Draft of Criminal Appeal before Sessions Judge in Cheque Bounce Case (Sec. 138 NI Act)

IN THE COURT OF SESSIONS JUDGE,

PATIALA HOUSE COURT, NEW DELHI

CRL. APPEAL NO._________OF 2022

IN THE MATTER OF :

Ramesh                                               ……..     Appellant

Versus

Neeraj                                                …..…..  Respondent

INDEX

APPELLANT

THROUGH

New Delhi                                              ( AVINASH  N. SHARMA)

Date                                                                                Advocate

Chamber No. 671,Patiala House Court

New Delhi-110001. Mob: 8800794128

IN THE COURT OF SESSIONS JUDGE,

PATIALA HOUSE COURT, NEW DELHI

CRL. APPEAL NO._________OF 2022

IN THE MATTER OF :

Ramesh                                               ……..     Appellant

Versus

Neeraj                                                …..…..  Respondent

MEMO OF PARTIES

Sh. Ramesh,

S/o. Sh. X

R/o A, Pahar Ganj, New Delhi – 110050      ……Appellant

Versus

Sh. Neeraj

S/o Sh. Y

R/o. B , Pahar Ganj, New Delhi – 110055        .….Respondent

APPELLANT

THROUGH

New Delhi                                                ( AVINASH N. SHARMA)

Date                                                                               Advocate

Chamber No. 671,Patiala House Court

New Delhi-110001. Mob: 8800794128

IN THE COURT OF SESSIONS JUDGE,

PATIALA HOUSE COURT, NEW DELHI

CRL. APPEAL NO._________OF 2022

IN THE MATTER OF :

Sh.Ramesh,

S/o. Sh.  X

R/o A, Pahar Ganj, New Delhi – 110050                             ……Appellant

Versus

Neeraj

S/o Sh. Y

R/o. B, Pahar Ganj, New Delhi – 110055                         .….Respondent

U/S. 138 N.I. Act.

P.S. Connaught Place,

CC No. 135/1/20

CRIMINAL APPEAL U/S. 374 (3) Cr. P.C. AGAINST ORDER OF CONVICTION AND SENTENCE DATED 20/12/2021 & 05/02/2022 PASSED BY THE COURT OF SH. SATVIR SINGH, MM, PATIALA HOUSE COURTS, NEW DELHI, IN THE ABOVE MENTIONED COMPLAINT CASE N0. 135/1/20

MOST RESPECTFULLY SHOWETH:

