Delhi District Court
Rajesh Jain vs . Sunil Kumar Jain on 25 March, 2022
IN THE COURT OF MS. ARUSHI PARWAL, METROPOLITAN MAGISTRATE
(NI ACT)02, CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CNR No. : DLCT020016582011
CC No. : 532439/2016
U/s: 138 N. I. Act
P.S: Karol Bagh
Rajesh Jain vs. Sunil Kumar Jain
JUDGMENT
1. Sl. No. of the case : 532439/16
2. Date of institution of the case : 22.01.2011
3. Name of complainant : Rajesh Jain (through son Ankit Jain)
Proprietor of M/s Arihant Jewellers,
Add 2228, Hardhian Singh Road, Karol
Bagh, New Delhi - 110005.
4. Name of accused, parentage
and address : Sunil Kumar Jain
S/o Late Sh. S. L. Jain
Proprietor of M/s RataneKashmir
R/o H. No. C702, Dwarka Dham
Apartments, Sector 23, Dwarka,
New Delhi110077.
Previously at H. No. PP 25, First Floor,
Pitampura, Delhi.
5. Offence complained of : 138 N. I. Act
6. Plea of accused : Accused pleaded not guilty
7. Final order : Acquitted
8. Date of pronouncement : 25.03.2022
Digitally signed
ARUSHI by ARUSHI
PARWAL
PARWAL Date: 2022.03.25
16:55:14 +05'30'
CC No.: 532439/16 1/16 Rajesh Jain vs. Sunil Kumar Jain
BRIEF REASONS FOR DECISION OF THE CASE
Factual Background of the case:
1. Briefly stated facts of this case as per complaint are that the accused personally visited the complainant at his establishment at Karol Bagh on 07.12.2010 and purchased Pure Gold Bar weighing 115.840 grams vide Bill No.103 dated 07.12.2010 for Rs.2,39,110. As per practice in the trade, the accused was supposed to make cash payment of the bill amount before taking delivery of the gold bar. However, the accused had expressed his inability to pay in cash and requested the complainant to accept the cheque against the bill, to which the complainant agreed. It has been further stated that against the above said purchase and delivery of pure gold bar, the accused drew a cheque bearing no. 045739 dated 07.12.2010 for Rs.2,39,110/ on Union Bank of India, Ashok Vihar, Delhi110052 and handed over the same to the complainant. The accused also assured the complainant that the cheque handed over by him would be duly honoured on presentation.
2. It has been further stated in the complaint that on 07.12.2010, the complainant deposited the aforesaid cheque with his Banker i.e. Axis Bank Ltd., 6/83, Padam Singh Road, W.E.A., Karol Bagh, New Delhi110005, for realization. However, the same was returned as dishonoured by the complainant's bank vide return advice dated 09.12.2010 showing the reason of dishonour of the accused's cheque as "01 Funds Insufficient". It has been further stated that the complainant, through his counsel, sent a legal notice of demand dated 20.12.2010 to the accused by speed post no.
ARUSHI Digitally signed
by ARUSHI
PARWA PARWAL
Date: 2022.03.25
L 16:55:57 +05'30'
CC No.: 532439/16 2/16 Rajesh Jain vs. Sunil Kumar Jain
194242831 on 21.12.2010 and through U.P.C. dated 21.12.2010 demanding the payment of Rs.2,39,110/ i.e. the amount of the dishonoured cheque within 15 days. The said notice was duly received vide A.D. Card by the accused, who sent his reply dated 05.01.2011 through his advocate. In the said reply, the accused raised false, frivolous and concocted pleas but payment of dishonoured cheque was not made by the accused to the complainant. Hence, the present complaint was filed under Section 138 of Negotiable Instruments Act, 1881 (NI Act).
