Delhi District Court
Anil Kumar Sehrawat vs Virender on 4 September, 2024
IN THE COURT OF SH. SIDDHANT KUMAR,
JUDICIAL MAGISTRATE FIRST CLASS (NI ACT)-06,
SOUTH DELHI DISTRICT, SAKET, NEW DELHI
JUDGMENT
DLST020523992019 ANIL KUMAR SEHRAWAT Vs. VIRENDER CT Cases 37553/2019 PS : Safdarjung Enclave Anil Kumar Sehrawat S/o Sh. Ramphal, R/o VPO- Kair, Near Rinky Cable Wala, New Delhi-110043.
..............Complainant Versus Virender S/o Sh. Mange Ram @ Khyali R/o H. No.299, Near Manohar Panna Chaupal, Opposite Karta Master House, Village Kair, New Delhi-110043 .............. Accused Date of registration : 21.11.2019 Date of Judgment : 04.09.2024 Decision : Convicted Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date:
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1. The instant proceedings have originated out of a complaint filed by Mr. Anil Kumar Sehrawat against Mr. Virender for the offense under Section 138, Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act").
2. Brief facts of the complaint are that the complainant and the accused are well known to each other since the last 15 years and also belong from the same village. The accused approached the complainant for a friendly loan of Rs. 4.5 lakhs in August 2018. This amount was given by the complainant in installments through NEFT in the account of the accused as well as by cash.
The bank transactions were done on various dates i.e. Rs. 1.5 lakhs on 02.08.2018, Rs. 1 lakh on 10.09.2018 and Rs.94,500/- on 16.01.2019. Rs. 1,05,000/- was given in cash in January 2019. The total of Rs. 4.5 lakhs was to be returned in October 2019.
3. In discharge of the said liability, the accused issued a cheque no. 005231 dated 09.10.2019 for Rs. 4.5 lakhs to the complainant. The said cheque in question was dishonored vide return memos dated 17.10.2019 with remarks "kindly contact drawer/drawee bank and present again". Legal demand notice dated 24.10.2019 was sent to the address of the accused. As the accused failed to pay within the statutory time period, the present complaint was filed.
4. In support of his case, the complainant had led pre summoning evidence by way of affidavit i.e. Ex.CW-1/1 which Digitally signed by SIDDHANT SIDDHANT KUMAR Date: KUMAR 2024.09.04 03:40:59 CT Case No. 37553/2019 +0530 Anil Kumar Sehrawat Vs. Virender Page No.2 of 14 reiterated the contents of the complaint. He relied upon the following documents filed alongwith the complaint :
(i) The original cheque as Ex.CW-1/A;
(ii) Original return memo dated 17.10.2019 as Ex.CW-
1/B;
(iii) Legal Notice as Ex. CW-1/C;
(iv) Postal receipts as Ex.CW-1/D;
(v) Internet generated tracking report as Ex.CW-1/E.
5. Summons were issued to the accused on 01.02.2020. The accused entered appearance on 28.07.2022 after proceedings u/s 82 Cr.P.C. was initiated against him. As the offense is bailable, the accused was granted bail on furnishing bail bonds and surety. Substance of accusation/notice u/s 251 Cr.P.C. was served to the accused on 29.05.2023. Accused pleaded not guilty but he admitted his signature on the cheque in question. He also accepted that the legal notice was received by him. In his plea of defence he stated that he had kept 10 signed cheques in his van which were stolen and he had also filed a report for the same. He denied giving the cheque to the complainant. He had taken Rs. 1 lakh from the complainant which he claimed to have returned.
6. In view of the nature of evidence sought to be brought on record and the allegations made, the trial proceeded as a summons trial. The accused was allowed to cross examine the complainant u/s 145 (2) of NI Act. The complainant (CW-1) was duly cross examined by Ld. counsel for the accused on 20.07.2023 and 28.08.2023. The complainant was asked Digitally signed by SIDDHANT SIDDHANT KUMAR Date: KUMAR 2024.09.04 03:41:05 CT Case No. 37553/2019 +0530 Anil Kumar Sehrawat Vs. Virender Page No.3 of 14 questions regarding his financial capacity. He denied the suggestions that he had given a loan of Rs. 1 lakh only which the accused had repaid. He also denied the suggestions that he had repaid the amount of Rs. 3,44,500/- to the accused which he took as loan from the accused prior to this case. The complainant was asked to bring on record his bank statement to show the NEFT transactions. On 28.08.2023, the certified bank statements were placed on record as Ex. CW-1/2 (Colly). He again denied the suggestions that the NEFT transaction was a different loan transaction with the accused.
