Draft of Criminal Appeal before Sessions Judge in

Cheque Bounce Case (Sec. 138 NI Act)

tophitonadvocate.com/1886-2/

May 16, 2022

CriminalCriminal
May 16, 20221 By Avinash Nandan Sharma

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

S.No. Particular page court

Fee

1. Memo of Parties A

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 2. Appeal U/s. 374 (3) Cr.P.C.
Alongwith Affidavit

3. Annexure-1, (Colly) copy of the judgement and sentence dated

20/12/2014 & 05/02/2015

4. Annexure-2, The copy of the complaint U/s. 138 N.I Act

5. Annexure-3, Copy of Application & Notice U/s.251 Cr.P.C.

6. Annexure-4(Colly), Copy of evidence & corss-examination of

the respondent/complainant alongwith exhibits

7. Annexure-5, Copy of statement of Accused U/s. 313 Cr.P.C.

8. Annexure-6(Colly), Copy of the chief and cross examination of

Appellant as DW1.

9. Annexure-7, The copy of the chief and Cross of DW2, DW3 &
DW4

10. Application U/s. 839 Cr.P.C. for suspension of sentence along with affidavit

11. Vakalatnama

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

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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,

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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.

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 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.

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 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.

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 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:-

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 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.

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 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

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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

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