Delhi District Court
Dev Raj vs Vishnu Enterprises on 22 January, 2025
IN THE COURT OF DEEKSHA RAO,JMFC-04
EAST /KKD COURTS: NEW DELHI
Criminal Complaint No.: 291/2020
DEV RAJ ......... Complainant
Versus
VISHNU ENTERPRISES ............ Accused
1. Name & address of the complainant : Dev Raj, S/o Sh. Tulsi Lal,
R/o 3/12, Trilok Puri,
Delhi-110091.
2. Name & address of the accused : Vishnu Enterprises Through
its proprietor Shri Vishnu
Dev Dadar, Both at
H. No. 200, Block-4, Trilok
Puri, Delhi-110091.
3. Offence complained of : U/S 138, The Negotiable
Instruments
Act,1881.
4. Date of Institution of case : 20.01.2020
5. Plea of accused : Pleaded not guilty.
6. Final order : Acquitted
7. Date of decision of the case : 22.01.2025
CT Case No. 291/2020
Dev RajVs. Vishnu Enterprises Page no. 1 of 11
JUDGMENT
A. Factual Matrix of the case:
1. Briefly stated, the factual matrix of the case as per the complaint is that the complainant and accused were close friends and accused had taken a friendly loan of Rs. 3,00,000/- from the complainant on 07.08.2018. The receipt dated 07.08.2018, was also executed with regard to the said loan. The accused in discharge of his liability issued a postdated cheque bearing no. 099689 of Rs.
3,00,000/- dated 05.09.2019 drawn on Indian Bank, Mayur Vihar, Phase-I, Delhi and had assured the complainant that the said cheque would be encashed at the time of its presentation. Complainant accepted the said cheque and accordingly presented the same with his banker i.e. Punjab National Bank, Trilok Puri, Delhi, but the said cheque was returned dishonoured vide return memo dated 09.09.2019 with the remarks "PAYMENT STOPPED BY DRAWER". Then, the complainant told the accused about the dishonourment of the cheque to which accused requested the complainant to again present the cheque and assured the complainant that this time the said cheque would be encashed. Thereafter, the complainant again presented the said cheque in his bank i.e. Punjab National Bank, Trilok Puri, Delhi, but the cheque was again returned vide return memo dated 18.11.2019 with the remark "PAYMENT STOPPED BY DRAWER". Thereafter, complainant sent a legal demand notice dated 11.12.2019 sent on 16.12.2019 through speed post to the accused asking the accused to pay the amount of the dishonoured cheque to the complainant within 15 days of the receipt of the legal notice. Accused failed to pay the amount within the stipulated time i.e. 15 days from the date of service of notice upon him. Hence, the present complainant.
CT Case No. 291/2020Dev RajVs. Vishnu Enterprises Page no. 2 of 11 B. Appearance of accused, framing of notice and proceedings incidental thereto:
2. The cognizance of offence under Section 138 of the Negotiable Instruments Act, 1881 was taken by the Ld. Predecessor Court and accused was summoned vide order dated 20.01.2020. The accused appeared in Court and was admitted to bail. Thereafter, separate notice u/s 251 Cr.P.C. explaining accusations against the accused u/s 138 of the NI Act was framed on 17.07.2023, to which the accused did not plead guilty and claimed trial. The accused in the notice stated that the complainant was an employee in his proprietorship firm. He used to give the signed blank cheques to him as he used to stay out at the site and he had instructed him to use the same as and when required to make payment. The cheque in question was also handed over to him for same purpose. However, he kept the same and not returned the same to him.
He had never taken any loan from the complainant and that his cheque has been misused by the complainant.
3. Thereafter, the statement of the accused as to the admission/denial of documents was recorded under Section 294 Cr.P.C. The accused in his statement admitted his signatures in the cheques in question. Furthermore, the accused denied the receiving of the legal demand notice, however he admitted the address on the legal notice.
C. Complainant's Evidence:
4. On oral request of accused and considering the facts of the case, cross examination u/s 145(2) NI Act of the complainant witnesses was allowed. In order to prove his case, the complainant examined himself as CW1 and he was cross examined by the accused. Thereafter, CE was closed vide order dated CT Case No. 291/2020 Dev RajVs. Vishnu Enterprises Page no. 3 of 11 20.04.2024. The complainant also relied upon the following documents to prove his case which are as follows:
a) Ex. CW1/1 (Mentioned as Ex. CW1/A in evidence affidavit): Original cheque bearing no. 099689 dated 05.09.2019 amounting to Rs. 3,00,000/- drawn on Indian Bank, Branch- Mayur Vihar, Phase-I, Delhi-110091
b) Ex.CW1/2 (Mentioned as Ex. CW1/B in evidence affidavit): Original Receipt of M/s Vishnu Enterprises, dated 07.08.2018.
c) Ex.CW1/3 (Colly) (Mentioned as Ex. CW1/C and Ex. CW 1/D in evidence affidavit): O r i g i n a l r e t u r n i n g M e m o ( s ) d a t e d 0 9 . 0 9 . 2 0 1 9 a n d 18.11.2019
d) Ex.CW 1/4 (Mentioned as Ex. CW1/E in evidence affidavit): Legal Notice of Demand dated 11.12.2019.
e) Ex. CW 1/5 (Mentioned as Ex. CW1/F and Ex. CW 1/G in evidence affidavit): O r i g i n a l p o s t a l r e c e i p t .
f) Ex. CW-1/6 (Colly) (Mentioned as Ex. CW1/H and Ex. CW1/I in evidence affidavit): Original Track Consignment Report.