7. The complainant also examined bank witnesses CW-2 and CW-3. The witness placed on record the certified bank statement of the accused Ex. CW-2/1 (colly). She stated that the cheque book of the accused was deleted from their record on 21.08.2019, no record of complaint given by the accused in bank is traceable and the account has been dormant since 16.08.2019. Thereafter, CE was closed.
8. The accused was examined without oath u/s 313 Cr.P.C on 09.01.2024 and all the incriminating evidence was put to him. The accused denied liability for the cheque amount. He denied taking a loan of Rs. 4.5 lakhs from the complainant, rather stated that the loan was of Rs. 1 lakh only which he had returned in cash to the complainant in front of his father. He also stated that the cheque was stolen from his van. The accused chose to lead defence evidence.
Digitally
signed by
SIDDHANT
SIDDHANT KUMAR
KUMAR Date:
2024.09.04
03:41:20
+0530
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Anil Kumar Sehrawat Vs. Virender Page No.4 of 14
9. Ld. Counsel for the accused filed an application to examine the accused as witness. The accused was examined on oath on 08.07.2024. In his chief he stated that he had taken a loan of Rs. 2 lakhs from the complainant in 2019 which he returned with interest within 4-5 months. His cheque book was stolen from his van and he had filed a police complaint and a letter to the bank. The Lost Document complaint and letter was placed on record by him as Ex.DW-1/1(OSR) and Ex. DW-1/2 (OSR). The accused was duly cross examined. He was asked about his financial capacity. The accused was confronted with the entries on his bank statement to which he admitted that the complainant had transferred an amount of Rs. 3,44,500/- on different dates as per the bank statement. DE was closed and final arguments were heard.
10. Ld. Counsel for the complainant argued that the cheque was issued by the accused in discharge of a liability arising out of a loan transaction between the parties wherein the complainant gave a loan of Rs. 4.5 lakhs to the accused. Further, counsel pointed out that the accused has admitted his signatures on the cheque and also admitted the legal notice. He argued that the complainant's case is supported by the documentary proof of transaction between the parties i.e. the bank statements of both the complainant as well as the accused showing money was sent to the accused's account. The accused had even admitted to the same. He argued that the defense taken by the accused has not been consistent throughout the trial, thus the accused has failed to rebut the presumptions against him and he is liable to be Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date:
2024.09.04 03:41:33 CT Case No. 37553/2019 +0530 Anil Kumar Sehrawat Vs. Virender Page No.5 of 14 convicted.
11. Ld. Counsel for the accused argued that the complainant has only shown proof of part of the alleged transaction. The amount of Rs. 1,05,000/- given in cash has not been proved. No date has been mentioned when this cash was given, this raises a doubt whether the amount was actually given. Counsel also argued on the point of the reason for dishonor. He stated that the accused had sent instructions to the bank to stop payment as soon as he found out that his cheque was stolen. He pointed out the police complaint as well as a letter to the bank. Counsel relied upon judgment placed on record by him to support his arguments. He further argued that the bank statements show the bank transactions that are part of a different transaction wherein the complainant had taken money from the accused earlier and the transactions were to return that money back to the accused. Counsel concluded his arguments stating that the accused has raised a probable defense by showing that the cheques were never issued to the complainant therefore, the accused is liable to be acquitted.
12. The accused has admitted his signatures on the impugned cheque. He has not disputed that the cheque is of an account maintained by him. The cheque was dishonored and the legal notice was duly received by the accused as admitted by him. The accused did not pay the cheque amount within time and as far as the existence of liability is concerned, since the accused has admitted his signatures, accordingly, this court should raise Digitally signed by SIDDHANT SIDDHANT KUMAR Date: KUMAR 2024.09.04 03:41:41 CT Case No. 37553/2019 +0530 Anil Kumar Sehrawat Vs. Virender Page No.6 of 14 presumption under section 118 and 139 of NI Act that the cheque in question was issued by the accused to the complainant in discharge of legally enforceable debt or liability
13. The presumptions in favor of the complainant in cases u/s 138 NI Act were explained by the Hon'ble Supreme Court in Basalingappa v. Mudibasappa, 2019 SCC OnLine SC 491. The relevant portion is stated below -
"(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defense. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defense. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defense, Section 139 imposed an evidentiary burden and not a persuasive burden."