Proceedings before Court
3. On the basis of presummoning evidence, accused was summoned for the offence under Section 138 of Negotiable Instrument Act. The accused put in his appearance through counsel on 19.08.2011 and thereafter notice under Section 251 Cr.P.C. was framed upon the accused on 24.04.2012, to which accused pleaded not guilty and claimed trial. In his plea of defence, the accused stated that he had issued the cheque in question but it was without consideration or any liability and was given as an advance as security for the supply of gold ornaments, which were not supplied by the complainant. The ornaments were to be delivered by the complainant as per his specification and choice but the same were not delivered.
4. After the application under Section 145(2) of NI Act, filed on behalf of the accused, was allowed and the matter was listed for crossexamination of the complainant, the complainant expired. Thereafter, his son Sh. Ankit Jain was impleaded as his LR and the substitute complainant. In support of his case, the substituted complainant examined himself as CW1 and filed his affidavit in evidence, wherein primarily the contents of the complaint have been reiterated. He has relied upon the documents i.e. copy of Bill No.103 dated 07.12.2010 (Ex.CW1/1), original Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2022.03.25 16:56:27 +05'30' CC No.: 532439/16 3/16 Rajesh Jain vs. Sunil Kumar Jain cheque bearing no.045739 dated 07.12.2010 (Ex.CW1/2), cheque returning memo dated 09.12.2010 (Ex.CW1/3), copy of legal demand notice dated 20.12.2010 (Ex.CW1/4), original postal receipt (Ex.CW1/5), original UPC receipt (Ex.CW1/6), original AD card (Ex.CW1/7) and reply to legal demand notice sent on behalf of the accused (Ex.CW1/8).
The substituted complainant was duly crossexamined on behalf of the accused. During cross examination, he deposed that his father was doing the business under the name and style of 'Arihant Jewellers' for the 1011 years. He admitted that his father used to file his sales tax return and VAT with sales tax department and was also an income tax assessee. He stated that he had not brought the bill book of the concerned bill (Ex.CW1/1) bearing number 103 of Book number 02 dated 07.12.2010 but the same was seen and returned on 31.01.2011. He deposed that the bill in question was prepared in his presence and bore the signatures of his father at point A. He further deposed that he could not tell whose signatures were at point B on Ex.CW1/1. The balance sheet filed along with the income tax showed the name of accused as sundry debtor. He admitted that his father used to maintain stock register of his said concern and that he could tell the stock of gold for the relevant period after going through the records/books as the aforesaid records were in his possession. He denied that no bill as claimed by him was prepared by his father and also that he was not physically present on 07.12.2020. He denied that the wife of the accused wanted to purchase some jewellery items as mentioned in the reply of notice (Ex.CW1/8). He denied that the cheque in question was given by the accused to his father as a security cheque and that the no gold was ever delivered by his father to the accused against the bill Ex.CW1/1. He admitted that he had not brought the original bill book concerning the bill in question on the day his further crossexamination was conducted after it was deferred for the first time. He deposed that he had filed on record the list of sundry debtors Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2022.03.25 16:57:00 +05'30' CC No.: 532439/16 4/16 Rajesh Jain vs. Sunil Kumar Jain forming part of income tax record, which show the name of the accused as on 31.03.2011. The name of the accused was also shown in the ledger account for the period of 01.04.2010 to 31.03.2011. He denied that the aforementioned list of sundry debtors and ledger account didn't bear the acknowledgement of income tax department for the relevant period. He denied that the bill in question was forged and fabricated and that the accused had nothing to pay on account of the alleged liability.
Thereafter, CE was closed on 31.08.2017.
5. Statement of accused, under section 313 Cr.P.C. r/w section 281 Cr.P.C., was recorded in which he stated that he was innocent. He stated that he along with his wife had gone to the shop of the complainant on 07.12.2010 for purchase of a pair of gold kada and two gold bangles and had selected the design. He further stated that some alteration was required in the same by his wife and when they went there again after one week, the change in the design was not there. He further stated that they had issued the cheque in question to the complainant on 07.12.2010 itself as security as the complainant had stated that they were to get the articles prepared from someone else. There was an understanding between them that the cheque shall be returned on payment of amount in cash. He further stated that when they noticed that the design/art work was not as per their wishes, they demanded their cheque but were told that same had already been presented for enchasment mistakenly. No gold articles were delivered to them and the bill in question does not bear his signature. He further stated that his cheque had been misused.