1. That the appellant above named is preferring the present appeal against final judgment of conviction and sentence dated 20/12/2021 & 05/02/2022 passed by the court of Sh. Satvir Singh , Patiala House Courts, New Delhi, in the above mentioned Complaint Case No. 135/1/20 thereby Ld. Magistrate held the appellant guilty and sentenced  him simple imprisonment for one year and further directed to pay as compensation of Rs. 2,00,000/- and in default of payment of fine further simple imprisonment of 3 months. The certified copy of judgment and sentence dated 20/12/2021 & 05/02/2022 are annexed herewith as Annexure-1 (Colly)
2. That in the present case following legal issues are involved to be adjudicated.                                                              A. Whether the friendly loan can be proved only on the verbal evidence of the complainant without producing the other necessary document relied by the complainant himself when the other friends as defence witnesses disprove the facts of any loan between the appellant and respondent.                                                                                          B.Whether the defence of misuse of stolen cheque requires the action of written complaint to police or letter to the bank when the same is not known to the appellant till the service of the summons of the case by the Court.               C.Whether the friendly loan of Rs.1lakh can be given by way of cash in disregard to the provisions of Income Tax Act, 1961 without any proof.
3. That the brief facts leading to filing of the instant appeal are as under:-
4. That the respondent/complainant made a complaint U/s. 138 N.I. Act on 19.11.2020 against the appellant for dishonor of cheque for the amount of Rs. 1,00,000/- (One Lakh).
5. That as per respondent/ complainant, the complainant  is working as a call boy (Electric) in Indina Railways and the appellant is also working as Attendent in Indian Railways at Delhi.
6. That as per respondent’s complaint, the respondent and appellant are known to each other for the last 15 years and are residing in the same vicinity. It is alleged that the Appellant had approached the respondent / complainant for a personal / friendly loan of Rs. 1 lakh from him in the month of June, 2020 for a period of two months and keeping in view the dire need of appellant , the respondent had advanced him an amount of Rs. 1 lakh. It is further alleged that in order to discharge the said liability accused had issued a cheque bearing no. 034616 dated 02.09.2020 for a sum of Rs 1,00,000/- drawn on Allahabad Bank, DRM Office , New Delhi in favour of the Respondent.
7. That the respondent presented the said cheque in question for encashment through his Banker but the same was got dishonored by banker with with the remarks “ funds insufficient” vide return memo dated 12/10/2020.
8. That on 19.10/2020 respondent/ complainant sent legal notice U/s. 138 (b) of N.I. Act. When the said cheque amount was not paid, the respondent filed the present complaint. The copy of the complaint is annexed herewith as Annexure-2.
9. That vide order dated 21.11.2020 Ld. Magistrate summoned the appellant and on 22.12/2021 , the appellant moved the application U/s 145(2) of NI Act and the notice U/s.251 Cr. P.C was framed against appellant to which appellant pleaded not guilty. The copy of the application and  notice U/s.251 Cr. P.C is annexed herewith as Annexure-3(Colly).
10. That during trial the respondent examined only himself   as CW-1. The  respondent  placed on record his evidence by way of affidavit and exhibited certain formal documents and he was cross examined by the counsel for the appellant. The copy of the evidence and corss-examination of the respondent  and exhibits are Annexure-4 (Colly).
11. That after completion of only one C.W., statement of Accused U/s. 313 Cr. P.C. was also recorded wherin appellant stated that since he had not handed over any cheque to the respondent and the respondent has deposed against him to falsely implicate him. The copy of the statement of appellant U/s. 313 Cr.P.C. is annexed herewith as Annexure-5.
12. That in order to prove his innocence the appellant examined himself as DW1 and stated in his chief examination that he is falsely implicated in the present case and is not having any liability towards the respondent/ complainant as he has stolen his signed cheque as the respondent was having key of his house when appellant had left to his native place to attend his ailing mother. Appellant came to know about the stealing of the cheque in question by the respondent only on receiving of the summons in the present case. Complainant has misused the said cheque for taking a revenge of quarrel with his brother in a marriage ceremony at his native place. The copy of the chief and cross of the appellant as DW1 is annexed herewith as Annexure-6
13. That the appellant also examined Sh. Ram Singh S/o. Sh. Moolchand as DW2, Sh. Anwar Khan S/o. Sh. Habib Khan as DW3 and Siddharth Kumar S/o. Late Sh. Devi Prasad as DW4. The copy of the Defence Evidence and cross examination is annexed herewith  as Annexur-7(Colly).
14. That Ld. Magistrate after hearing of the case and perusing the evidence on record convicted and sentenced the appellant for the offence U/s. 138 N.I. Act.
15. That the appellant is preferring the present appeal following among other grounds:

GROUNDS

1. That the impugned orders/judgment of the Ld. Trial Court is against the facts of the case and law.
2. That the respondent has not supported his case on the ground of friendly loan through any other documents i.e. Bank Statement as the same was given in cash.
3. That the respondent had availed loan of Rs. 2 Lakhs from the Railway and out of which he had given the friendly loan of 1 lakh to the appellant. The proof of availing loan from Railways was not filed and the same was not written in the Complaint which makes the instant case of friendly loan doubtful and which fact was not evaluated by the Trial Court.
4. That the respondent is a Govt. Servant and is income tax payee but refused to produce ITR in front of the Trial Court and he has accepted in his cross- examination that he has not shown in his ITR that he has given Rs. 1 lakh as loan to the appellant.
5. That appellant has examined three deffence witnesses in his support namely Sh. Hari Ram, Sh. Anwar Khan & Sh. Siddharth Kumar who reveal that they are known to appellant and respondent denying the existence of any friendly loan between them.
6. The Hon’ble Trial court failed to consider that the respondent in his cross-examination states – “ I can not tell the actual date when I had given the loan to the accused.” This fact makes the entire case of friendly loan doubtfull.
7. That purpose of giving said friendly loan to the appellant is not known to the respondent / complainat despite the fact that the respondent himself had taken loan from the Railway which fact was not considered by the Trial Court.
8. That not considering the fact that the accused had stolen the said cheque and misused , the Hon’ble Trial Court has wrongly observed in the impugned judgment that the plea of defence of stealing the cheque by complainant from the house of the accused in his absence does not hold water in absence of any police complaint for the alleged incident of stolen cheques nor he had given any necessary direction to his banker as a precautionary measures for avoiding the misuse of alleged stolen cheques or missing cheques. The appellant has specifically stated in his cross examination that he came to know that his cheque was stolen by complainant when he received summons from the court which fact was not considered by the Trial Court. The motive behind this is some quarrel between the brother of the appellant and the complainant /respondent.
9. That the Ld. Trial Court failed to consider the evidence of the DW 2, Sh. Hari Ram , a senior citizen  at 70 years of his age who in his examination in chief states- “ the complainat used to visit the house of the accused. I have seen the complainat sitting in the House of the accused even in his absence.
10. That the date of loan as mentioned in the complaint is June 2020 which was for a period of 2 months only and  cheque was allegedly given on 02.09.2012 after the gap of one month and the respondent says in his cross that – I had not asked the accused to repay my loan amount in front of anybody.”  The Trial Court did not observe this aspect which is  contrary to the human nature as debtor is always defamed in the eye of other friend circle when both  work in the same department of railway and having friendship for last 15 years.     The Trial Court failed to consider legal principle that the appellant is required to show his defense on the scale of preponderance of the probabilities.
11.  That the appellant had rebutted the presumptions U/s. 118 & 139 NI Act not only by examining his own witnesses but also through the cross examination of the complainant who is the only complainant witness. In order to rebut the legal presumption in question, the accused need not require direct evidence to disprove the existence of consideration.
12. Any other grounds with the kind permission of this Hon’ble Court at the time of oral arguments.

                                                  PRAYER

In view of the aforesaid facts and circumstance of this case, it is most respectfully prayed that the Hon’ble court may be pleased:

1. To set aside the order of conviction and sentence dated 20/12/2021 & 05/02/2022 passed by the Court Of Sh. Satvir Singh , MM, Patiala House Courts, New Delhi  in the  Complaint Case N0. 135/1/20
2. To call for the record of Trial Court;
3. To pass any other or further order (s) as this court may deem fit and proper in favour of appellant, in the interest of justice.

APPELLANT

THROUGH

New Delhi                                              ( AVINASH  N. SHARMA)

Date                                                                                Advocate

Chamber No. 671,Patiala House Court

New Delhi-110001. Mob: 8800794128

IN THE COURT OF SESSIONS JUDGE,

PATIALA HOUSE COURT, NEW DELHI

CRL. APPEAL NO._________OF 2022

IN THE MATTER OF :

Ramesh                                               ……..     Appellant

Versus

Neeraj                                                …..…..  Respondent

AFFIDAVIT

I, Ramesh, Aged about 48 years,S/o. X R/o. A,  Pahar Ganj, New Delhi-11050, do hereby solemnly affirm and declare as under:-

1. That I am the appellant in the present case and as such I am well conversant with the facts and circumstances of the present matter and am competent to swear this affidavit.
2. That the accompanying Appeal U/S. 374 (3) Cr. P.C. has been drafted by my counsel under my instructions and the contents of the same have been read over and explained to me in vernacular and the same are true and correct. That the contents of the same may be treated as part and parcel of this affidavit as the same are not being repeated herein for the sake of brevity.