14. In order to rebut the presumptions, the burden of proof is upon the accused to prove on a preponderance of probabilities that there was no liability for the amount of impugned cheque. Therefore, in the present matter, the onus of proof is upon the accused to raise a probable defense and to rebut the presumption of the existence of a legally recoverable debt. If the accused is Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date:
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successful in rebutting the presumptions against him then the burden of proof shifts towards the complainant to prove his case without the aid of presumptions. Reliance is made upon the judgment of Hon'ble Supreme Court of India in Rajesh Jain v. Ajay Singh Special Leave Petition (Crl.) No.12802 of 2022. The relevant para reads - "Once the presumption under Section 139 was given effect to, the Courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the Court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section
138. If the Court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, without taking aid of the presumption. The Court would then take an overall view based on the evidence on record and decide accordingly".
15. During the course of the trial, the accused has taken two points of defense. Firstly, he has denied issuing the cheque in question to the complainant claiming that his cheques were stolen from his van. Secondly, the accused has stated that there is liability towards the complainant as he has already repaid the loan. Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date:
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16. Learned counsel for the accused contended that the actual reason for the dishonor of the cheque was the issuance of stop payment instructions, which the accused had directed to his bank after the cheques were lost. The counsel relied on a letter dated 20.08.2019, sent to the bank, as evidence. The reason for dishonor stated on the return memo is 'Kindly contact drawer/drawee bank.' When a witness from the accused's bank was summoned, it was testified that the bank has no record of any complaint made by the accused. Despite this, it is well- established that a "stop payment" falls within the ambit of Section 138 of the Negotiable Instruments Act, as held in Modi Cements Ltd. v. Shri Kuchil Kumar Nandi 1998 AIR SCW 842. The accused claimed that his cheque book was stolen, and this defense is supported by a Lost Document online complaint made to the Delhi Police. The copy of the lost document complaint is on record as Exhibit DW-1/1. The complaint specifically mentions the cheque book and was registered prior to the filing of the present complaint. Considering that the burden on the accused is only to the extent of a preponderance of probabilities, he is required to raise only a probable defense to rebut the presumption. In the court's opinion, by producing the police complaint, the accused has demonstrated bona-fides and raised a credible defense. Consequently, the accused has successfully rebutted the presumptions against him. Therefore, the court cannot proceed to convict him without further consideration.
17. As the accused has raised a doubt and raised a probable defense, the burden of proof now shifts upon the complainant as Digitally signed by SIDDHANT KUMAR SIDDHANT Date: KUMAR 2024.09.04 03:42:12 CT Case No. 37553/2019 +0530 Anil Kumar Sehrawat Vs. Virender Page No.9 of 14 discussed in Rajesh Jain (supra). The complainant has to prove his case now without the aid of presumptions. Now the complainant's case shall be dealt in detail along with the evidence and testimonies.
18. The primary evidence presented by the complainant consists of bank account statements showing the transfer of funds from his account to that of the accused. The dates and amounts align with the details mentioned in the complaint. The accused, when confronted with these statements, admitted to receiving the funds from the complainant. Therefore, it is an established fact that the complainant transferred money to the accused. The learned counsel for the accused explained that this amount pertained to a separate loan transaction, claiming that the complainant was returning money. However, when this assertion was put to the complainant during cross-examination, it was denied. The accused has alleged the existence of a prior loan transaction to justify the bank transfer, but this has not been substantiated with any evidence, only suggestions were made by the defense counsel. There is nothing on record to support the existence of a prior loan transaction between the parties for which the money was allegedly transferred. Moreover, this claim was introduced merely as a suggestion during the complainant's cross-examination and was not mentioned by the accused during the recording of his defense plea. Throughout the trial, the accused failed to provide a satisfactory explanation for the transactions in his account. Consequently, this aspect of the accused's defense is rejected. Digitally signed by SIDDHANT KUMAR SIDDHANT Date:
KUMAR 2024.09.04
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19. In contrast, the bank transactions, duly certified by the concerned banks, serve as substantial evidence supporting the complainant's claims. The complainant has successfully proven that he transferred Rs. 3,44,500/- to the accused's account as part of a loan. The remaining amount, Rs. 1,05,500/-, was given in cash. After examining the evidence and the cross-examination of the complainant, the court finds no reason to question the transfer of the remaining amount. The complainant was also questioned regarding his financial capacity and the source of funds, to which sufficient explanations have been provided and are on record. The complainant's bank statement further corroborates that he had the financial capacity to provide the remaining amount as well.
