Delhi District Court
Dal Chand Yadav vs Brijendra Arora on 7 August, 2023
CC No. 8041/2018
CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 1 of 36
IN THE COURT OF SH. VISVESH, METROPOLITAN
MAGISTRATE, N.I. ACT-06, CENTRAL, TIS
HAZARI COURTS, DELHI
CNR DLCT020121462018
CC No. 8041/2018
Dal Chand Yadav
Aged 66 years
S/o Late Sher Singh
R/o WZ-206A, Madipur,
New Delhi - 110063
Mob. 9312202463 ...... Complainant
Vs.
Brijendra Arora
S/o Late Madan Lal Arora,
GH-1/203, MIG Flats, Paschim Vihar
New Delhi - 110063
Also, At:
C/o Narayana Securities Ltd.,
1/7, 3rd Floor, East Patel Nagar,
New Delhi - 110008 ...... Accused
Date of Institution : 03.04.2018
Offence complained of : s.138 of The Negotiable Instruments
Act,1881
Plea of the Accused : Not Guilty
Final Order : Acquitted
Date of Decision : 07.08.2023
Page 1 of 36
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CC No. 8041/2018
CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 2 of 36
Appearance:
Sh. Siddhartha Yadav, Ld. Counsel for the Complainant
Sh. Shivam Sharma, Ld. Counsel for the Accused
JUDGEMENT
1. The present Complaint has been filed by the Complainant against the Accused under section 138 Negotiable Instruments Act, 1881.
Factual Matrix
2. The brief facts as alleged by the Complainant in the Complaint are that the Accused is known to the Complainant and they both are on friendly terms. It is alleged that the Accused had approached the Complainant with a request for a friendly loan of ₹ 6 lacs for urgent business needs wherein the Complainant had advanced the said amount on 10th of November 2014 with the stipulation that the same would be repayable within a period of three years and would also pay interest at 12% per annum. It is also alleged that the Accused had executed a promissory note, receipt in favour of the Complainant with regard to the aforesaid loan amount and had also issued two post-dated cheques to the Complainant bearing Nos. 753162 and 753163 dated 1st of November 2017 and 25th of number 2017 for a sum of ₹ 5 lakh and 1 lakh respectively and both drawn on Vaish Cooperative Bank, Jwala Heri Branch, hereinafter referred to as the cheques in question.
2.1 Subsequent to the above, it is alleged that the Accused had told the Complainant that he would pay interest after expiry of one year but Page 2 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 3 of 36 the same was not paid and before the date of presentation of the first cheque on the due date, i.e., 1st of November 2017, the Accused had conveyed to the Complainant not to present the cheque and requested the Complainant to present the cheques in question together on 27th of November 2017. The Complainant had presented the cheques in question and 27th of November 2017 wherein they both got dishonoured on account of insufficiency of funds.
2.2 Thereafter, it is alleged that the Complainant visited the office of the Accused wherein it is alleged that the Accused sought some more time and would either replace the cheques with new cheques of other bank account or would give cash to the Complainant failing which the Complainant would present the cheques in question again on or after 20th of January 2018.
2.3 When the Complainant presented the said cheques, hereinafter referred to as the cheque in question through his banker Union Bank of India , Subzi Mandi branch, the same were returned unpaid by the banker of the Accused vide returning memos dated 22nd of January 2018 with the remarks "Funds Insufficient".
2.4 It is alleged that subsequent to the above, the Accused had visited the residence of the Complainant on 3rd of February 2018 and requested the Complainant to accept fresh cheques of his account in Corporation bank, Bhera Enclave, Paschim Vihar branch to show his bonafide and handed over a self/bearer cheque of ₹ 9500 to the Complainant towards part payment of interest but the Complainant Page 3 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 4 of 36 was surprised on 5th of February 2018 when the cashier of the said banker refused to accept the cheque stating that there was no sufficient balance in the account to pay ₹ 9500.
2.5 The Complainant thereafter issued a legal demand notice on 20th of February 2018 through counsel calling upon the Accused to pay the said cheque amount within a period of 15 days from receipt thereof. The said notice is alleged to have been duly served upon the Accused, but it is stated that the Accused failed to pay the aforesaid cheque amount within the statutory period.
2.6 Hence, the present Complaint u/s 138 Negotiable Instrument Act 1881 (hereinafter the NI Act) was filed on 3rd of April 2018 by the Complainant, praying for the Accused to be summoned, tried, and punished for commission of the offence u/s 138 of the Negotiable Instruments Act, 1881. The Complainant has averred that the present Complaint is within the period of limitation and falls within the territorial limits of this Court's jurisdiction; thus, being tenable at law.
Proceedings before the Court
3. Pre-summoning Evidence: To prove a prima-facie case, the Complainant led pre-summoning evidence by way of affidavit Ex. CW-1/A wherein the Complainant has affirmed the facts stated in the instant Complaint.
