Sarita Devi v. Sanjay Kumar Keshari

1. Criminal Revision Petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 („Cr.P.C.‟) has been preferred on behalf of the petitioner (accused in proceedings under Section 138 NI Act), for setting aside judgment dated 22.02.2024 passed by learned Additional Sessions Judge, South District, Saket Courts, New Delhi, in Criminal Appeal No. 196/2023, whereby the conviction of the petitioner in proceedings under Section 138 NI Act has been upheld.

2. In brief, a complaint under Section 138 NI Act was filed on behalf of respondent (complainant in proceedings under Section 138 NI Act) alleging that petitioner alongwith her husband approached to purchase grocery items for tiffin service business worth Rs. 78,368/- which were supplied from June 2020 till 13.08.2020. In order to discharge the partial liability, petitioner issued two impugned cheques dated 20.08.2020 and 14.08.2020 for a sum of Rs. 10,000/- each. The cheques were returned unpaid, with remarks “Funds Insufficient” on 09.10.2020. Since the amount remained unpaid despite issue of legal notice, the complaint was filed before learned MM under Section 138 NI Act.

3. Petitioner disputed the liability towards the aforesaid cheques and claimed that the same were handed over to respondent for starting a „tiffin service business‟ in partnership. The cheques were claimed to have been handed over as „security‟, since the petitioner did not have any ready funds to invest in the business.

4. Learned counsel for the petitioner reiterates the contentions raised before the learned Trial Court as well as Appellate Court and submits that the bills towards the liability were not produced by the respondent during course of evidence. He further submits that probable defence has been raised on behalf of the petitioner to dispel the case of respondent but the same has not been taken into consideration.

5. Admittedly, signatures on both the cheques issued by petitioner are admitted. As such, the burden is on the petitioner/accused to rebut the presumption qua the legal debt or liability. The defence evidence led on behalf of the petitioner before the learned Trial Court has been discarded, since there were material contradictions in the testimony of DW-1. It was observed that petitioner had stated before the learned Trial Court that the cheques were given to respondent to secure the amount invested by him for tiffin service business, however, during evidence, DW-1 deposed that cheques in question were handed over to respondent for payment towards tiffin service business. Petitioner also raised the defence that bills were not filed by respondent to prove the dues pending towards him but respondent in his complaint as well as during evidence, has specifically stated that he had supplied grocery items worth Rs. 78,368/- on credit till 13.08.2020, for which he had maintained a proper record book wherein signatures of Arihand, Akash and Amit are present on each and every receiving of the grocery items, but petitioner despite ample opportunities, deliberately failed to call the aforesaid records. Learned Trial Court was also of the opinion that merely because the respondent did not choose to file a suit for recovery of Rs. 78,368/-, the case of the respondent could not be disbelieved. It was further observed that the petitioner has simply disputed her liability without any concrete evidence on record to prove that cheques had been handed over for purpose of security.

6. In view of the admittance of signatures by the petitioner on the impugned cheques and since the statutory demand notice was duly served on petitioner prior to filing of complaint, the presumption under Section 118 and 139 of the NI Act stands raised against the petitioner and the burden shifts upon her to dislodge the presumption. It may also be noticed that the petitioner did not herself enter as a defence witness but her husband appeared as DW-1. Merely on the basis of a bald assertion that the cheques had been given as security, the burden has not been discharged by the petitioner and there remains a presumption that cheques were duly handed over against legal debt or liability.

7. This Court is of the considered view that both the learned Trial Court as well as learned Appellate Court have rightly dismissed the contentions raised on behalf of the petitioner. For aforesaid reasons, there is no infirmity in the impugned judgments. Revision Petition is accordingly dismissed being devoid of merits. Pending application, if any, also stand disposed of. Petitioner is accordingly directed to appear before the learned Trial Court for the purpose of compliance of order on the point of sentence. A copy of this order be forwarded to learned Trial Court for information.

ANOOP KUMAR MENDIRATTA, J JULY 30, 2024 p