20. As discussed in the preceding paragraph, the complainant's case is robust and well-supported by documentary evidence. The accused, however, claimed that he owes no money to the complainant as he has already repaid the amount. This alleged repayment, however, has not been substantiated by the accused. It is also important to note that during the framing of notice under Section 251 Cr.P.C. and the recording of the statement under Section 313 Cr.P.C., the accused stated that he had taken a loan of only Rs. 1 lakh. However, in his sworn testimony as a witness, he deposed that he had taken a loan of Rs. 2 lakhs from the complainant. This inconsistency in the accused's defense is significant. Initially, he claimed the loan was Rs. 1 lakh, but later asserted it was Rs. 2 lakhs. This major Digitally signed SIDDHANT by SIDDHANT KUMAR KUMAR Date: 2024.09.04 CT Case No. 37553/2019 03:42:25 +0530 Anil Kumar Sehrawat Vs. Virender Page No.11 of 14 discrepancy undermines the credibility of his defense. Additionally, the alleged prior transaction mentioned by the accused has neither been proven nor do the details of this transaction align with the evidence presented. Therefore, this court is of the opinion that the defense on this aspect stands rejected as well.
21. The primary contention remaining for the accused is his defense regarding the loss of his cheque book. He claims that the cheque in question was never issued to the complainant, as it was lost. The accused has relied on a lost document report filed with the Delhi Police on 20.08.2019. On one hand, the complainant has a strong case supported by concrete evidence showing the loan transaction between the parties. On the other hand, the accused presents a police complaint claiming the cheques were lost. During cross-examination, the accused was questioned about any further action taken on his complaint, to which he responded negatively. There is no evidence on record to show that the accused ever followed up on this complaint. The evidence must be considered in its entirety, alongside the testimonies provided by the parties at different stages of the trial. His credibility has already been called into question due to inconsistent claims regarding the repayment of the loan. While the accused admits to prior loan transactions, he denies issuing the cheque to the complainant. When all the evidence on record is considered, the accused's claims appear inconsistent.
22. Upon careful consideration of the evidence presented, the Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date:
2024.09.04 CT Case No. 37553/2019 03:42:32 +0530 Anil Kumar Sehrawat Vs. Virender Page No.12 of 14 court finds in favor of the complainant. The complainant has provided consistent and credible evidence to establish the loan transaction, including testimony that aligns with the complaint and corroborating bank statements. The accused, on the other hand, has failed to substantiate his defenses. His claims of loan repayment were not proven, and his statements regarding the loan amount have been inconsistent throughout the trial.
23. In contrast, the defense presented by the accused has been duly rejected. The accused's claim of loan repayment was not substantiated, and his statements regarding the loan amount were inconsistent at different stages of the trial. The accused's defense regarding the loss of the cheque book is unconvincing, particularly given the lack of follow-up on the police complaint and the inconsistencies in his testimony. The accused's credibility has been significantly compromised, and his defense does not stand up to scrutiny when weighed against the complainant's evidence.
24. Thus, on account of the appreciation of facts, evidence, materials on record and the settled legal positions as discussed above this court is of the considered opinion that the complainant has successfully proven his. case. Consequently, the court is presented with a compelling basis to proceed with conviction, holding the accused guilty for the offense under Section 138 of the Negotiable Instruments Act. Accused Virender, is hereby convicted for the offense punishable u/s 138 NI Act qua the cheque in the present case. Digitally signed by SIDDHANT SIDDHANT KUMAR Date:
KUMAR 2024.09.04
03:42:38
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Anil Kumar Sehrawat Vs. Virender Page No.13 of 14
This Judgment contains 14 pages and each page bears the signature of Ld. Presiding Officer.
Copy of this judgment be given free of cost to the convict. A copy of the order be uploaded on District Courts website.
Pronounced in the open court
today i.e. on 04.09.2024
Digitally signed
by SIDDHANT
KUMAR
SIDDHANT
Date:
KUMAR 2024.09.04
03:42:45
+0530
(Siddhant Kumar)
JMFC (NI Act-06) South District,
Saket Courts, New Delhi
04.09.2024
CT Case No. 37553/2019
Anil Kumar Sehrawat Vs. Virender Page No.14 of 14