4. Documentary Evidence: To prove the case, the Complainant has Page 4 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 5 of 36 relied upon the following documents:
a) Promissory note with receipt dated 10th of November 2017, Ex. CW1/1
b) Original cheques bearing no. 753162 and 753163 dated 1st of November 2017 and 25th of November 2017 for a sum of ₹ 5 lakh and ₹ 1 lakh respectively, both drawn on Vaish Coop. Bank, Jwala Heri Branch, Ex. CW1/2-3.
c) Original cheque return memos dated 28th of November 2017, Ex. CW1/4-5 and 22nd of January 2018, Ex. CW1/6-
7 (NB: The return memos Ex. CW1/6-7 have been relied upon in the present case to bring it in accordance with limitation).
d) Bearer cheque bearing No. 300658 dated 5th of February 2018 for a sum of ₹ 9500 drawn on Vaish Coop Bank, Jwala Heri Branch, Ex. CW1/8.
e) Office Copy of legal notice dated 20th of February 2018, Ex. CW1/9.
f) Postal receipts and track report with AD Card Ex. CW1/10-18 (Colly).
5. Summoning of the Accused: On finding of a prima-facie case against the Accused, the Accused was summoned on 10th of April 2018 where the Accused appeared before the Court on 1st of February 2019.
6. Framing of notice & plea of defence: Notice u/s 251 Cr.P.C. was framed against the Accused on 2nd of August 2019 to which he pleaded not guilty and claimed trial. The plea of defence of the Accused was recorded where the Accused had stated that he had taken a loan of ₹ 115,000 at interest of 10 percent per month from Page 5 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 6 of 36 the Complainant around the year 2012 and had given the cheques in question as blank signed cheque to the Complainant. It was stated that the other details mentioned on the cheques in question have not been filled by the Accused and that he had repaid a total sum of ₹ 50,000 to the Complainant in cash in the year 2013. The Accused Lastly stated that he owes only the liability of around ₹ 65,000 to the Complainant and not the amount as stated by the Complainant. Receipt of legal demand notice was admitted.
7. Evidence of the Complainant: After the framing of notice, the Accused was granted permission to cross-examine the Complainant. Thereafter, the Complainant was examined as CW1, and Mr. Rohit Vashishth was examined as CW. Both CWs were cross examined and discharged. Thereafter, Complainant evidence was closed, and the matter was listed for statement of the Accused u/s 313 Cr.P.C. r/w Section 281 Cr.P.C.
8. Statement of the Accused: Statement of the Accused was recorded u/s 313 Cr.P.C. r/w Section 281 Cr.P.C on 11th of April 2022 wherein all the incriminating circumstances appearing in evidence against the Accused were put to him to which the Accused largely reiterated the stance taken in the notice of accusation.
9. Defence Evidence: The Accused has not examined any witness in his defence. Thereafter, a separate statement of the Accused to that effect was recorded and defence evidence was closed. The matter was then fixed for final arguments.
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10. Final Arguments: Final arguments were advanced by both sides. I have heard the submissions of the Ld. Counsel for the Complainant as well as the Accused. I have also perused the record.
Legal Position
11. For the application of s.138 of the Negotiable Instruments Act, 1881, the following legal requirements must be satisfied from the averments in the Complaint as well as the evidence of the Complainant: -
(a) That a person has drawn a cheque, on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any legally enforceable debt or other liability;
(b) That the 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;
(c) That the cheque has been returned by the drawee bank unpaid, for the reason that the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by agreement made with that bank;
(d) That the payee or holder in due course has made a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid;
(e) That the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice;Page 7 of 36
Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 8 of 36 11.1. The aforesaid legal requirements are cumulative in nature, i.e., only when all of the aforementioned ingredients are duly proved is the drawer of the cheque deemed to have committed an offence under s. 138 of the Negotiable Instruments Act.
11.2. The provision of s.138 is buttressed by s.139 and s.118 of the Act.
s. 139 of the Act provides that the Court shall presume, that the holder of a cheque received the cheque for the discharge, wholly or in part of any debt or other liability. s.118 of the Act provides inter alia that the Court shall presume, until the contrary is proved, that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
11.3. What follows from the aforesaid is that the offence u/s 138 of the Negotiable Instruments Act operates on reverse onus of proof theory. The presumptions u/s 139 and s. 118 of the Act mandate the Court to draw them, when a given set of facts are shown to exist. The same is evident by the peremptory language "Shall Presume"
used. However, the said presumptions are rebuttable in nature, i.e. it is open for the defence to disprove the same by establishing facts to the contrary.
11.4. In the case of Hiten P. Dalal v. Bratindranath Banerjee 1, the Hon'ble Supreme Court had occasion to examine the confines of the presumption u/s 139 of the Act, wherein it held as follows:
"22. Because both Sections 138 and 139 (..) "introduce 1 (2001) 6 SCC 16 Page 8 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 9 of 36 an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the Accused."
(Ibid. at p. 65, para 14.) (...) The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the Accused adduces evidence showing the reasonable possibility of the non- existence of the presumed fact.
Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the "prudent man".
(...) in the case of a mandatory presumption, the burden resting on the Accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the Accused is reasonable and probable. It must further be shown that the explanation is a true one. ........ Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted". (emphasis supplied).
11.5. Also, in the case of Rangappa v. Sri Mohan 2, it was held that:
"(..)we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. (..)
28. 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 2 (2010) 11 SCC 441 Page 9 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 10 of 36 presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities".
(...) 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(...)"(emphasis supplied) 11.6. With regard to the factors taken into account for rebutting the presumption u/s 139 read with s.118 of the Act, the judgement of Hon'ble Delhi High Court in V.S. Yadav v. Reena 3 assumes importance, wherein it was held that:
"Mere pleading not guilty and stating that the cheques were issued as security, would not amount to rebutting the presumption raised under Section 139 of N.I. Act. (...) The Accused, by cogent evidence, has to prove the circumstance under which cheques were issued". (emphasis supplied) Appreciation of evidence
12. Now I shall proceed to deal with the legal ingredients one by one and give my finding on whether the evidence on record satisfies the legal ingredient in question or not.