                                                                DEPONENT

VERIFICATION

Verified at New Delhi on this 4th day of  March. 2022 that the contents of the above affidavit are true and correct to the best of my knowledge and belief and nothing material has been concealed therefrom.

                                                                          DEPONENT

IN THE COURT OF SESSIONS JUDGE,

PATIALA HOUSE COURT, NEW DELHI

CRL. APPEAL NO._________OF 2022

IN THE MATTER OF :

Ramesh                                               ……..     Appellant

Versus

Neeraj                                                …..…..  Respondent

APPLICATION UNDER SECTION 389 CR.P.C. FOR SUSPENSION OF SENTENCE AND FOR GRANT OF BAIL

MOST RESPECTFULLY SHOWETH:

1. That in the present case the appellant has been convicted for offence under Section 138 N.I. Act by Ld. Trial Court of    Satvir Singh Lamba , MM, Patiala House Courts, New Delhi, in complaint case No. 135/1/22 thereby Ld. Magistrate held the appellant guilty and sentenced  him simple imprisonment for one year and further directed to pay as compensation of Rs. 2,00,000/- and in default of payment further simple imprisonment of 3 months.
2. That the facts and grounds of Appeal are set out in the appeal, which are not reproduced herein for the sake of brevity, however the same may be treated as part and parcel of this application for suspension of sentence and for grant of bail till the final disposal of the appeal.
3. That the appellant is not a previous convict. The appellant is law abiding citizen and has clean antecedents having deep roots in the society.
4. That the appellant undertakes that in the event the appellant fails to succeed in the appeal, the appellant shall surrender to serve out the final sentence that may be passed by the Hon’ble Court and that the appellant will abide by the terms and conditions which would be imposed upon the appellant by this Hon’ble court, while granting bail to the appellant pending the decision of the appeal.
5. That the appellant has not preferred any other similar application either before this Hon’ble court or before the Hon’ble the Supreme Court of India.

PRAYER

It is , therefore most respectfully prayed that this Hon’ble Court may be pleased to :

1. Suspend the sentence of imprisonment and of compensation of Rs. 2,00,000/- awarded on 20/12/2021 & 05/02/2022 and grant bail to the appellant on such terms and conditions as this Hon’ble Court may deem fit and proper, in the interest of justice.
2. Pass any other or further order as this Hon’ble court may deem fit and proper in the facts and circumstances of the case, in the interest of justice.

APPELLANT

THROUGH

New Delhi                                               ( AVINASH  N. SHARMA)

Date                                                                                Advocate

Chamber No. 671,Patiala House Court

New Delhi-110001. Mob: 8800794128

IN THE COURT OF SESSIONS JUDGE,

PATIALA HOUSE COURT, NEW DELHI

CRL. APPEAL NO._________OF 2022

IN THE MATTER OF :

Ramesh                                               ……..     Appellant

Versus

Neeraj                                                …..…..  Respondent

AFFIDAVIT

I, Ramesh, Aged about 48 years,S/o. X  R/o. A, Pahar Ganj, New Delhi-11050,, do hereby solemnly affirm and declare as under:-

1. That I am the appellant in the present case and as such I am well conversant with the facts and circumstances of the present matter and am competent to swear this affidavit.
2. That the accompanying Application U/S. 389 Cr. P.C. has been drafted by my counsel under my instructions and the contents of the same have been read over and explained to me in vernacular and the same are true and correct. That the contents of the same may be treated as part and parcel of this affidavit as the same are not being repeated herein for the sake of brevity.

                                                    DEPONENT

VERIFICATION

Verified at New Delhi on this       this  day of March 2022 that the contents of the above affidavit are true and correct to the best of my knowledge and belief and nothing material has been concealed therefrom.

                        DEPONENT