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Supreme Court: PMLA accused exempt from S.45 Conditions when furnishing bonds as per summons

CASE TITLE – Tarsem Lal v. Directorate of Enforcement

CASE NUMBER – CRIMINAL APPEAL NO.2608 OF 2024

DATED ON – 16.05.2024

QUORUM – Justice Abay S. Oka & Justice Ujjal Bhuyan

 

FACTS OF THE CASE

 The Appellants have been denied the benefit of anticipatory bail by the impugned orders. The Hon’ble Supreme Court was dealing with cases of the accused who were not arrested after registration of the Enforcement Case Information Report (ECIR) till the Special Court took cognizance under the PMLA of an offense punishable under Section 4 of the PMLA.  The cognizance was taken on the complaints filed under Section 44 (1)(b). These are the cases where the Appellants did not appear before the Special Court after summons were served to them. The Special Court issued warrants for procuring their presence.   After the warrants were issued, the Appellants applied for anticipatory bail before the Special Court. The applications were rejected. Unsuccessful accused have preferred these appeals since the High Court has turned down their prayers. And the Hon’ble Supreme Court, by interim orders, had protected the Appellants from arrest.

 

LEGAL PROVISIONS

Section 19 of the Prevention of Money Laundering Act (PMLA), 2002, prescribes the procedure to be followed by the arrest authority, the Enforcement Directorate (ED) in money laundering cases.

Section 65 of the Prevention of Money Laundering Act (PMLA), 2002, prescribes that the normal rules for criminal procedure, laid out in the Code of Criminal Procedure (CrPC), apply to investigations, arrests, seizures, and other legal actions taken under the PMLA.

Section 44 of the Criminal Procedure Code (CrPC), 1973, prescribes the powers vested in the Magistrate to make an arrest, and following that, can then decide on bail as per CrPC provisions.

Section 88 of the Criminal Procedure Code (CrPC), 1973, it empowers the court to take a bond for appearance from someone who could be issued a summons or warrant for their presence in court or from someone who is already present in court.

 

CONTENTIONS BY THE PETITIONER

The learned senior counsel, appearing for the Appellants in Criminal Appeal at Special Leave Petition (Crl.) No.121 of 2024 and the learned counsel representing other appellants have made detailed submissions that the power to arrest vesting in the officers of the Directorate of Enforcement (for short, ‘the ED’) under Section 19 of the PMLA cannot be exercised after the Special Court takes cognizance of the offense punishable under Section 4 of the PMLA, and that ff an accused appears according to the summons issued by the Special Court, there is no reason to issue a warrant of arrest against him or to take him into custody. They further stated that there is nothing inconsistent between Section 88 of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) and the provisions of the PMLA. On a conjoint reading of Sections 4 and 5 of the CrPC with Section 65 of the PMLA, was of the view that it was apparent that all the provisions of the CrPC would apply to proceedings before the Special Court from the stage of filing a complaint under Section 44 (1)(b). Only those provisions of the CrPC that are inconsistent with the specific provisions of the PMLA will not apply. As there is no inconsistency between Section 88 of the CrPC and the provisions of the PMLA if, after service of summons, the accused offers to furnish bonds for appearance in terms of Section 88 of the CrPC, the Special Court should normally accept the bonds. After furnishing the bonds, if the accused fails to appear before the Special Court, recourse can always be taken by the Special Court to Section 89 by issuing a warrant for procuring the presence of the accused before the Special Court. And noted that once cognizance is taken based on a complaint, the Special Court cannot exercise the power of remand under Section 167 (2) of the CrPC.

CONTENTIONS BY THE RESPONDENT

The Respondent submitted that once an accused appears before the Special Court, he is deemed to be in it’s custody. Though an accused against whom an allegation of commission of an offense punishable under Section 4 of the PMLA is made can apply for the grant of anticipatory bail, such application shall also be governed by the conditions in Section 45 (1). They further contended that money laundering is an offence against the nation. Therefore, taking into consideration the gravity and severity of the offence under the   PMLA, mandatory compliance with the requirements of Section 45 (1) must always be ensured.