(a) That a person has drawn a cheque, on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any legally enforceable debt or other liability 12.1.This condition pertains to the issuance of the cheque itself. It is pertinent to note that the Accused, in his notice of accusation has 3 CRL. A. No. 1136 Of 2010 Page 10 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 11 of 36 admitted his signature on the cheque in question. Further, the cheque has been drawn on the account of the Accused. This leads to drawing of an inference u/s 139 read with s.118 of the Act, that the cheque was issued in discharge of a legally recoverable debt or other liability.
12.2.In the case of Bharat Barrel & Drum Mfg. Co. v. Amin Chand Pyarelal 4, it was held:
"12. (...) the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. The Court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. (emphasis supplied)"
12.3. Also, in the case of Kumar Exports Vs. Sharma Carpets 5, it was held:
"When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose 4 (1999) 3 SCC 35 5 2009 (2) SCC 513 Page 11 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 12 of 36 of the presumption is over.
The Accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. (...) To disprove the presumptions, the Accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the Accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the Complainant. The Accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The Accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the Complainant, that is, the averments in the Complaint, the case set out in the statutory notice and evidence adduced by the Complainant during the trial. Once such rebuttal evidence is adduced and accepted by the Court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the Complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the Complainant's rescue. (emphasis supplied)"
Page 12 of 36Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 13 of 36 12.4. In sum, it is the defence of the Accused that ₹ 115,000 was taken from the Complainant in 2012 and the cheques in question were issued as undated blank signed security. Ex. CW1/1 was also stated to be executed in 2012 in blank. It is the case of the Accused that the liability was discharged either wholly or in part but the cheques in question were misused by the Complainant.
12.5. Now, in so far as the defence of blank signed/security cheque is concerned, the said aspect is well settled by the case of Bir Singh Vs. Mukesh Kumar 6, wherein the Hon'ble Supreme Court observed and held:
"37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted."
38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the Accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence."
62019 (4) SCC 197 Page 13 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 14 of 36 12.6.The presumption, having been raised against the Accused, it falls upon the Accused to rebut it. The Accused has chosen to do so by cross-examining CW-1 and CW-2.
12.7.CW - 1 and CW - 2 have deposed in line with the averments of the Complainant, the annexed documents and the testimonies have stood the test of cross-examination and material particulars, save and except the aspects underscored by the defence at the time of final arguments and which shall be dealt with in the succeeding paragraphs.
12.8.The Ld. Counsel for the Accused has taken a two-pronged strategy at the time of final arguments - Firstly, on the facet that the case of the Complainant is opposed to the standard of a reasonable man and secondly, relying upon the statutory bar of limitation to contend that the liability became time barred on date of presentation of the cheques in question.
12.9.With regard to the first aspect, it is contended that the advancement of the loan by CW - 1 itself becomes doubtful and the case is opposed to the standard of a reasonable man. It is stated that CW - 1 has stated that he has only pension in rental income and the amount was arranged from his banker. It is also submitted that as per Ex. CW1/D1, the amount at Point A was admittedly withdrawn in cash and handed over to the Accused, in contravention of law as the same was an amount of cash in excess of ₹ 20000 and the same had to be transferred by way of means other than cash. It is also Page 14 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 15 of 36 stated that CW - 1 has admitted that he had given loans to other persons apart from the Accused and has not shown the loan transaction in his ITR despite being an income tax payee.
12.10. On the aspect of advancement, more than enough evidence is there on record. The advancement of the loan is supported by Ex. CW1/1 which has been admitted to be executed by the Accused. In addition, both CW - 1 and CW - 2 have categorically deposed in respect of the advancement and have corroborated each other and their testimonies have stood the test of cross-examination. Hence, the advancement itself is rendered beyond question and there is no subsequent/contemporaneous conduct of the Accused to give rise to any doubt regarding due advancement and the decision in Maya Jain Vs. Yash Chhabra 7 is rightly relied upon by the Complainant.
12.11. In such circumstances, whether the loan could have been advanced directly by way of bank transfer can scarcely be of relevance as it is up to the parties to decide as to how the transact with each other. Advancement of such loans by way of cash in contravention of Income Tax laws would make the assessee liable under the said Act without having any bearing on the recoverability of the debt for the purposes of s.138 of NI Act, as held in Guddo Devi @ Guddi Vs. Bhupender Kumar 8. The decision of Shri Shyam Sunder Vs. Sohan Singh 9 and Sugunan Vs. Thulaseedharan 10 relied upon by 7 MANU/DE/1308/2015 8 Crl. Rev. P. 1246/2019, DelHC 9 RFA 189/2015 DelHC 10 MANU/KE/2223/2014 Page 15 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 16 of 36 the Complainant are also on the same point.