6. Accused had lead evidence in his defence, whereby he had examined himself as DW1. As DW1, the accused deposed that he had visited the shop of complainant Sh. Rajesh Jain on 07.12.2010 along with his wife, as he had friendly Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2022.03.25 16:57:30 +05'30' CC No.: 532439/16 5/16 Rajesh Jain vs. Sunil Kumar Jain relation with him and was asked by the complainant to purchase jewellery and was given the assurance that gold items will be supplied at a lesser rate. Then, the complainant showed him one pair of gold kada and two bangles, which were not complete in art work. He had asked him to complete the deficiency in the said bangles and was assured to be supplied the gold articles as per the art work of their order. He further deposed that the complainant asked him to issue a security cheque for getting the gold articles prepared from someone else i.e. complainant's brother. He handed over to him a cheque as security and was told to come after a week that the delivery of gold articles. After a week, when he visited him, the gold articles were not as per their specification. He further deposed that he had asked the complainant to return the cheque but was told that cheque had been presented for payment and that he had received the same reply on further requests. He further deposed that the complainant never returned the cheque and he was not issued any bill or any articles against any purchase. The bill filed on record did not bear his signature and the deceased complainant had forged signature on the bill after copying it from the cheque issued by him towards security. He further deposed that he had no liability to pay any amount to the complainant and he was cheated by the complainant being the relative of the complainant.
He was duly crossexamined on behalf of the complainant. In his cross examination, he deposed that the cheque number, date and the name of the bank written on the bill (Ex.CW1/1) is similar to the cheque in question. He further deposed that no word "security" was written on Ex.CW1/1, however, he had given the same as security. He admitted that he had not made any complaint, 100 number phone call or had sent any notice or any SMS or had lodged any complaint u/s 156(3) Cr.P.C. or had written any letter to his bank to stop payment, in regard of nonreturn of cheque by the complainant. He stated that he had made a telephonic call to the complainant regarding Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2022.03.25 16:57:54 +05'30' CC No.: 532439/16 6/16 Rajesh Jain vs. Sunil Kumar Jain the same. He deposed that Ex.CW1/1 did not bear his signature/initials and denied that the same bore his signature at point 'X'. He denied that he had purchased any gold bar from the complainant.
7. Witness from Income Tax office was examined as DW2. He had brought the summoned record, that is, ITR of the complainant for Assessment Year 201011 (Financial Year 20092010), bearing the signature of Income Tax Officer. He further stated that the same did not contain any list of sundry debtors. In his crossexamination, he stated that he was not aware if the ITR for Assessment Year 201011 was relevant for the present case or not. He further stated that the ITR filed on record by the complainant pertained to Assessment Year 201112.
Thereafter, DE was closed on 23.01.2020.
8. Afterwards, final arguments were heard on behalf of both the parties and after hearing the arguments, trial was concluded. I have heard the counsels for both the parties, perused the record and have gone through relevant provisions of the law and the judgements relied upon by the parties.
Points for determination 9.1. Whether the complainant has been able to establish ingredients of offence punishable under Section 138 of The Negotiable Instruments Act, 1881 beyond shadow of reasonable doubt against the accused or not?
9.2. Final order.
ARUSHI Digitally by ARUSHI signed PARWA PARWAL Date: 2022.03.25 L 16:58:27 +05'30' CC No.: 532439/16 7/16 Rajesh Jain vs. Sunil Kumar Jain Findings
10. Before appreciating the facts of the case in detail for the purpose of decision, relevant position of law is discussed. It is settled position of law that to constitute an offence under S.138 N.I. Act, the following ingredients are required to be fulfilled:
1) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;
2) that cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
3) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
4) the payee or the holder in due course of the cheque makes 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;
5) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
It is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the NI Act.
