accused may
also rely upon circumstantial evidence and if the
circumstances so relied upon are compelling, the burden
may likewise shift again on to the complainant. The accused
may also rely upon presumptions of fact, for instance, those
mentioned in Section 114 of the Evidence Act to rebut theCA No.52/2024 13 of 22
Sanjeev Sapra vs Kamal Guptapresumptions arising under Sections 118 and 139 of the
Act.”
22.Therefore, in order to travel from the point of possible
defence to probable defence, the Accused has to have some
credible material on record so as to raise a doubt on the
version of the Complainant.
23.With the above factual and legal background in mind, the
task cut out for this court is to undertake and independent
analysis of evidence on record to determine that whether
the accused has successfully rebutted the said presumption
by demonstrating the inconsistency/untrustworthiness in
the testimony of the Prosecution witnesses or by
successfully proving his own defence by his defence
evidence.
24.The first leg of discussion is the independent analysis of
other evidence and relevant facts so as to come to a
conclusion whether the Respondent has infact produced
sufficient material before the consideration of this court to
prove his case beyond reasonable doubt and whether the
Appellant has able to successfully rebut the same.
25.The Appellant at the time of framing of notice stated in his
plea of defence that the cheques in question were issued as
security cheques to Dharmender Sachdeva and Harjeet
Singh. It is trite law that once the presumption under
Digitally
Section 139 r/w Section 118 NI Act kicks in then the case
signed by
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+0530
against the accused stands proved and from that point on it
is his responsibility to prove his defence on the touchstone
of preponderance of probabilities. Now, the ground that the
cheque in question was not issued towards satisfaction ofCA No.52/2024 14 of 22
Sanjeev Sapra vs Kamal Guptaany existing debt but merely as a security cheque which has
been misused by the complainant, is a fact that has been put
forth by the Appellant during the trial. In this connection,
Section 103 of the Indian Evidence Act is worth
mentioning which holds as under:
“103. Burden of proof as to particular fact. –The
burden of proof as to any particular fact lies on that
person who wishes the Court to believe in its existence,
unless it is provided by any law that the proof of that
fact shall lie on any particular person.”
26.Hence, the onus to prove this fact was upon the Appellant.
The first argument which has been advanced by the
appellant is that the signatures on the promissory note are
forged and fabricated. In relation to that, it is observed in
the notice U/s 251 Cr.P.C, the appellant has clearly
mentioned that cheque in question has his signature,
therefore, the signature on cheque in question is admitted.
The fact that the signatures on the promissory note are
forged and fabricated, is a fact which has been alleged by
the appellant and hence, ought to have been proved by him.
The same could be done by adducing any defence evidence
or handwriting expert but the same has not been done by
the appellant and no handwriting expert has been examined
in his defence evidence. Rather no defence evidence has
been led by the appellant. In any case, the Court U/s 73 of
Indian Evidence Act has power to compare the signature.
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signed by
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Section 73 of Indian Evidence Act reads as under:-
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16:52:59 73. Comparison of signature, writing or seal with others
+0530
admitted or proved.–In order to ascertain whether a
signature, writing, or seal is that of the person by whom
it purports to have been written or made, any signature,
writing, or seal admitted or proved to the satisfaction of
the Court to have been written or made by that person
may be compared with the one which is to be proved,CA No.52/2024 15 of 22
Sanjeev Sapra vs Kamal Guptaalthough that signature, writing, or seal has not been
produced or proved for any other purpose.
The Court may direct any person present in Court to
write any words or figures for the purpose of enabling
the Court to compare the words or figures so written
with any words or figures alleged to have been written
by such person.
27.The Ld. Trial Court has come to a conclusion that the
signature on promissory note, prima facie, appears
belonging to the accused/appellant. This Court agrees with
the findings of the Ld. Trial Court. In any case, the
promissory note is only corroborative piece of evidence and
only supplements the case of the respondent. The only bald
argument that the signatures on the promissory note are
forged and fabricated does not help the case of the
appellant in any way in rebutting the presumption raised
against him.
28.In the notice U/s 251 Cr.P.C framed against the accused, the
accused in his plea of defence stated that he had given
blank signed cheque to one Dharmender Sachdeva for the
purpose of committee and that he did not give any cheque
to the complainant. As per case of the
complainant/respondent, a friendly loan of Rs. 4 lakhs was
advanced to the appellant which arried interest @ 12% per
anum. The complainant/respondent stated in his evidence
that although he has not filed ITR for the last 4-5 years but
Digitally
signed by
he has filed ITR at the advancement of loan and the said
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Rastogi Date:
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loan is shown in the ITR i.e placed as annexure CW1/6
16:52:53colly. The ITR pertains to Assesssment Year 2014-2015,
+05302015-2016 and 2016-2017. The balancesheet clearly
mentions under heading loan and advances, loan advanced
to Sanjeev Sapra of Rs.4 lakhs. The complainant furtherCA No.52/2024 16 of 22
Sanjeev Sapra vs Kamal Guptastated in his evidence that the said friendly loan advanced
in front of Jatin Mehndiratta who is also a shopkeeper in
the market. He further submitted that he took signatures of
said Jatin as a witness on the promissory note which is
Ex.CW1/1 and the signatures of Jatin are at pont ‘X’. In
relation to the same, it is observed that the argument of the
appellant that the said witness to the promissory note i.e.