 

COURT ANALYSIS AND JUDGEMENT

As the punishment for an offence punishable under Section 4 of the PMLA is of imprisonment for more than three years, in view of clause (x) of Section 2 of the CrPC, the complaint will be treated as a warrant case. Under Section 204(1)(b), the Court can issue either a warrant or summons in a warrant case. Therefore, while taking cognizance, the Special Court has the discretion to issue either a summons or warrant. The Hon’ble Supreme Court also referred to on of it’s previous Judgement, Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors where it held that as a general rule, unless an accused is charged with an offence of heinous crime and it is feared that he is likely to tamper with or destroy the evidence or evade the process of law, the issue of summons is the rule. This Court held that in a complaint case, at the first instance, the Court should directly serve the summons along with the copy of the complaint. If service is avoided by the accused, initially, a bailable warrant should be issued. If that is not effective, a non­bailable warrant should be issued. The Hon’ble Supreme Court stated that it failed to understand the basis of the submission of the learned ASG that after an accused appears before a Special Court in compliance with the summons, he shall be deemed to be in custody. And noted the object of issuing a summons is to secure the accused’s presence before the Court.  It is not issued for taking an accused in custody. if a bond is not furnished under Section 88 by an accused and if the accused remains absent after that, the Court can always issue a warrant under Section 70 (1) of the CrPC for procuring the presence of the accused before the Court. In both contingencies, when the Court issues a warrant, it is only for securing the accused’s presence before the Court. When a warrant is issued in such a contingency, the accused don’t need to apply for bail. The Hon’ble Supreme Court stated that after cognizance is taken of the offence punishable under Section 4 of the PMLA based on a complaint under Section 44 (1)(b), the ED and its officers are powerless to exercise power under Section 19 to arrest a person shown as an accused in the complaint. And since the Appellants were not arrested by the ED until the complaint was filed, the appeals succeed, subject to some conditions The appellants shall appear before the concerned Special Court within one month from the date of the Judgement and shall file an undertaking before the Special Court that they shall regularly and punctually appear before the Special Court. And further stated that warrants issued against the Appellants shall be cancelled only after one month and held that the grant of the Anticipatory Bail is unnecessary.

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Judgement Reviewed by – Gnaneswarran Beemarao

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Delhi High Court Affirms Trustees’ Liability Under Section 138 NI Act: Notice to Trust Validly Served Through Trustees

CASE TITLE – HARPREET SAHNI & ANR. v. SHRICHAND HEMNANI & ORS.

CASE NUMBER – CRL.M.C. 6094/2022 & CRL.M.A. 23877/2022 + CRL.M.C. 6095/2022 & CRL.M.A. 23881/2022 + CRL.M.C. 6096/2022 & CRL.M.A. 23889/2022 + CRL.M.C. 6097/2022 & CRL.M.A. 23894/2022

DATED ON – 15.05.2024

QUORUM – Justice Navin Chawla

FACTS OF THE CASE

These petitions have been filed under Section 482 of the Code of Criminal Procedure, 1973 (in short, ‘Cr.P.C.’) challenging the Order dated 20.12.2019 passed by the learned Metropolitan Magistrate-02 (NI Act), Delhi (hereinafter referred to as the ‘Trial Court’) in Complaint Case No.5505/2019, titled Shrichand Hemnani v. Mother’s Pride Punjabi Bagh & Ors. (in CRL.M.C. 6094/2022); Complaint case No. 5503/2019 titled Puja Hemnani v. Mother’s Pride Punjabi Bagh & Ors. (in CRL.M.C. 6095/2022); Complaint case No. 5504/2019 titled Asha Hemnani v. Mother’s Pride Punjabi Bagh & Ors. (in CRL.M.C. 6096/2022) and Complaint case No. 5501/2019 titled Vinod Hemnani v. Mother’s Pride Punjabi Bagh & Ors. (in CRL.M.C. 6097/2022) (hereinafter collectively referred to as the ‘Complaint Cases’), filed by the Respondents herein, under Section 138 of the Negotiable Instruments Act, 1881 (in short, ‘NI Act’). The above complaint cases have been originally filed by the Respondents herein, making 10 accused including Presidium Eduvision Trust, through its Trustees. In the Complaints, it is averred that somewhere in December, 2014, the respective respondents/complainants had contacted either the accused no.3, that is, Ms.Sudha Gupta, Chairman of Mother’s Pride Punjabi Bagh and Presidium Eduvision Trust or/and the accused no.2, that is, Presidium Eduvision Trust, through its trustees, for admission of the child in the school of Mother’s Pride Educational Institute Pvt. Ltd.. It was alleged that the accused nos.3 to 10 came in contact with the respondents and the family members, and represented and assured them about their position, inter alia, in the accused no.2, that is, Presidium Eduvision Trust, and also claimed about their relationship with the Mother’s Pride Educational Institute Pvt. Ltd.. It is alleged that based on their representation, the Respondents have allegedly extended loans to the accused, in the joint name of accused no.1-Mother’s Pride Punjabi Bagh and the accused no.2-Presidium Eduvision Trust. It is alleged that the accused were to pay interest at the rate of 19.5% per annum on the loan amount for the period of the loan. It is alleged that till the month of June, 2018, accused nos.1 to 10 paid interest on the said loan, however, thereafter they defaulted in payment of interest. It is claimed that on 01.12.2018, when the Respondents deposited the cheques issued by the accused nos.1 to 10 for repayment of the loan, the same were dishonoured with the remark „Funds Insufficient‟. It is averred that the Respondents thereafter issued respective legal notices dated 28.01.2019 to the accused nos.1 to 10 to repay the cheques amount, however, the same was not paid. The Respondents in the original complaints also pleaded and made similar allegations.