11. In the present case, the accused has admitted that the cheque in question (Ex.CW1/2) is his cheque and bears his signature. It was dishonoured for reason "Funds Insufficient" vide cheque returning memo (Ex.CW1/3). As per the postal Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2022.03.25 16:58:46 +05'30' CC No.: 532439/16 8/16 Rajesh Jain vs. Sunil Kumar Jain receipt, UPC receipt and AD card filed, the legal demand notice had been sent to the accused within 30 days from receipt of intimation of dishonor of the cheque in question. The legal demand notice sent by the complainant was duly replied to on behalf of the accused. The same confirms the service of legal demand notice upon the accused. Despite service of notice, payment of cheque amount had not been made by the accused to the complainant within 15 days of receipt of legal demand notice. Hence, all requirements for filing a complaint under Section 138 of NI Act have been complied with in the present case and the complaint has been filed within limitation.
12. On merits, it has been argued on behalf of the complainant that the complainant has established his case by proving the transaction and the case of the complainant has gone unrebutted. The presumptions under Section 118(a) and Section 139 of NI Act aid the case of the complainant. The accused has taken a false defence, which also he was unable to establish during the entire trial. He has not explained the possession of his signed cheque with the complainant other than for the transaction as stated by the complainant. He has not even examined his wife as a witness to prove his defence and as such, adverse inference has to be drawn on that point. It is hence prayed that the accused be convicted for offence under Section 138 of NI Act. Reliance has been placed upon the judgment of Hon'ble Supreme Court of India in 'Triyambak S. Hegde v. Sripad [(2022) 1 SCC 742]'.
Per contra, it has been argued on behalf of the accused that the complainant has failed to prove, beyond reasonable doubt, a legally enforceable debt in his favour and the liability of the accused. The cheque in question was issued by the accused as a blank signed security cheque, however, goods were never supplied to the accused, as has been stated in the complaint. Firstly, the complainant has not proved that he was the proprietor of complainant proprietorship concern (payee of the cheque ARUSHI Digitally signed by ARUSHI PARWA PARWAL Date: 2022.03.25 L 16:59:06 +05'30' CC No.: 532439/16 9/16 Rajesh Jain vs. Sunil Kumar Jain in question). Secondly, bill Ex.CW1/1 has not been proved by the complainant. The same does not bear the signature of the accused and the substituted complainant has himself failed to identify the signature on the bill. Even the bill book, from which the said bill purportedly issued, was not brought at the time of crossexamination. The said bill has a VAT number, yet no receipt of VAT Department has been filed by the complainant to show the tax paid and witness from VAT department has not been examined. Since the complainant could not establish any legal liability against the cheque in question, the accused deserves to be acquitted.
13. The Negotiable Instruments Act raises two presumptions in favour of the holder of the cheque i.e. complainant in the present case; firstly, with regard to passing of consideration as contained in Section 118 (a) and, secondly, a presumption under Section 139, that the holder of cheque receiving the same of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. These presumptions under Sections 118(a) and 139 have to be compulsorily raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted upon the accused to prove otherwise. The onus to prove the issuance of the cheque lies upon the complainant, and the same has to be proved beyond reasonable doubt, unless the accused admits the same. Once the issuance of cheque is established, either by admission or by positive evidence, the presumption under Section 139 of the Negotiable Instruments Act, 1881 arises.
In the present case, the accused has admitted his signature on the cheque in question. Hence, the presumptions under Sections 118(a) and 139 of NI Act have been raised in favour of the complainant. The onus then shifted upon the accused to rebut the said presumption. The standard of proof to be discharged by the accused is 'preponderance of probabilities'.