Jatin has not been examined as a witness, does not hold
much water as under these proceedings which are under NI
Act, once the respondent/complainant has proved the
essential ingredients of section 138 of NI Act, the
presumption U/s 139 of NI Act automatically kicks off and
there exists reverse onus on the appellant to prove his case.
Therefore, it is his responsibility to prove that said person
named Jatin did not sign the promissory note. The same
could have been done by calling said Jatin to the witness
box by the appellant by leading defence evidence but same
has not been done. The perusal of the promissory note itself
clearly shows the signature of Jatin on the promissory note
and it is the appellant who has disputed this fact that firstly
Jatin did not sign it as a witness and secondly he has not
been examined. As per section 103 of Indian Evidence Act,
the fact that signatures of Jatin are forged, is the fact which
isalleged by the appellant and hence it was his
Digitally
signed by
responsibility to prove the same.
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.20
16:52:56
29.The said onus which was on the appellant has clearly not
+0530
been discharged by the appellant. Secondly, the argument
of the appellant that the cheques of the same series from
685221 to 685240 were given to Dharmender Sachdeva and
CA No.52/2024 17 of 22
Sanjeev Sapra vs Kamal Gupta
Harjeet Singh and the cheque No.685229 i.e. the cheque in
question has been misused by the respondent/complainant,
is also a fact, the burden of proving the same was upon the
appellant. Same could have been done by calling a witness
who was privy to the said fact to the witness box or by
adducing some other evidence which could have been
proved that the said cheques were, in fact, given to
Dharmender Sachdeva for the purpose of committee. The
accused/appellant has not led any such evidence. He has, in
fact, not led any defence evidence. He has also not
produced copy of cheque book or any document related to
the committe which was being run by said Dharmender
Sachdeva etc. In other words, apart from bald allegations
and assertions, nothing material has been placed on record
so as to prove the fact that the security cheques which were
allegedly given to Dharmender Sachdeva, has been
misplaced by the respondent/complainant.
30.It is further noteworthy to mention that an argument has
been advanced by the appellant that the alleged loan cannot
be treated as friendly loan because of the fact that the
promissory note itself mentions interest @ 12% per anum.
In relation to that, it is observed that the appellant himself
relies on the promissory note and rate of interest mentions
therein so as to put forth that friendly loan was given and
Digitally
signed by
Ashish
on the other hand disputes the promissory note altogether. It
Ashish Rastogi
Rastogi Date:
2025.01.20
16:53:01
is further observed that there is no legal bar that interest can
+0530not be charged on the friendly loan.
31.The appellant has also raised an argument regarding the
lacking of financial capacity of the respondent/complainant
CA No.52/2024 18 of 22
Sanjeev Sapra vs Kamal Gupta
to advance loan. In this regard, it is observed that firstly the
financial capacity is to be disputed at the earliest possible
sttage i.e. in reply to the legal notice. Even at the time of
framing of notice U/s 251 Cr.P.C., the said plea of the
defence has not been taken. Secondly, there is no cross-
examination in this direction so as to prove that the
respondent lacking the financial capacity to advance loan.
Lastly, the respondent has produced his income tax returns
which shows that his gross total income during the
Assessement Year 2014-15, 2015-16 and 2016-17, was
about Rs.3.50 lakhs per year. Therefeore, considering all
these factors, the argument of the appellant that the
respondent/complainant was lacking financial capacity,
does not hold much water.
32.Further, it is observed that once the ingredients as
mentioned in section 138 of NI Act are satisfied and the
statutory presumption kicks in, the complainant need not
show that he had the financial capacity in the first instance.
Defence regarding the financial capacity of the complainant
has to be taken at the earliest possible opportunity i.e. when
the reply to the statutory notice sent. Thereafter based upon
the case to lead positive evidence by producing
independent materials i.e. examining his witness and
producing his documents to show lack of financial capacity
Digitally
signed by
Ashish
of the complainant to advance loan. It is held in the
Ashish Rastogi
Rastogi Date:
2025.01.20
16:52:59
judgement of Tedhi Singh vs Narayan Dass Mahant Crl. A.