 

LEGAL PROVISIONS

Section 319 of the Criminal Procedure Code, 1973, deals with powers prescribes to the court to take action against someone who wasn’t originally named as an accused in the chargesheet.

Section 482 of the Criminal Procedure Code, 1973, deals with the Inherent Powers prescribes to the High Courts, which states the High Court has by its very nature, independent of any specific provision in the CrPC.

Section 138 of the Negotiable Instruments Act, 1881, deals with the situation such as when a cheque issued by someone (drawer) bounces because there aren’t enough funds in their account to cover the amount.

Section 141 of the Negotiable Instruments Act, 1881, deals with offences by companies related to negotiable instruments, most commonly cheques, where it assigns liability for cheque dishonorment offences by companies to specific individuals within the company.

Section 142 of the Negotiable Instruments Act, 1881, deals with how courts handle complaints regarding bounced cheques, which are covered under Section 138 of the Act.

 

CONTENTIONS BY THE PETITIONER

The Learned Counsel for the Petitioners argued that for maintainability of a complaint under Section 138 of the NI Act read with Section 142 of the NI Act, service of notice under Proviso (b) to Section 138 of the NI Act on the accused is mandatory. He also submitted that in the Complaint Cases, admittedly, the alleged demand notice dated 28.01.2019 was not addressed to the Petitioners in their individual capacity. He argued that, therefore, the complaints against the petitioners are not maintainable and the petitioners cannot be summoned in the same. The Learned Counsel further stated that merely by amending the complaints and now, in the relevant paragraphs, making averments against inter alia the Petitioners, and by merely changing the number of the accused, the Respondents cannot be said to have satisfied the requirements of Section 141 of the NI Act. He submits that, therefore, even otherwise the Complaint Cases, as against the Petitioners, are liable to be dismissed.

CONTENTIONS BY THE RESPONDENTS

The Learned Counsel for the Respondents submitted that the Trust (the accused no.2 in the Complaint Cases) had been issued the legal/demand notice dated 28.01.2019, to be served through its Trustees. The Respondents were not aware of the Trustees of the said Trust till the deposition of the official of the Axis Bank. He submitted that though the Respondents had dealt with the Petitioners, they were not aware of their status as Trustees of the accused no. 2. He also argued that the notice addressed to the Trust through its Trustees is sufficient notice to the Trustees themselves in their individual capacity as well.

The Learned Counsel argued that once it was discovered that the Petitioners are the Trustees of the accused no.2 Trust and are also alleged to be involved in the alleged transactions with the Respondents, they are liable to be proceeded against, in terms of Section 141 of the NI Act. He stated that the purpose of Section 319 of the Cr. P.C. is to address such a situation.

COURT ANALYSIS AND JUDGEMENT

The Hon’ble High Court viewed that Proviso (b) to Section 138 of the NI Act read with Section 142 of the NI Act shows that for the maintainability of a complaint for an offence under Section 138 of the NI Act, the payee or the holder in due course of the cheque, as the case may be, should make a demand for the payment of the said amount of money by giving a notice in writing ‘to the drawer of the cheque’ within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. The notice, therefore, is to be given ‘to the drawer of the cheque’. Section 7 of the NI Act defines the term ‘drawer’ as the maker of the bill of exchange or cheque. And in the present cases, the cheques are drawn by the accused no.2 Trust. It is, therefore, the ‘drawer of the cheques’. The notice has, admittedly, been issued to the ‘drawer’, that is, the accused no.2- Trust. The same has been addressed to be served on the drawer/Trust through its Trustees. Presently, it is not disputed by the petitioners that they are the Trustees of the accused No.2-Trust. And also noticed that Section 141 of the NI Act states that for the purpose of Section 141 of the NI Act, the term ‘company’ means any body corporate and includes a firm or other association of individuals. It is not disputed by the petitioners that a Trust will be covered by the above definition of the term ‘company’ and, therefore, the Trustees would be persons who would be responsible to the Trust for the conduct of its business and be in-charge of its business and, therefore, deemed to be guilty of the offence under Section 138 of the NI Act. The Notice having been served on the Trust through its Trustees, all the Trustees are deemed to have been duly served with the legal/demand notices, thereby meeting the requirement of Proviso (b) to Section 138 of the NI Act. And as far as the plea of the Learned Counsel for the Petitioners that the Respondent has merely changed the number of the accused in the complaints and there is a lack of necessary pleadings in the complaint cases in this regard, for which the Court found no merit in the same.