12.12. Further, the mere fact that a person has advanced loans to some persons other than the drawer will not ipso facto make him a moneylender. No evidence was led to even remotely establish the said fact. Mere advancement of loan to the Accused (with or without interest) would not ipso facto make the Complainant a moneylender. Moreover, s.3 of the Punjab Registration of Moneylenders Act bars only a civil suit and not a prosecution u/s 138 of the Negotiable Instruments Act, as has been held by the Hon'ble Delhi High Court in Kajal Vs. Vikas Marwah 11. The decision of Kampa Wati Devi Vs. Basant Rai 12 relied upon by the Complainant is also on the same point. Even if one proceeds on the assumption that the Complainant is a moneylender, the debt will not cease to be recoverable under a prosecution u/s 138 of the Negotiable Instruments Act.
12.13. As regards not showing the said loan in the ITR, the said fact would be relevant only when the said loan is not established independently by way of cogent evidence, as held in Sheela Sharma Vs. Mahendra Pal 13. However, when the factum of advancement has been duly established by way of the documentary and oral evidence on record, the failure to show the said transaction in the ITR would scarcely be of relevance as a factor to rebut the case of the 11 Crl. A 870/2013. The judgement of Manoj Karwasara Vs. Parhlad Soni, MANU/PH/0594/2020 relied upon by the Complainant is also on the same point 12 MANU/DE/0146/1967 13 2016 SCC OnLine Del 4696 Page 16 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 17 of 36 Complainant.
12.14. On the aspect of Ex. CW1/1 promissory note, it is contended that the same does not speak of any cheque that was given contemporaneous to the said transaction against the liability under the note. It is also stated that even though the Accused has admitted the execution of the note, the contents of the note have been forged and fabricated by the Complainant. It is also submitted that while there were two witnesses to the promissory note, only one witness was called, who is CW - 2 and the said witness is an interested witness, keeping in mind the prior landlord - tenant relationship existing between CW - 1 and CW - 2.
12.15. On this plea, it is pertinent to note that there is not an iota of evidence on record in support of the said plea except the mere bald statement of the Accused and the same cannot be taken into account keeping in view the decision of V.S. Yadav v. Reena 14. The Accused was not able to bring any cogent evidence or even shake the testimony of the Complainant and his witnesses regarding due execution of the note and the advancement of money under it. Both CW-1 and CW-2 have deposed in respect of contemporaneous handing over of the post-dated cheques and even otherwise, such an act is neither opposed to nor inconsistent to the averments in Ex. CW1/1 regarding the underlying liability. The fact that there were two witnesses to the promissory note and only one witness was 14 supra Page 17 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 18 of 36 called would make no difference to its admissibility is evidence is there is no provision of law mandating that both of the said witnesses have to be called to depose to make the document admissible.
12.16. Further, the mere fact that CW - 2 was at some point of time, the tenant of CW - 1 would not ipso facto make the witness as an interested witness. No evidence whatsoever has come on record to point any finger of partiality or untruth in the testimony of CW - 2. There is no rule of law which states that the testimony of even an interested witness is to be discarded outright. It is the duty of the Court in every case to sift the grain from the chaff and reach a conclusion on the basis of the materials and testimony on record.
12.17. When the Accused has admitted the execution of the pro-note as well as the signature on the cheques in question, the burden to disprove the existence of any liability is upon the Accused and not on the Complainant. It is the Accused who has to establish the plea on the basis of the materials brought forth by the Complainant as well as independent evidence, if any. To that extent, the reliance placed by the Complainant on the decisions of Gaurav Omprakash Jaju Vs. Shri Shakti Fabrics 15 and Santosh Mittal Vs. Sudha Dayal 16 is well merited. Thus far, the pleas advanced by the defence do not inspire confidence in the mind of the Court. However, it is the plea of limitation which takes the case of the Complainant 15 MANU/MH/0162/2010 16 MANU/DE/2070/2014 Page 18 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 19 of 36 beyond the pale of maintainability.
12.18. On the aspect of limitation, let's first examine the allegations in the Complaint. It is the case of the Complainant that the loan was advanced as a friendly loan on 10th of November 2014 and the promissory note, Ex. CW1/1 was also executed simultaneously with receipt. It is pertinent to note that execution of Ex. CW1/1 is admitted by the Accused but it is the case of the Accused that it was executed in blank in 2012 and the money itself amounting only to ₹ 1.15 lakh was also advanced in 2012. It is also worthy of note that the Accused was not able to bring any cogent material on record in support of any of the said pleas whereas the case of the Complainant is backed by Ex. CW1/1, Ex. CW1/D1 and the testimony of CW- 2, which has gone unrebutted qua the advancement of the loan and execution of Ex. CW1/1. Hence, the said preliminary pleas agitated on behalf of the defence don't hold much water.
12.19. Going by the allegations in the Complaint and the attendant documents, there are two aspects which would have grave and important bearing as to whether there was any legally enforceable or debt or other liability under the cheques in question and upon which points limitation is to be examined - Firstly in respect of the cash loan advanced on 10th of November 2014 and Secondly in respect of the promissory note dated 10th of November 2014. In respect of the first aspect, i.e., the cash loan advanced on 10th of Page 19 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 20 of 36 November 2014, the same is governed by Article 19 17 of the Limitation Act, 1963 and the limitation period to recover the cash loan would commence from the date of advancement and would have expired on 10th of November 2017.At this stage, it is pertinent to mention at this stage that the judgement of Satish Kumar Vs. Reena Bhowmik 18 cited on behalf of the Complainant and which had held that the residuary Article 113 of the Limitation Act, 1963 would be applicable, was held to be per incuriam and departed from in the decision of Mr. Dev Ranjan Mittra Vs. Aditya Barna Mittra 19.
