For the offence under Section 138 N.I. Act, the presumptions under Sections
118(a) and 139 have to be compulsory raised as soon as execution of cheque by
accused is admitted or proved by the complainant and thereafter burden is
shifted to accused to prove otherwise. These presumptions end only when the
contrary is proved by the accused, that is, the cheque was not issued for
consideration and in discharge of any debt or liability.
A presumption is not in itself evidence but only makes a prime facie case for a
party for whose benefit it exists. This judgment was pronounced by the single
judge bench comprising hon'ble Justice Suresh Kumar Kait at Delhi High Court in
the matter of Rajesh Kumar v. Mehrotra Impex Pvt. Ltd.
The facts of the case are the petitioner was running a small garment factory.
Since around 2009, he was managing the respondent. Lastly during 15.11.2010 to
29.12.2010, he had bought some fabric materials from the respondent on layaway
basis, upon specific terms and conditions. Respondent gave seven invoices of
various sums for the material bought during 15.11.2010 to 29.12.2010.
In the main seven day stretch of July, 2011, last record hosts been commonly
settled between the parties and in this way eight cheques (without referencing
dates) having all out estimation of Rs.17,68,000/ – were given over to the
respondent. The petitioner had offered these cheques for making sure about the
obligation of the respondent.
Petitioner had vowed to pay part installments time to time. The respondent had
guaranteed that in the wake of getting all the due remarkable installments, all
the eight undated security cheques would be returned back to the petitioner.
Promptly from that point, in the most recent seven day stretch of July, 2011,
against the absolute obligation of Rs.17,68,000/ -, as guaranteed, the
petitioner had made a section installment of Rs.2,00,000/ – to the respondent.
This part installment of Rs.2,00,000/ – was made on 22.07.2011 through
compensation request. The said installment was made against running record and
The matter when went to the trial court, the respondent had conceded the said
truth under the steady gaze of the scholarly Trial Court. The instalment was not
made against a specific check, truth be told, it was made against all the stored
checks. In this way, in the wake of making the part instalment of Rs.2,00,000/-,
the complete extraordinary contribution/risk of the candidate had been
diminished to the measure of Rs.15,68,000/-.
On 19.04.2014, AR of the respondent obviously conceded that the last charge
balance was Rs.15,68,000/-. Instead of complying with the order of conviction
dated 25.05.2019 the petitioner challenged the judgment dated 15.05.2019 before
the Additional Session Judge, Saket Court, Delhi. However, the said appeal was
also dismissed vide judgment dated 27.02.2020. Consequently, the matter is
pending before the Learned Metropolitan Magistrate, for compliance of the Order
of Conviction dated 25.05.2019.
However, the petitioner has failed to appear and has been declared an absconder
vide order dated 18.11.2020. Despite the above conduct of the Petitioner, in an
audacious attempt the Petitioner has filed the present petition under Section
482 Cr.P.C. seeking compounding of the offence for which he has been convicted
as also seeking other reliefs which are beyond the jurisdiction of this Court
under the provisions of Section 482 Cr.P.C.
In view of the above the present petition is liable to be dismissed since the
Petitioner is not serious in complying with the directions of this Court passed
in C.S. (OS) 2379/2013 or Order of the Learned Metropolitan Magistrate, Saket
Delhi and has been avoiding the due compliance of such directions and further
has been running away from the law. Vide the present petition under Section 482
Cr.P.C., the petitioner has sought to combine the Civil Execution Proceedings
pending before the Learned Additional District Judge, Tis Hazari Court, Delhi,
and the criminal proceedings pending before the Learned Metropolitan Magistrate.
The said reliefs cannot be granted since both proceedings are mutually exclusive
and are pertaining to different reliefs since one is pending before the
Additional District Judge for execution of the settlement decree dated
29.01.2015 and the other is before the Learned Metropolitan Magistrate for
compliance of the order of conviction and which has been disposed of vide order
18.01.2020 whereby the petitioner has been declared an absconder after due
procedure under Section 82 Cr. P.C. was followed.
The hon'ble High Court of Judicature at Delhi has held that there has been
default, in making payment, on the part of petitioner since July 2011. Despite
the decree passed by this Court and conviction by the Trial Court, till date
respondent has not received the payment due. The legal fight of the respondent
had started from the legal notice dated 11.08.2011 and continued till date.
Thus, the respondent was compelled to run from pillar to post.
In such circumstances as in the present case, the petitioner deserves no
leniency or sympathy. In view of above facts and the law discussed, I am of the
view that there is no illegality or perversity in the orders passed by the Trial
Court and Appellate Court as well. Finding no merit in the present petition, the
same is dismissed with no orders as to costs. Pending application also stands
Written By: Prime Legal Law Firm
Off Address: 39/2, 2nd floor, K G Road, Bengaluru, Karnataka-560001
Phone no: +9986386002, Email: [email protected]