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Judgement Reviewed by – Gnaneswarran Beemarao

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Supreme Court Clears Accused of Bigamy Charges Citing Lack of Sufficient Evidence

Case Title – S. Nitheen & Ors. Vs. State of Kerela & Anr. 2024 INSC 420

Case Number – CRL. Appeal of 2024 Arising out of SLP (CRL.) No. 8529 of 2019

Dated on – 15th May, 2024

Quorum – Justice Sandeep Mehta

FACTS OF THE CASE
In the case of S. Nitheen & Ors. Vs. State of Kerela & Anr. 2024 INSC 420, the Appellant, herein Accused No.1, Ms. Lumina, was the legally wedded wife of the Respondent No.2, Mr. Reynar Lopez, both married as per the customs of the Christianity religion on the 16th of April, 2007. On the 13th of August, 2010, the Accused No.1 allegedly entered a second marriage with Saneesh, the Accused No.2, under the Special Marriage Act, 1954. The  other Appellants, herein Accused No.3 (Flory Lopez, Mother), Accused No.4 (Vimal Jacob, Brother), Accused No.5 (S. Nitheen, Friend and witness to marriage), Accused No.6 (P.R. Sreejith, Friend and witness to marriage), Accused No.7 (H. Gireesh, Friend and witness to marriage) are alleged to have had a common intention to commit the offence of bigamy by aiding and abetting the second marriage of the Accused No.1 and the Accused No. 2. On the 28th of May, 2018, the Respondent No. 2 instituted a complaint against the Accused persons under Section 494 of the Indian Penal Code, 1860 to which the Judicial Magistrate First Class, Attingal evaluated the evidences and directed the framing of the charges. Being aggrieved by this, the Appellants instituted a Criminal Revision Petition before the Sessions Judge, Thiruvananthapuram, which was duly dismissed on the 26th of October, 2018. The Appellants further instituted a Criminal Miscellaneous Petition No. 8108/2018 in the High Court of Kerela, which was also duly rejected on the 3rd of July, 2019. Then a Special Leave Petition was instituted by the Appellant in the Supreme Court of India, challenging the order of the High Court and the subsequent proceedings.

ISSUES
The main issue of the case whirled around whether the order of framing charges under the Section 494 of the Indian Penal Code, 1860 against the Appellants is sustainable lawfully?
Whether there is sufficient evidence to prove the Common Intention under Section 34 of the Indian Penal Code, 1860?
Whether the Accused No. 3,4, 5, 6 and 7 had prior knowledge of the First Marriage of the Accused No. 1 and the Accused No. 2 and acted with common intention?
Whether the Prosecution Under Section 494 of the Indian Penal Code, 1860 against the Appellants is justified?
Whether the dismissal of the Criminal Miscellaneous Petition and the Revision Petition was correct?

LEGAL PROVISIONS
Section 34 of the Indian Penal Code, 1860 prescribes the Acts done by several persons in furtherance of common intentions
Section 109 of the Indian Penal Code, 1860 prescribes the Punishment of an abetment if the act abetted is committed in consequences and when no express provision is made for its punishment
Section 494 of the Indian Penal Code, 1860 prescribes the Punishment for Marrying again during life-time of husband or wife
Section 216 of the Code of Criminal Procedure, 1973 prescribes the Power of the court to alter charges
Section 244 of the Code of Criminal Procedure, 1973 prescribes the Evidence for prosecution

CONTENTIONS OF THE APPELLANT
The Appellant, through their counsel, in the said case contented that the essential ingredients required to establish an offence under Section 494 of the Indian Penal Code, 1860, which pertains to the bigamy, are not present in the case set up by the Respondent.
Moreover, there is no evidence to show that the Appellants possessed common intention to commit the offence of bigamy, especially, the prosecution has a failure on its part demonstrate any overt act or omission on the part of the Appellants that would indicate their involvement in the alleged bigamous marriage.
The ruling in the Gopal Lal Vs. State of Rajasthan was cited and the Appellants asserted that only the spouse involved in the second marriage can be charged under the Section 494 of the Indian Penal Code,1860 and that the current charges against the Appellant for having a common intention to commit the bigamy do not stand on solid legal grounds and that including them in the charged under Section 494 of the Indian Penal Code, 1860 without sufficient evidence amounts to a gross abuse of the legal process and causes undue harassment.
The Appellants cited that there is no evidence to suggest that the Accused No. 3 and 4 were present at the time of the marriage and that there is no indication that the Accused No. 5,6 and 7 had knowledge of the Accused No.1’s previous marriage.