12.20. The next aspect to be considered is the limitation in respect of the amount indicated on Ex. CW1/1 promissory note. The Ld. Counsel for the Complainant has stated that Article 34 20 of the Limitation Act, 1963 is applicable whereas the Ld. Counsel for the Accused submits that Article 35 21 is applicable. The Ld. Counsel for the Complainant submits that the limitation will run only on demand or after the expiry of three years from 1st of November 2014 as stated on Ex. CW1/1.
12.21. For this purpose, let us first examine the wordings of the rather concisely worded promissory note which states -
1719. For money payable for money lent. Three years. When the loan is made.
18MANU/DE/2394/2012 19 DHC - Neutral Citation 2023:DHC:4027, CS(OS) 440/2020 20
34. On a bill of exchange or promissory note payable at a fixed time after sight or after demand.Three years. When the fixed time expires.
2135. On a bill of exchange or promissory note payable on demand and not accompanied by any writing restraining or postponing the right to sue. Three years. The date of the bill or note.
Page 20 of 36Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 21 of 36 "I/we promise to pay Sh. Dal Chand Yadav on demand or order the sum of ₹ 600000 (six lakh only) with interest at the rate of 12% p.a within 3 years (three years) for value received in cash dated 10th of November 2014 on 10th of November 2014."
(emphasis supplied)."
12.22. The plain reading of the instrument is clear in its meaning and there is no ambiguity when the instrument is read as a whole. It is clear that the amount of ₹ 6 lakh is payable "on demand or order" with interest "within 3 years" for value received in cash and on 10th of November 2014. The term "within" is designedly used in contradistinction to "after". The instrument says what it means and absent anything to the contrary, "on demand or order" is to be read in conjunction with 10th of November 2014 and "within 3 years"
and not otherwise. When read in such a manner, the instrument is payable on demand or order and such demand or order is to be made within (3 years of execution) and not after sight/demand or any fixed time thereafter. Similarly, the instrument doesn't contain any writing restraining or postponing the right to sue. Even the Complaint at Para 2 mentions that the loan advanced on 10th of November 2014 was returnable within a period of three years. In these circumstances s.35 of the Limitation Act, 1963 is clearly applicable and the period of limitation commences on execution of the instrument and expires on 10th of November 2017 and any contrary interpretation is neither borne by facts nor evidence and deserves to be rejected.
12.23. When this stage is reached, it is quite clear that the cheque Ex.Page 21 of 36
Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 22 of 36 CW1/3 bears a date of 25th of November 2017, which is much beyond the expiry of period of limitation, which expired on 10th of November 2017. Thus, the amount under the said cheque would not fall within the category of legally enforceable debt or other liability or even as an independent promise to pay u/s 25(3) of the Indian Contract Act, 1872, as a time barred debt does not fall into the said category 22.
12.24. No doubt, time barred debt would come within the purview of Section 25(3) of the Indian Contract Act. The promise to pay a time barred debt is valid and enforceable, if it is made in writing and signed by the person to be charged therewith. But it is clear from Section 138 of the Negotiable Instruments Act that in order to attract the penal provisions in the dishonouring of a cheque, it is essential that the dishonoured cheque should have been in discharge, wholly or in part, of any debt or other liability which is legally enforceable by the drawer to the payee. However, on a closer look, Ex. CW1/2, which purportedly bears a date of 1st of November 2017 is required to be examined as to whether Ex. CW1/2 would constitute an acknowledgement within the meaning of s.18 or payment within the meaning of s.19 of the Limitation Act, 1963 so as to make the Complaint maintainable.
12.25. Now, both s.18 and 19 of the Limitation Act, 1963 operate to grant a fresh period of limitation in specific circumstances outlined 22 As a time-barred debt would not be legally enforceable debt - Sasseriyil Joseph v. Devassia, 2000 SCC OnLine Ker 460 Page 22 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 23 of 36 therein. While s.18 commences a fresh period of limitation from the date of an acknowledgement in writing and signed by the person or his agent and against whom the right etc. is claimed, s.19 commences a fresh period of limitation from the date of any payment on account of debt/interest/legacy by the person liable or his agent. In both situations, it is pertinent to note and cannot be emphasized enough, that such acknowledgement or payment must be made by the person liable or his agent during the subsistence of the period of limitation and not otherwise.
12.26. But things start getting murkier when a cheque issued by a drawer is made the subject of an acknowledgement/payment in respect of the original debt due to the creditor. Whether such cheque was given undated or not, whether the cheque was given under the express stipulation that it be not presented till a particular time or not (i.e., post-dated) and whether such cheque was honoured or dishonoured are all factors which have important bearing on the question as to whether such a cheque would constitute acknowledgement or payment to compute a fresh period of limitation in favour of the Complainant.
12.27. In the case of Bela Goyal Vs. VIIPL - MIPL JV 23 relied upon by the Complainant, it was the contention of the drawer that three undated cheques in possession of the Complainant were presented in May 2016 and their subsequent dishonour was relied upon to get 23 CS (COMM) 1217/2018 Page 23 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 24 of 36 a fresh period of limitation for a liability incurred on 30.03.2015 so as to make the suit filed on 31.10.2018 within limitation. The Court had held that a dishonoured cheque would constitute and acknowledgement within the meaning of s.18 of the Limitation Act, 1963 and a fresh period of limitation commences from the date of dishonour. Qua the issue of authorization to fill up the undated cheque, the Court had held that in absence of any written statement filed by the drawer, the said plea cannot be agitated.