Digitally signedARUSHI by ARUSHI PARWAL PARWAL Date: 2022.03.25 16:59:36 +05'30' CC No.: 532439/16 10/16 Rajesh Jain vs. Sunil Kumar Jain
14. It has been held by Hon'ble Supreme Court of India in 'Rangappa v. Sri Mohan [(2010) 11 SCC 441)]' "14. In light of these extracts, we are in agreement with the respondentclaimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2022.03.25 16:59:56 +05'30' CC No.: 532439/16 11/16 Rajesh Jain vs. Sunil Kumar Jain under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
It has been held by Hon'ble High Court of Delhi in 'Satish Sharma v. State NCT of Delhi & Anr. [(2013) 204 DLT 289]' "8. Although the Court is under an obligation to raise the presumption contemplated under Sections 118, 138 and 139 in every case, where the factual basis for raising the presumption has been established by the complainant, the accused is required to raise a probable defence or rebut such a presumption by leading evidence or bringing such facts on record in the crossexamination of the complainant that could make the latter's case improbable. For doing so, it is not necessary for the accused to disprove the existence of consideration by way of direct evidence. The standard of proof has been held to be preponderance of probabilities and the inference of preponderance of probabilities can be drawn not only from the materials that have been placed on record, but also by reference to the circumstances upon which the accused relies. (Ref: AIR 1999 SC 1008 entitled Bharat Barrel and Drum Manufacturing Company vs. Amin Chand Payrelal). If the accused is proved to have discharged the initial onus of proof placed on him by showing that the existence of consideration was improbable or doubtful or illegal, then the onus will shift back to the complainant who will then be under an obligation to prove it as matter of fact and failure to do so will disentitle him to any relief on the basis of the negotiable Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2022.03.25 17:00:25 +05'30' CC No.: 532439/16 12/16 Rajesh Jain vs. Sunil Kumar Jain instrument."
15. To rebut the presumption raised against him, the accused has challenged the bill (Ex.CW1/1), which has been relied upon by the complainant to show a legally enforceable debt upon the accused and for which the cheque in question was allegedly issued to the complainant. Admittedly, copy of the said bill filed on record is actually the copy of its counterfoil as the original bill was allegedly issued to the accused. Firstly, during the entire course of trial, the original counterfoil or the bill book were not brought on behalf of the complainant despite the same having been requisitioned by the counsel of the accused during the crossexamination of the substituted complainant. Once the challenge to the said bill had been raised by the accused, the appropriate mode of proving the same was to bring the concerned bill book, from which the said bill was allegedly issued. Perusal of the concerned bill book could have established the factum of the said bill having been issued in regular course of business. In absence of the same, factum of bill being issued in regular course of business has not been established. Even the contention of the complainant that original counterfoil of bill Ex.CW1/1 was seen and returned at the time of presummoning evidence will not help the complainant to establish the genuineness of said bill. Original counterfoil of the bill was never shown to the accused for conducting crossexamination. The complainant cannot place reliance on a document to establish his case and then say that he does not wish to produce the same at the time of crossexamination. Adverse inference for not bringing the original counterfoil of the said bill during his crossexamination is raised against the complainant. Secondly, despite requisition on behalf of the accused, the VAT receipt or the proof of VAT paid on the alleged sale of gold bar to the accused has not been filed on behalf of the complainant. Cumulative VAT returns filed by the complainant's firm during the relevant period have been brought on record on behalf of the complainant.
Digitally signedARUSHI by ARUSHI PARWAL PARWAL Date: 2022.03.25 17:00:45 +05'30' CC No.: 532439/16 13/16 Rajesh Jain vs. Sunil Kumar Jain However, the same do not contain the salewise break up of VAT paid and do not establish the VAT allegedly paid by the complainant on the alleged sale to the accused. No document has been brought on record by the complainant that conclusively establishes the sale of the gold bar to the accused, as alleged in the complaint. Hence, the alleged sale of gold bar to the accused remains not proved.