CONTENTIONS OF THE RESPONDENT
The Respondent, through their counsel, in the said case contented that the Accused No. 3 and 4 being the close blood relatives and the Accused No. 5,6 and 7 being the friends as well as the witness to the second marriage of the Accused No.1, were aware of her first marriage with the Respondent No.2, but failed to prevent the second marriage and that this omission indicates their complicity and common intention in committing the offence of bigamy, thereby stating them liable for the prosecution under Section 494 of the Indian Penal Code, 1860 r/w the Section 34 of the Indian Penal Code, 1860.
It was asserted that the complaint and the pre-charge evidence sufficiently demonstrated the collusion and common intention of the Appellant in the bigamous marriage. Thus, the prosecution against the Appellants is justifiable and should be proceeded with.
The Respondents, further urged that the contentions made by the Appellants were unfounded and that the orders of the lower courts were correct in rejecting the petition to quash the proceedings and that the need for a full trial to meticulously examining the collusion of the Appellants in the alleged offence.

COURT ANALYSIS AND JUDGMENT
The court in the case of S. Nitheen & Ors. Vs. State of Kerela & Anr. 2024 INSC 420, scrupulously analysed the contentions of both the parties, along with the evidence presented in the case. The court outlined the legal framework pertinent to the case, emphasizing the elements required to establish an offence under the Section 494 of the Indian Penal Code, 1860 dealing with the offence of bigamy. The court concluded that there was insufficient evidence to establish the collusion of the Appellants in the bigamous marriage or their common intention to commit the offence of bigamy. The court highlighted the deficiencies in the charges framed against the Appellants and the lack of evidences supporting their prosecution under Section 494 of the Indian Penal Code, 1860. The court determined that allowing the proceedings against the Appellants to continue would amount to gross illegality and an abuse of the process of the court. The court, consequently, quashed the orders passed by the High Court and set aside all the proceedings against the Appellant in the Criminal Case No. 791/2013. However, it directed that the trial of the Accused No. 1 and 2 would continue as per the charges against them. The court made no orders as to the costs and disposal of any pending applications in the case.  

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Judgement Reviewed by – Sruti Sikha Maharana

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Delhi High Court Upholds Dishonoured Cheque Conviction : Cited Lack of Merit in the Contentions of the Appellant

Case Title – Rajesh Kumar Jain Vs. J.C. Trading

Case Number – CRL. REV. P. 222/2024

Dated on – 14th May, 2024

Quorum – Justice Anoop Kumar Mendiratta

FACTS OF THE CASE
In the case of Rajesh Kumar Jain Vs. J.C. Trading, the Respondent J.C. Trading supplied “paper and board” to Rajesh Kumar, the Appellant in the case, via a bill dated 12th of August, 2014 for Rs. 5,26,728/-. The Appellant issued a cheque dated 9th of September, 2014 for Rs. 5,26,785/- to J.C. Trading in discharge of the liability for the goods supplied. The same cheque was dishonoured upon the presentation due to the “insufficient funds” as indicated by the bank return memo dated 10th of September, 2014. The Respondent, sent a legal notice dated 7th of October, 2014 to the Appellant in the case, demanding the payment. Despite the service of the notice, the Appellant failed to make the payment. Due to the non-payment, the Respondent instituted a complaint under Section 138 of the Negotiable Instruments Act, 1881, dealing with the dishonour of the cheques for the insufficiency of funds or if it exceeds the amount arranged to be paid from that account. On dated 8th of July, 2022, Rajesh Kumar Jain, the Appellant in the case was convicted and further on the 23rd of July, 2022, the Appellant was sentenced to four months of simple imprisonment and a fine of Rs. 8,50,000/-. In default of payment of the fine, he was to undergo an additional two months of simple imprisonment. The entire amount was directed to be paid to the Respondent.

ISSUES
The main issue of the case whirled around whether the cheque dated 9th of September,2014 was issued by the Appellant in discharge of a legally enforceable debt or liability towards the Respondent?

Whether the goods supplied by the Respondent to the Appellant were defective and whether they were returned by the Appellant, thus nullifying any liability under the cheque?
Whether the legal notice dated 7th of August, 2014, sent by the Respondent to the Appellant demanding for the payment, was duly served and whether the non-receipt of the legal notice could be valid reason for the Appellant?
Whether the presumption under Section 139 of the Negotiable Instruments Act, 1881, that the cheque was issued for the discharge of any debt or liability, was effectively rebutted by the Appellant?
Whether the Trial Court and the Appellate Court rightfully acknowledged the evidences and applied the legal principles in convicting the Appellant and upholding the sentence?
Whether the ledger produced by the Respondent, which was maintained in the electronic form, could be relied upon to prove the supply of goods and the existence of the liability?
Whether the contention of the Appellant regarding the cheque being issued as an advance payment and did not discharge of an existing liability holds merit under the circumstances of the case?
Whether there was any error concerning the Procedure or Jurisdiction in the findings and conclusions of the Trial Court and the Appellate Court that would warrant the intervention by the High Court in its revisional jurisdiction?