12.28. During the course of discussion in the aforesaid judgement, the judgement of Hotel Diplomat Vs. Folio Holdings 24 was also adverted to, which had held that when an undated instrument is given and the date is put by the payee, with the consent/instruction of the drawer (emphasis supplied), then that date which is ultimately put on the cheque and in consonance with the authorization of the drawer, would be the date of acknowledgement. It is pertinent to note herein that in both of the aforesaid cases, the cheques were presented by the payee during the subsistence of limitation period and not thereafter.
12.29. Thus, the position regarding handing over a duly filled up cheque or undated/blank instrument during the subsistence of limitation and filled up/presented subsequently under the authorization of the drawer is clear. Irrespective of when such cheque is presented during the subsistence of limitation period of the original debt, the 24 2012 SCC Online Del 4463 Page 24 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 25 of 36 payment (in case it is honoured) or acknowledgment (in case it is dishonoured) will relate back to the date mentioned on the instrument, in all cases when the instrument is accepted by the payee as unconditional payment 25.
12.30. When a cheque is issued as a post-dated cheque or when the cheque is directed to be presented at a future date or on instructions of the drawer, as such a cheque is conditional payment. In that case, the earliest date on which the payment could be made (i.e., the instrument could be presented and was presented for encashment) would be the date when the conditional acceptance of post-dated cheque becomes actual payment, when honoured, as held in Jiwanlal Achariya Vs. Rameshwarlal Aggarwalla 26. As a necessary corollary, if such a post-dated cheque is dishonoured on presentation, the resulting acknowledgement would also relate to the date of presentation and not otherwise.
12.31. From the principles and the judicial pronouncements culled out above, it is clear that merely because a cheque was issued by the drawer and is lying in the possession of the payee, would not mean that it ipso facto constitutes an acknowledgement of the debt or payment within the meaning of the Limitation Act, 1963 to automatically grant a fresh period from the date on the cheque. What is required additionally is the action of the payee in presenting the 25 i.e., not post-dated or under any other similar stipulation 26 AIR 1967 SC 1118. It is pertinent to note that in this case as well, the cheque was presented during the subsistence of limitation period Page 25 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 26 of 36 cheque and applying it against the debt due during its currency. It is the result of the presentation which has been regarded by the Court to be either an acknowledgement or payment, as the case may be.
12.32. Thus, for granting the benefit of a fresh period of limitation, such a post-dated cheque must be presented for encashment during the subsistence of limitation because if presented beyond such period, the acknowledgement/payment would not satisfy the requirements of the Limitation Act, 1963 and the NI Act cannot override the provisions of Limitation Act, 1963 to artificially extend the period of limitation beyond the prescribed period on the ground that the instrument has not gone stale even beyond the period of limitation. Any instructions of the drawer, to present the cheque beyond the date appearing on the cheque, unless duly proved, will not come to the aid of the payee and even such date must be within the prescribed period of the original debt as the legally enforceable debt or other liability forms the substratum of the offence u/s 138 of NI Act.
12.33. To illustrate by way of example - for a loan advanced on 01.01.2003, the period of limitation would lapse on 01.01.2006. Now, if in this case, the drawer subsequently issued a cheque or an undated cheque issued to the payee was filled up with a date authorized by the drawer, say 01.11.2005. Then, as per the precedents cited above, to bring it within the four corners of s.18/19 of the Limitation Act, 1963, the cheque can be presented till 31.12.2005. In such a case, the payee may prove that the drawer had Page 26 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 27 of 36 instructed him not to present the cheque before 10.12.2005 and in such a case, the date of acknowledgement/payment shall stand advanced to the date instructed by the drawer but the fact remains that even such date must be within the four corners of limitation period.
12.34. This is so because to constitute an acknowledgement/payment, the same has to be made during the subsistence of the period of limitation and not otherwise. When the cheque is presented in such a manner and is honoured, the same would constitute payment having reference to the date of its encashment and if the same is dishonoured, the same would constitute an acknowledgement relating back to the date of the cheque, i.e., 01.11.2005. Now, if the cheque itself is presented on 10.01.2006, i.e., after expiry of initial period of limitation its honour/dishonour would not come within the purview of payment/acknowledgement as the same has been made after the expiry of limitation period and the dishonour of such a cheque would result in revival of the debt and rendering it time barred as held in CIT Vs. Ogale Glass Works 27, instead of commencing any fresh period of limitation 28 12.35. Similarly, if in respect of the fact situation adverted to in the preceding paragraph, the drawer issues a post-dated cheque dated 20.12.2005 simultaneously to the debt incurred on 01.01.2003, the payee has no option other than to present the post-dated cheque on 27 (1955) 1 SCR 185 28 See Chintaman Dhundiraj Vs. Sadguru Narayan Maharaj, AIR 1956 Bom 553 Page 27 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 28 of 36 maturity. In such a case, the payee is bound so to do and present the cheque on 20.12.2005 or at any date before 31.12.2005 and no subsequent instruction of the drawer to present it beyond 31.12.2005 would help the payee as the law of limitation is not contingent on the sweet will of the parties and once expired, the period cannot be revived. Whether such an instruction from the drawer would amount to a separate acknowledgement is a fact to be seen in an appropriate case as the same is not in issue in the present case, as there is no evidence to that effect adduced on behalf of the Complainant.