16. Thirdly, perusal of copy of bill Ex.CW1/1 reveals that the same has a column for customer's signature. The accused has denied that the said bill was issued to him and that the same bears his signature and endorsement. The substituted complainant has also failed to identify or establish the signature of the accused on the said bill. Hand writing/ endorsement of the accused or his signature on the said bill have not otherwise been established by the complainant. Even the perusal of signature at point 'X'/'B' reveals that the same is different from the signature on the cheque in question. Hence, it has not been proved if the said bill was actually issued to the accused against the sale of gold bar, as alleged in the complaint. Otherwise, the bill would bear the signature of the accused in the column for customer's signature. Fourthly, it is complainant's own case that the mode of payment for transactions like the one in question was cash payment by the customer. Considering the same, it appears quite unlikely that the complainant accepted a cheque from the accused against the alleged sale of gold bar to him without a proper undertaking from the accused to the effect. Even the bill of the alleged sale does not appear to bear the signature of the accused despite having a column for 'customer's signature'. This creates a doubt as to whether the alleged sale transaction actually took place. Fifthly, the contention on behalf of the complainant that the accused was shown as a sundry debtor in the account statement and ITR does not hold merit. Admittedly, the account statements and balance sheets filed on record have been authored by the Chartered Accountant of the Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2022.03.25 17:01:12 +05'30' CC No.: 532439/16 14/16 Rajesh Jain vs. Sunil Kumar Jain complainant, who has not been examined to prove the same. Further, no certificate under Section 65B of Indian Evidence Act has been filed for the said electronic evidence and as such, the same cannot be read in evidence.
Considering the above together, in the considered opinion of this court, the bill Ex.CW1/1 remains not proved and the complainant has failed to establish the sale of gold bar to the accused. Since the aforementioned sale transaction has not been proved, no liability upon the accused qua the cheque in question has been established. The existence of legally enforceable debt qua the cheque in question has been sufficiently rebutted.
17. Further, a consistent defence has been taken by the accused in his reply to legal demand notice, plea of defence, crossexamination of the complainant and his own evidence. It has been contended that the cheque in question was issued as security cheque against preparation of gold jewellery by the complainant as per the specification given by his wife. Since the jewellery was never prepared as per their requirement, no delivery of the same were taken from the complainant and no legal liability accrued upon the accused. Accused has not contested the trial by taking various or inconsistent defences and has not tried to settle the matter on any other ground. Reliance can be placed upon his testimony lead in defence evidence. In the considered opinion of the court, the accused has been able to raise a probable defence in his favour qua the possession of cheque in question with the complainant and the absence of a legal liability upon him.
18. Considering the above facts and circumstances in toto, this court is of the considered opinion that the complainant has not been able to prove the transaction with the accused and accused has been able to rebut the presumption of legally enforceable Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2022.03.25 17:01:40 +05'30' CC No.: 532439/16 15/16 Rajesh Jain vs. Sunil Kumar Jain debt to the amount of cheque in question. Thereafter, the onus had shifted back upon the complainant to prove the ingredients of the offence under Section 138 of NI Act against the accused beyond reasonable doubt. The complainant has failed to discharge the said onus and prove beyond reasonable doubt, the factum of a legally enforceable debt and outstanding upon the accused, to the tune of Rs.2,39,110/, and issuance of cheque by the accused of nature as contemplated under Section 138 of NI Act.
19. In the light of above discussion, on account of the fact that the complainant has failed establish the ingredients of offence under Section 138 of NI Act against the accused beyond reasonable doubt, accused Sunil Kumar Jain is hereby acquitted for the offence under section 138 NI Act.
Bail bonds of the accused stand cancelled. His surety stands discharged. Documents of surety, if any, be returned against due acknowledgment. Endorsement on document of surety, if any, be cancelled.
Bonds under Section 437 A Cr.P.C. have been furnished. The same are hereby accepted for a period of six months from today.
Digitally signed ARUSHI by ARUSHI Announced in open court PARWAL on 25.03.2022 PARWAL Date: 2022.03.25 17:02:07 +05'30' (ARUSHI PARWAL) Metropolitan Magistrate (NI Act)02 Central, Tis Hazari Court, Delhi. CC No.: 532439/16 16/16 Rajesh Jain vs. Sunil Kumar Jain