LEGAL PROVISIONS
Section 138 of the Negotiable Instruments Act, 1881 prescribes the Dishonour of Cheque for insufficiency, etc., of funds in the account

Section 139 of the Negotiable Instruments Act, 1881 prescribes the Presumption in favour of holder
Section 118(a) the Negotiable Instruments Act, 1881 prescribes the Presumption as to negotiable instruments of consideration
Section 251 of the Criminal Procedure Code, 1973 prescribes the Substance of accusation to be stated
Section 313 of the Criminal Procedure Code, 1973 prescribes the Power to examine the accused
Section 397 of the Criminal Procedure Code, 1973 prescribes the Calling for records to exercise powers to revision
Section 401 of the Criminal Procedure Code, 1973 prescribes the Power of High Court for revision
Section 65 of the Indian Evidence Act, 1872 prescribes the Cases in which secondary evidence relating to documents may be given
Section 27 of the General Clauses Act, 1897 prescribes the Meaning of Service by Post

CONTENTIONS OF THE APPELLANT
The Appellant, through their counsel, in the said case contented that the cheque was not issued in discharge of a legally enforceable debt or liability and that the goods supplied by the Respondent turned out to be defective and were returned, thus nullifying any liability.

It was asserted that the material supplied by the Respondent was defective and was returned through a goods return Challan dated 8th of September, 2014 and that there was no outstanding liability necessitating the issuance of the cheque.
Further it was contented that the Appellant acknowledged the cheque bearing his signature but contented that the particulars were filled in by the clerical staff of the firm of the Respondent and that the Appellant did not authorize the same.
The Appellant, asserted that they did not receive the legal notice dated 7th of October, 2014 sent by the Respondent, challenging the presumption of the due service of notice under Section 27 of the General Clauses Act, 1897 and that the presumption under the Section 139 of the Negotiable Instruments Act, 1881, was effectively rebutted by the presentation of a probable defence and that there was no outstanding debt as contented through relying on the testimonies and documentary evidences, inclusive of the goods return challan and the bank letter.
Moreover it was contented that the Respondent failed to furnish adequate the evidences to prove that the goods were not defective or that they were not returned and that was failure to examine the transporter, Mr. Kalim, who allegedly handled the return of goods.
Further the Appellants questioned the reliability of the ledger produced by the Respondent, asserting that it was maintained in the electronic form and not substantiated by other documentary evidences or corroborating testimony and that it was open to him to rely on the evidence led by the complainant to raise a probable defense and that he was not required to prove his defense beyond a reasonable doubt and that the burden or proof for rebutting the presumption under Section 139 of the Negotiable Instruments Act, 1881 was on the preponderance of probabilities.
The Appellants, through their counsel, in the said case relied on various precedents inclusive of the M/s. Indus Airways Pvt. Ltd. & Ors. Vs. M/s. Magnum Aviation Pvt. Ltd. & Anr. To contend that a cheque issued as an advance payment for goods not ultimately supplied or defective does not constitute a legally enforceable debt.

CONTENTIONS OF THE RESPONDENT
The Respondent, through their counsel, in the said case contented that the cheque dated 9th of September, 2014 was issued by the Appellant in discharge of a legally enforceable debt for the supply of goods (paper and board) as per the bill dated 12th August, 2014.

Further it was contented that the goods were duly supplied to and accepted by the Appellant without any immediate complaint about their quality or any defects.
Thus, on the presumption under Section 139 of the Negotiable Instruments Act, 1881, which mandates that the cheque was issued for the discharge of a debt or liability unless proven otherwise by the accused.
It was asserted by the Respondent that there were no credible evidences to prove that the goods were returned and that the goods return challan produced by the appellant was not substantiated by examining the transporter, Mr. Kalim, or any other corroborative evidence and that the legal notice dated 7th of October, was duly sent to the address of the Appellant and service could be presumed under Section 27 of the General Clauses Act, 1897 and that the claim of the Appellant was insufficient to rebut this presumption.
Moreover, it was contended that if the goods were indeed defective and returned, the Appellant should have taken steps to stop the payment of the cheque and that the failure to do so and the subsequent dishonour of the cheque for ‘insufficient funds’ indicated that the debt was acknowledged and that the cheque was issued in good faith.
The Respondent defended the reliability of their ledger, which was maintained in the electronic form, as per standard business practices and that the ledger corroborated the transaction and the outstanding liability and that the inconsistencies in the defense of the Appellant, inclusive of the claim that only ‘board’ was supplied instead of ‘paper and board’ and that in VAT coding, ‘paper and board’ are categorized under one code, and the bill reflected this coding practice.
The Respondent, through their counsel, in the said case contented that the Appellant failed to rebut the presumption under Section 139 of the Negotiable Instruments Act, 1881 and that the defense of the Appellant was not substantiated by credible evidences, and his failure to act prudently undermined his claims.