12.36. The judgement of DCM Financial Services Vs. Sunil Kala & Co 29 which was also referred to in Bela Goyal Vs. VIIPL - MIPL JV 30 assumes importance in the current context wherein it was held:
That when the creditor is prevented by the debtor from presenting the cheque before a particular date, it is the date on which the cheque can be presented which shall be deemed to be the date of the cheque. In that case a cheque dated 14.11.1995 was delivered by the defendant to the plaintiff. He, however, requested the plaintiff not to present the cheque since they did not have arrangement for its encashment. The cheque was eventually encashed on 12.12.1995. It was held by this Court that 12.12.1995 and not 14.11.1995 would be considered as the date of payment by the defendants to the plaintiff. The Court rejected the contention of the defendant that since the cheque could have been presented to the bank for the first time on 14.11.1995, 29 2002 (97) DLT 700 30 supra Page 28 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 29 of 36 that would be the date of payment.
12.37. In the case of Chintaman Dhundiraj vs Sadguru Narayan Maharaj Datta 31 wherein debt was contracted under a promise to repay it by October 1939 but cheque was given dated 25.09.1942 and 10.11.1944, the Court held:
"By the delivery of the cheque dated 25-9-1942 it may be that the debt due by Narayan Maharaj was conditionally satisfied. But when the cheque was dishonoured, there was a revival of the debt and the suit had to be filed within the normal period of limitation."
12.38. Coming back to the facts of this case, what is alleged by the Complainant is that the cheques in question were issued post-dated, i.e., dated 01st of November 2017 and 25th of November 2017 on the date of execution of the promissory note itself, i.e., on 10th of November 2014. Such cheques would come within the category of post-dated cheques issued against liability and their dishonour would not come within the purview of acknowledgement for the following reasons - Firstly, the cheques in question were admittedly issued post-dated by the drawer simultaneously to the incurring of debt and as such, the earliest date when the cheques could have been presented and actually encashed or dishonoured would be the date of actual payment or acknowledgement, as the case may be. Secondly, to constitute acknowledgement and give rise to a fresh period of limitation, the post-dated cheques must be of a date within 31 AIR 1956 Bom 553 Page 29 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 30 of 36 the period of limitation and presented for encashment during the subsistence of limitation period and the result thereof would constitute either payment or acknowledgement depending on whether the instrument is honoured or dishonoured.
12.39. However, when a post-dated cheque is issued contemporaneously with the incurring of debt, clearly, the payee is prevented from presenting the cheque at any date before the date appearing filled up therein. The said cheque would amount to conditional payment having effect to the earliest date on which the payee could have realized the cheque which he had received as conditional payment (i.e., the date appearing on the post-dated cheque), if he had presented the same and had it been honoured 32. But in case of dishonour, the debt revives the debt and the creditor may consider the instrument as waste paper and resort to his original demand 33 (which must be within limitation).
12.40. But the same is not the case in the present matter. Both the cheques in question were presented together in two batches - Firstly, on 28th of November 2017 and Secondly, on 22nd of January 2018. The presentation of 22nd of January 2018 is being relied upon by the Complainant for the purposes of limitation in instituting the present case. Clearly, both dates of presentation are beyond 10th of November 2017 and as such no fresh period of limitation on account of their dishonour can be said to commence on account of 32 As held in Jiwanlal Achariya vs Rameshwarlal Agarwalla, 1967 AIR 1124 33 See The Commissioner Of Income-Tax vs Messrs Ogale Glass Works Ltd, 1954 AIR 429 Page 30 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 31 of 36 acknowledgement as the same has not been made during the subsistence of limitation period.
12.41. A post-dated cheque fits into the four corners of being a conditional payment, which either becomes a payment or acknowledgment when the instrument matures on the specified date. The fructification of the post-dated cheque into a payment or acknowledgement is wholly dependent upon the act of the payee in presenting it. Hence, the payee has to take care and accept such cheques which are presentable during the subsistence of limitation and not otherwise.
12.42. Similarly, the bearer cheque Ex. CW1/8, though not subject matter of the present case but put forth as an additional fact, is dated even later, i.e., 5th February 2018, when the limitation period under the original debt has already lapsed. Moreover, there is no cogent evidence or any mark on the same indicating that it was ever presented for encashment. Hence, the same will neither amount to acknowledgement nor to payment and remains a bare and bald narration of collateral facts.
12.43. What transpires from the above discussion is that if the Complainant is to seek the benefit of a fresh period of limitation, he had to present Ex. CW1/2 prior to 10th of November 2017, which would have granted the benefit of a fresh period of limitation to the underlying debt for a further period of three years and then, both Ex. CW1/2 & 3 would have represented an underlying legally enforceable debt or Page 31 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 32 of 36 other liability.
12.44. Even though a vague averment is made in Para 4 of the Complaint that the cheques in question were first presented on 27th of November 2017 and after 20th January 2018 on the instructions of the Accused, but there is no independent evidence/document forthcoming to establish such a course of dealing or restriction imposed by the Accused except the ipse dixit of the Complainant himself. A mere averment to that effect is not sufficient to bring the case in line with the decision in DCM Financial Services Vs. Sunil Kala & Co 34, as held in Makalu Impex Vs. Vivek Nagpal 35 12.45. Hence, there was no legally enforceable debt or other liability under the cheques in question for which they could have been presented on the date of presentation.
