TaxTMI 
TaxTMI 
2023 (8) TMI 1288
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....n CC No. 2799/2010 titled "Chetna Verma vs. Devender Damle". Further, vide order on sentence dated 25.03.2015, the petitioner was sentenced to undergo simple imprisonment of three months and to pay a combined fine of Rs. 40 lakhs, out of which Rs. 39 lakhs was to be paid as compensation to the complainant and remaining Rs. 1 lakh as fine, and in default of payment of same, to undergo further simple imprisonment for three months. 3. Briefly stated, the case of complainant was that she and the petitioner were known to each other for more than nine years and there were friendly relations between their families for more than twenty two years as on the date of filing of the complaint. It was alleged that in July 2006, the accused/petitioner had approached the complainant on pretext that he was going through a tough time financially and he had come up with a lucrative business proposal for the complainant and had convinced her to finance a project which would yield handsome profits to her, for which he had sought a loan of Rs. 14 lakhs from her. The complainant had accordingly agreed to advance a loan of Rs. 14 lakhs to the petitioner on payment of interest at the rate of 3% per month....
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....n 313 of Cr.P.C. whereby the petitioner denied all the allegations levelled by the complainant and stated that there were no financial transactions between them. He also denied filling in of the particulars i.e. the name of drawee, the amount and date on the cheque, and also denied that the cheques were issued in discharge of any legal liability. He claimed that the cheques were issued as security for a loan procured by the complainant in his name but admitted that the cheques in question were drawn on his bank account and bore his signatures. He also admitted having received the legal notice from the complainant. In the defence evidence, the petitioner also examined himself as DW-1 and contended that the cheques in question were issued somewhere between January to April 2010 as the complainant and her family members were in great financial difficulties and they had lost all financial credibility in the market, and he had issued the cheques to enable them to procure loans by showing his blank cheque as security and to show their financial soundness to the potential creditors. The petitioner also contended that the complainant did not have financial competence to give him any loan. ....
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.... "...Therefore, after a balancing of the aggravating and mitigating circumstances in the case, and in view of the larger mischief sought to be remedies as outlined above, I feel ends of justice will be met if the convict is sentenced to 3 months simple imprisonment and ordered to pay a combined fine of Rs. 40,00,000/- out of which Rs. 39,00,000/- shall be payable to the complainant as compensation u/s 357(1) of the Cr.P.C. Rest of the amount (i.e. Rs. 1,00,000/-) be deposited with the State as fine. In default of payment of fine, the convict shall undergo a further simple imprisonment for three months..." 8. Aggrieved by the decision of learned MM, the petitioner had preferred an appeal before the learned ASJ, who was pleased to dismiss the appeal, thereby upholding the judgment and order on sentence passed by the learned MM. The concluding portion of impugned judgment dated 26.05.2018 passed by learned ASJ reads as under: "32. For the foregoing reasons, I am of the view that impugned judgment dated 23.03.2015 does not suffer from any illegality which calls for interference. I accordingly uphold the impugned judgment dated 23.05.2015 vid....
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....rgued that no record of cash transaction of loan has been proved by the complainant and several income tax returns were not even available on record and the income tax officer who was examined had also stated that the complainant may not have filed her return for assessment year 2007-08. It is also stated that the complainant had admitted that she had filled up the blank cheques herself which were given by the petitioner to her for obtaining credibility in the market and for securing loans from her creditors namely Sh. Sanjay Sharma and Sh.BR Ahuja. It is stated that the complainant had failed to examine her mother-in-law to prove that she had obtained a loan of Rs. 6.35 lakhs from her mother-in-law which she had used to advance loan to the petitioner for the first time. It is also stated that she had failed to examine Sh. Jasveer Singh and Sh. Chiddha Singh who were the alleged purchasers of her jewellery and thus, she was unable to prove the factum of having advanced a second loan to the petitioner. In a nutshell, it is the case of petitioner that both the Courts below have not appreciated the evidence in the correct manner and there are several contradictions in the case set out....
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....Court is only required to assess the correctness, legality or propriety of the impugned judgment. 14. To put it succinctly, the petitioner contends that the Courts below have failed to appreciate the evidence correctly on the issues which are summed up as under: i. the complainant had admitted that she had filled the details on the blank cheques herself; ii. the cheques were given by the petitioner to the complainant so as to enable her to show these cheques to her creditors as security and obtain loans; iii. the complainant had failed to prove the factum of having advanced any loan to the petitioner as she did not furnish any specific details and particulars qua the same; iv. the complainant had no financial capacity to advance loans to the petitioner and the evidence adduced by her was insufficient to prove to the contrary; v. the evidence brought on record by complainant to prove grant of first loan after obtaining the same from her mother-in-law and grant of second loan after selling her jewellery was insufficient and inconsistent owing to several discrepancies, non-examination of relevant witnesses, etc; 15. Having perused the....
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....t the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative. 36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt." (Emphasis supplied) 17. Furthermore, as rightly held by the learned MM, when the signatures on the cheques had been admitted by the petitioner, the presumption under Section 118(a) and 139 of NI Act would arise and it would be presumed that the cheques in question had been issued by the petitioner towards some legally enforceable debt. However, such a presumption can be rebutted by an accused by raising a probable defence. The law on this preposition is....
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.... this regard with the police or any other department. It is also a matter of record that the complainant had presented the cheques for encashment not only once but twice, however, the petitioner had even then neither approached or contacted the complainant, nor he had given any reply to the legal notice sent by her despite having received the same. It is also clear from the records that the complainant in her cross-examination had denied that she had lost her credibility in the market and that she had requested the petitioner to stand as a security for her before her creditors Sh. Sanjay Sharma and Sh. B.R. Ahuja. On the other hand, the petitioner had made no efforts to examine the said persons in defence evidence, who as per his theory, were the creditors of the complainant and for whose assurance, the petitioner had handed over these cheques to the complainant. Further, the petitioner did not bring on record any material to establish even his own financial soundness and credibility as he had neither filed his bank statements nor his income tax returns before the Court. Thus, the aforesaid defence raised by the petitioner that the cheques were not issued toward a legally enforceab....
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....s. 28,00,000/- to the accused Mr. Devender Damle has been shown in the returns. As regards returns of the Assessment Year 2007-2008, a loan to of Rs. 14,00,000/- is shown to have been advanced to the accused. It would be apposite to remember that this corroborates the story of the complainant to the effect that the total loan of Rs. 28,00,000/- was given to the accused in two installments, firstly in July, 2006 and then in August, 2007. The Balance Sheet annexed to Assessment year 2007-2008 reflects loan of Rs. 6,35,000/- taken by the complainant from her mother, which could have been employed to give the loan to the accused in addition to chest reserves, cash in hand. As regards the first loan, in the returns of AY-2006-2007, The complainant is shown to have Rs. 6,50,000/- in home chest and Rs. 1,68,906/- as cash in hand. This probablises the financial capability of the complainant to have granted the loans. The giving of second loan of Rs. 14,00,000/- was demonstrated by the proceeds from the sale of jewellary. *** 6.4.4 Ld. Counsel for the Accused has argued with great vehemence that adverse inference need to be drawn against the complainant for having not proc....