COURT ANALYSIS AND JUDGMENT
The court in the case of Rajesh Kumar Jain Vs. J.C. Trading, reaffirmed that under Section 139 of the Negotiable Instruments Act, 1881, once the execution cheque is admitted, there is a statutory presumption that the cheque was issued for the discharge of a debt or other liability and that this presumption is rebuttable, and the burden of proof lies on the accused to present a probable defense to rebut this presumption. The court observed that the Appellant failed to provide the sufficient evidence to rebut the presumption that the cheque was issued for a legally enforceable debt and that the defense of the Appellant that the goods were supplied were defective and returned was not supported by any credible evidences, especially, the Appellant did not present the transporter who allegedly returned the goods as a witness, nor did the Appellant provide any documentary evidence of the return. The court stated that the cheque issued by the Appellant was dishonoured due to insufficient balance and that the Appellant did not stop the payment of the cheque, which he could have done if the goods were really defective and returned and that the Appellant, additionally, did not respond to the legal notice sent by the Respondent. The court in this case noted that the ‘goods return challan’ presented by the Appellant lacked verification, and that the transporter involved in this process was not examined in the court. The court, thus, dismissed the criminal revision petition instituted by the Appellant as the court did not find any merits in the contentions of the Appellant and upheld the concurrent findings of the Trial Court and the Appellate Court. The court, in this case, upheld the conviction of the Appellant under Section 138 of the Negotiable Instruments Act, 1881 and the Appellant was directed to undergo the sentence imposed by the Trial Court, inclusive of four months of simple imprisonment, two additional month of simple imprisonment and a fine of Rs. 8,50,000. The court, in this case, directed that a copy of the order be forwarded to the Trial Court and the Superintendent of Jail for information and compliance with the order on the sentence as passed by the Trial Court.

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Judgement Reviewed by – Sruti Sikha Maharana

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The Delhi High Court Upholds Victim’s Testimony Quoting it as “Ring of Truth” in Sexual Assault Case: Cited Reason as Lack of Evidence to Rebut the Statutory Presumptions

Case Title – Miss P & Ors. Vs. State of NCT Delhi & Anr.

Case Number – CRL. A. 459/2020

Dated on – 14th May, 2024

Quorum – Justice Suresh Kumar Kait and Justice Manoj Jain

FACTS OF THE CASE
In the case of Miss P & Ors. Vs. State of NCT Delhi & Anr., the Accused (the Respondent herein) and his wife (PW-3) worked as a security guard. They had a daughter (victim herein) and a son (PW-4). The victim reported in the police station concerning her father repeatedly assaulting her sexually for quite some time. The victim claimed that one day, when the accused was jobless, he did not allow her to go to school. Since her mother worked outside and her brother was away for school, during the noon hour, when she was alone at home with him. The accused made her sleep alongside him. The accused then touched her private parts and when she resisted, he rebuked her. Further, the accused sexually assaulted the victim and the victim divulged about the incident to PW-3. When PW-3 confronted the accused regarding the alleged incident, the accused scolded the PW-3 as well as the victim. The victim unveiled that she has been getting assaulted sexually for the last two years and the accused assaulted her lastly on the 4th of January, 2013. The victim was sent for medical examination and documents concerning her age was collected and the statements of the victim and PW-4 was recorder under Section 164 of the Code of Criminal Procedure, 1973. The Accused was, thus, arrested based on the FIR lodged by the victim, chargesheet was instituted and the accused was sent for trial. The accused was duly charged for the offences under Section 6 of the Protection of Children from Sexual Offences Act, 2012, Section 506 of the Indian Penal Code, 1860 and the Section 323 of the Indian Penal Code, 1860. The accused claimed the trial pleading not guilty under Section 313 of the Code of Criminal procedure, 1973. The Learned Trial Court while acquitting the Accused, held that the story of the prosecution did not inspire confidence and was not credible.

ISSUES
The main issue of the case whirled around whether the delay in reporting the sexual assault to the authorities is considered fatal to the case of the prosecution, given the explanation of the threats by the Accused to the victim?