12.46. It has been pointed out by the Ld. Counsel for the Complainant that even though the Accused has taken the defence that the Complainant had misused the cheque in question, the Accused has not demanded for the return of the cheques or filed any Complaint against the Complainant in this regard, even after filing of the instant case. It is stated that the Accused did not even care to reply to the legal demand notice or even stop payment instructions. Further, it is stated that the Accused was not able to bring any proof whatsoever to establish that either the loan was advanced in 2012 34 supra 35 2006 LegalEagle (Del) 1544 Page 32 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 33 of 36 for a lesser amount or that it was repaid.
12.47. To examine these contentions in the right perspective, it must first be realised that the burden to establish all the ingredients of the offence and that too beyond reasonable doubt lies upon the Complainant and never shifts. Though the case of the Complainant is initially aided by the presumptions existing in his favour, ultimately the case of the Complainant must stand on its own legs. The Complainant cannot call to his aid and assistance, any inconsistencies, irregularities or infirmities in the defence to support his own case. Further, the standard of proof upon an Accused to prove his defence is not as heavy as that on the Complainant.
12.48. The Accused is not necessarily required to adduce any oral/documentary evidence in his defence. The Accused can very well rely upon the material placed on record by the Complainant or on the cross examination of the Complainant witnesses to probabilize his defence. It is not necessary for the Accused to establish each and every line of his defence to the hilt. It is sufficient if the Accused establishes his plea on a preponderance of probabilities. In the instant case, the Accused has been able to show from the materials on record that admittedly the Complaint does not satisfy the requirement of legally enforceable debt or other liability, thereby rebutting the presumption which was raised initially against the Accused. When this stage is reached, it is immaterial whether any other limb of the defence, is duly proved or remains unauthenticated in the course of the trial. Suffice it to say that once Page 33 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 34 of 36 the presumption is rebutted on any one of the many possible pleas of defence, it is not required to examine the matter from any other angle on presumptive basis.
12.49. Even if the defence of the Accused is held to be inconsistent and an adverse inference 36 is drawn regarding not replying to legal demand notice, the fact remains that the same is an inference and not evidence. An adverse inference cannot tilt the scales in favour of the Complainant when the essential ingredients of the offence have not been established by the Complainant. Hence, the aforesaid contentions advanced from the side of the Complainant are found to be without merit.
12.50. The upshot of the above discussion is that the Accused has been able to cast a reasonable doubt on the case of the Complainant by establishing his defence on a preponderance of probabilities. Now, the onus shifts back upon the Complainant to prove the existence of a legally enforceable debt or other liability. Considering the evidence already available on record, the Complainant has miserably failed to discharge the said onus. Accordingly, the said ingredient remains unfulfilled as against the Accused.
(b) That the 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;
12.51. This requirement is satisfied on a perusal of the cheques in question 36 u/s 114 of the Indian Evidence Act, 1872 Page 34 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 35 of 36 Ex. CW1/2-3 which bears date of 1st of November 2017 & 25th of November 2017 respectively and the return memos Ex. CW1/6-7 which bear the date of 22nd of January 2018. The defence has led no evidence to controvert the same and hence, this ingredient stands fulfilled as against the Accused.
(c) That the cheque has been returned by the drawee bank unpaid, for the reason that the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by agreement made with that bank 12.52. s. 146 of the Negotiable Instruments Act, 1881 provides that the Court shall, on production of bank's slip or memo having therein the official mark denoting that the cheque has been dishonored, presume the fact of dishonour of such cheque, unless and until such fact is disproved. The bank return memo Ex. CW1/6-7 on record states that the cheques in question have been returned dishonoured for the reason "Funds Insufficient". The defence has led no evidence to controvert the same and hence, this ingredient is also fulfilled as against the Accused.
(d) That the payee or holder in due course has made a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid 12.53. As regards the service of legal demand notice, the Complainant has sent the same, Ex. CW1/9 to the Accused. The original postal receipts in respect of the same are already on record as Ex. CW1/10-18. The Accused has admitted receipt of legal demand Page 35 of 36 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 8041/2018 CNR. DLCT020121462018 Dal Chand Yadav V/s Brijendra Arora Page 36 of 36 notice. Hence, this ingredient is fulfilled as against the Accused, being undisputed.
(e) That the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice 12.54. In the instant case, the Accused has admitted receiving legal demand notice, both in the notice of accusation u/s 251 Cr.P.C. and the statement of the Accused u/s 313 read with s.281 Cr.P.C. It is also an admitted position that the Accused has failed to pay the amount under the cheques within the statutory period, on the ground that he does not owe any liability towards the Complainant. Hence, this ingredient stands fulfilled as against the Accused.
Decision
13. Before proceeding to give the final verdict, this Court deems it fit to bring on record its gratitude to both Ld. Counsel for their able assistance throughout.
14. As all the ingredients of the offence are not cumulatively satisfied against the Accused, the Accused Brijendra Arora is hereby Acquitted of the offence u/s 138 of the Negotiable Instruments Act, 1881.
VISVESH Digitally signed by VISVESH Date: 2023.08.07 15:18:13 +05'30' ANNOUNCED IN OPEN (VISVESH) COURT ON 07.08.2023 MM, NI ACT-06, CENTRAL TIS HAZARI COURTS, DELHI Page 36 of 36
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