+0530No.362 of 2022 :
33. “9. The Trial Court and the First Appellate Court
have noted that in the case under Section 138 of the N. I.
Act the complainant need not show in the first instance
that he had the capacity. The proceedings under Section
CA No.52/2024 19 of 22
Sanjeev Sapra vs Kamal Gupta
138 of the N. I. Act is not a civil suit. At the time, when
the complainant gives his evidence, unless a case is set up
in the reply notice to the statutory notice sent, that the
complainant did not have the wherewithal, it cannot be
expected of the complainant to initially lead evidence to
show that he had the financial capacity. To that extent the
Courts in our view were right in holding on those lines.
However, the accused has the right to demonstrate that the
complainant in a particular case did not have the capacity
and therefore, the case of the accused is acceptable which
he can do by producing independent materials, namely, by
examining his witnesses and producing documents. It is
also open to him to establish the very same aspect by
pointing to the materials produced by the complainant
himself. He can further, more importantly, achieve this
result through the cross examination of the witnesses of
the complainant. Ultimately, it becomes the duty of the
Courts to consider carefully and appreciate the totality of
the evidence and then come to a conclusion whether in the
given case, the accused has shown that the case of the
complainant is in peril for the reason that the accused has
established a probable defence.”
34.The penaltimate argument of the appellant is that the ITR
does not have name and signature of the Charterned
Accountant (CA). In relation to this, it is observed that it is
not necessry to file ITR through CA. The ITRs cannot be
held to be inadmissible only because the stamp of CA is not
present. In any case, the ITRs are computered generated
govt. Document against which a presumption exists with
relation to their legitimacy unless proved otherwise. Apart
from assertion that the ITRs filed by the respondent do not
bear any stamp or signature of CA, no evidence whatsoever
has ben produced by the appellant so as to prove that the
Digitally said ITRs are not correct and are forged and therefore, this
signed by
Ashish
Ashish Rastogi
Rastogi Date:
argument of the appellant is also rejected. The appellant
2025.01.20
16:52:55
+0530
further argued that the ITR did not mention the loan
advanced by the respondent to the appellant. Although the
same does not appear to be the case as it has already been
discussed above that loan of Sanjeev Sapra of Rs.4 lakhsCA No.52/2024 20 of 22
Sanjeev Sapra vs Kamal Guptahas already been reflected in the balance sheet. In any case,
non-mention of the loan in the ITR is not sufficient to rebut
the presumption U/s 139 of NI Act. It has been held by
Hon’ble High Court in Crl. L.P 567/2014 titled Lekh Raj
Sharma versus Yash Pal Gupta that the complaint u/s 138 of
N.I Act is maintainable even where the transaction is not
shown in the income tax return.
35.The last argument of the appellant is that the cheque was
given to one Dharmender Sachdeva and since the said
cheque was misused by the respondent/complainant, an FIR
No.0264/2015 i.e. placed as Ex.CW1/D1 was registered
against Dharmender Sachdeva and Harjeet Singh as well as
respondent in PS Geeta Colony. The perusal of the said FIR
bring to the fore the fact that the said FIR pertains to
Dharmender Sachdeva but a complaint case No.101/2015
was filed against the respondent by the appellant and the
said complaint was attached with the FIR No.0264/2015 PS
Geeta Colony as the directions were given that the said
complaint is to be attached with the case FIR No.0264/2015
when the chargesheet is filed. Therefore, the submission of
the appellant that the FIR was lodged against the
respondent appears to be misplaced. Be that as it may, the
lodging of FIR or filing of complaint case is not, in any
way, sufficient to rebut the presumption raised against the
Digitally
signed by
Ashish
appellant in the proceedings U/s 138 of NI Act.
Ashish Rastogi
Rastogi Date:
2025.01.20
16:52:52
+0530 36.In the light of above discussion and upon independent
appreciation of evidence in the instant matter, as has been
mandated while examining the Appeal against Conviction
U/s Section 374(3) CRPC, this Court is of the consideredCA No.52/2024 21 of 22
Sanjeev Sapra vs Kamal Guptaopinion that the judgment of the Ld. Trial Court is based
upon sound reasoning and analysis of all the material on
record. The reasoning of the Ld. Trial Court cannot be
faulted and no perversity can be found in the impugned
judgment so as to warrant interference in the same.
Accordingly present appeal stands dismissed.
37.TCR be sent back along with copy of this order.
38.Appeal files be consigned to the Record Room after due
compliance. Signed copy of this judgment be placed along
with both appeal case files.
Announced in the open Court
on 20.01.2025.
(Ashish Rastogi)
Additional Sessions Judge-05
East/Karkardooma Courts/Delhi
Digitally
signed by
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.20
16:53:00
+0530CA No.52/2024 22 of 22
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