Whether the sole testimony of the victim, if found credible, cogent, and unambiguous, is sufficient to convict the Respondent without the need for additional corroboration?
Whether the testimonies of the Victim, PW-3 and PW-4 are consistent and corroborate each other sufficiently, despite any minor discrepancies or contradictions?
Whether minor discrepancies or contradictions identified by the Trial Court in the testimonies are material enough to render the case of the prosecution unbelievable?
Whether the accusations were fabricated due to the matrimonial discord, with the victim being tutored by her mother to falsely implicate the Respondent?
Whether the fact of the victim being a minor at the time of the alleged assault impacts the credibility and handling of her testimony?

LEGAL PROVISIONS
Section 164 of the Code of Criminal Procedure, 1973 prescribes the Recording of confessions and statements

Section 313 of the Code of Criminal Procedure, 1973 prescribes the Power to examine the accused
Section 315 of the Code of Criminal Procedure, 1973 prescribes that the Accused person to be competent witness
Section 5 of the Protection of Children from Sexual Offences Act, 2012 prescribes the Meaning Aggravated Penetrative Sexual Offences
Section 6 of the Protection of Children from Sexual Offences Act, 2012 prescribes the Punishment Aggravated Penetrative Sexual Offences
Section 29 of the Protection of Children from Sexual Offences Act, 2012 prescribes the Presumption as to certain offences
Section 30 of the Protection of Children from Sexual Offences Act, 2012 prescribes the Presumption of culpable mental state
Section 323 of the Indian Penal Code, 1860 prescribes the Punishment for voluntarily causing hurt
Section 376 of the Indian Penal Code, 1860 prescribes the Punishment for Rape
Section 506 of the Indian Penal Code, 1860 prescribes the Punishment for criminal intimidation

CONTENTIONS OF THE APPELLANTS
The Appellants, through their counsel, in the said case contented that Trial Court failed to appreciate the evidence properly and gave undue weight to trivial contradictions and discrepancies and that the testimonies of the victim, PW-3 and PW-4 corroborate each other without inherent discrepancies or contradictions which would arise suspicion.
Further it was contented that the Accused threatened to kill the victim in case of any disclosure of the matter of sexual assault done by the Accused on the Victim, causing the delay in institution of the FIR and that it is justified by the fear instilled in the victim by the Accused.
Moreover, it was contented that according to the legal precedents, conviction can be rested solely on the testimony of a sexual assault victim if it is credible, cogent and unambiguous and that the testimony of the victim is considered credible and does not require corroboration, specifically since the assault occurred within the four walls of the house.
At last, it was contented that there is no plausible reason for a school going girl to falsely accuse her father of such grave offence and that the minor conflicts between the parents of the victim are not sufficient reasons for the victim to fabricate such severe accusations.

CONTENTIONS OF THE RESPONDENTS
The Respondents, through their counsel, in the said case contented that the Trial Court thoroughly analysed the evidences and rightfully concluded that there were significant contradictions, which undermine the case of the prosecution and that the case is fabricated due to the matrimonial discord, with the wife using the daughter to wrongfully implicate the Respondent.
Further it was contented that the delay in reporting was not explained adequately, raising doubts about the veracity of the accusations and that the testimonies of the victim, PW-3 and PW-4 are asserted to lack credibility due to unexplained material contradictions and inconsistencies.
Moreover, the respondent contented that the victim was tutored to make fake accusations as a tool in the marital discord between the Respondent and his wife.

COURT ANALYSIS AND JUDGMENT
The court in the case of Miss P & Ors. Vs. State of NCT Delhi & Anr., the court noted that the Victim testified about the sexual assault incident by the accused detailing specific acts and threats used to silence her and that the victim provided a consistent account of these assaults continuing almost daily for two years. The court stated that the victim has been consistent across her initial statement to the police as well as the magistrate and the minor inconsistencies and discrepancies are considered trivial and do not undermine the overall credibility of her account. The court also noted that the testimonies provided by the PW-3 and the PW-4 corroborated the account of the victim especially regarding the incident on the night of 18th January, 2013 and the abusive behaviour of the accused. The court stated that the observation of the Trial Court was deemed inconsequential and did not undermine the substance of the accusation. The court also cited several precedents where the Supreme Court emphasized the reliability of the testimony of the victim in the cases concerning sexual assault and highlighted that minor contradictions should not discredit the account of the victim if it inherently seems truthful. The court stated that the burden of rebutting the presumptions in the POCSO Act lies on the accused which must be done beyond any reasonable doubt. The court reassessed the testimonies and found them credible and consistent despite the minor discrepancies and acknowledged the corroborative evidences such as the medical examination reports. The court further acknowledged that the delay in reporting the sexual assault is common due to the societal pressures and fear of stigmas. The court thus upheld the case of the prosecution stating that the testimony of the victim was credible and that the defense failed to furnish any substantial evidence to rebut the statutory presumptions.


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Judgement Reviewed by – Sruti Sikha Maharana
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