5. Thereafter the matter was listed for recording the statement of the accused under Section 313 Cr.P.C read with Section 281 Cr.P.C.
D. Statement of accused under Section 313 Cr.P.C read with Section 281 Cr.P.C:
6. All the incriminating evidences which were against the accused were put to the accused and his statement under Section 313 Cr.P.C read with Section 281 Cr.P.C was recorded on 20.07.2024 wherein the accused stated that the complainant was working under him from 2015 to May 2018. He used to visit out of Delhi for business purposes, so he used to give signed cheques as well as CT Case No. 291/2020 Dev RajVs. Vishnu Enterprises Page no. 4 of 11 letter heads to the complainant for the use in business, in his absence. After the demise of his father, complainant had left the job and he took over the complete work. He then suspected that some of the cheques which were handed over to the complainant were misplaced or were in possession of the complainant. He then gave instructions to the bank to stop the payment of the cheques which were in possession of the complainant including the cheque in question. He further stated that complainant had not made any payment to him and he has no liability towards the complainant. He further denied receiving of the legal notice and also stated that the receipt Ex.CW1/2 was printed by the complainant on the letter head which he had handed over to him as blank after signing the same. He also stated that he wishes to lead defence evidence. However, on 06.08.2024, accused submitted that he does not wish to lead any DE then DE was closed and matter was then listed for final arguments.
E. Final arguments:
7. Final arguments were heard at length from both the parties. Record has been perused.
G. Findings
8. Before going into the facts of the present case, it would be prudent to examine the legal bench mark which is to be satisfied in order to constitute an offence under section 138 NI Act which is as follows:
(i) that the persons must have drawn a cheque on an account maintained by him in a bank for payment of certain amount of money to another person from out of that account,
(ii) that the cheque should have been issued for discharge in whole or in part of any debt or other liability, CT Case No. 291/2020 Dev RajVs. Vishnu Enterprises Page no. 5 of 11
(iii) that the cheque has been presented to a bank within a period of 3 months from the date on which it was drawn,
(iv) that cheque is returned by the bank unpaid because of the amount of money standing to the credit of account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account or any other reason,
(v) that the payee or the holder in due course of the cheque makes a demand for the payment of the said amount by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of the information received by him from the bank regarding the return of cheque as unpaid,
(vi) that the drawer of the said cheque fails to make payment of the said amount to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
9. 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 N. I. Act.
10. Coming to the facts of the case in hand, the first and foremost question that arises is that whether the accused had drawn the cheque in question on an account maintained by him with the banker for payment of any amount of money to another person from out of that account for the discharge, in whole or part, of any legally enforceable debt or other liability. The accused in his statement recorded under section 281 read with section 313 Cr.P.C, in the notice framed under Section 251 CrPC and in his statement under section 294 CrPC has admitted that he had given the cheque in question, the cheque in question bears his signature and has not denied that the same is not drawn on CT Case No. 291/2020 Dev RajVs. Vishnu Enterprises Page no. 6 of 11 his account. He further has stated that the payment qua the said cheque was stopped by him. In light of the admission made, the presumption under section 139 N. I. Act read with section 118 that the cheque in question was issued in discharge of a legally enforceable debt arises against the accused. In the case of Bharat Barrel and Drum Mfg. Co. Vs. Amin Chand Pyarelal (1999), 3SCC 35, 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) Negotiable Instrument Act, 1881 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".
11. As a presumption has arisen against the accused the onus falls upon the accused to rebut it. The accused in order to discharge his onus cross examined CW-1 the complainant.
12. The case of the complainant is that the accused was in the need of money and had taken a friendly loan of Rs. 3,00,000/- on 07.08.2018 from him and with respect to the same the accused had also executed the receipt dated 07.08.2018. Further the accused in discharge of his liability had issued cheque in question. It has been deposed by the complainant in his cross-examination that the accused had demanded the amount of Rs.3,00,000/- on 01/02.08.2018 and he had advanced the same on 06/07.08.2018 in cash which he had withdrawn from the account of his wife. He later deposed that he had earlier wrongly deposed that the amount was withdrawn from the account of his wife CT Case No. 291/2020 Dev RajVs. Vishnu Enterprises Page no. 7 of 11 and that the amount was given from his home. The accused in his notice under section 251 Cr.P.C. has stated that he used to give signed blank cheques to the complainant who was his employee for the purpose of making payment as he used to be out at the site. The complainant kept the cheques and didn't return the same. The complainant has stolen the cheque in question. Further in his statement under section 281 CrP.C. read with 313 Cr.P.C. the accused has reiterated his stand as to the cheque being given to the complainant for business purpose and that after the complainant left the job he suspected the misplacement of some of the cheques by the complainant or they being in possession of the complainant and so he instructed the bank to stop the payment.
13. The main defence on the part of the accused is that he never took any loan from the complainant and that the cheque in question was given to the complainant for business purpose in his absence and the complainant has misused the same. The accused through the cross-examination of the complainant has tried to establish that the loan of Rs.3,00,00/- as claimed by the complainant was never given to him. The complainant in order to show that the accused had taken the loan has produced the receipt Ex.CW1/2, which is on the letter head of the accused and which bears his signature and stamp of his proprietorship firm. The accused in his notice u/s251 and statement u/s 313 CrPC has stated that he used to give signed letter heads to the accused for business purpose. The receipt Ex.CW1/2 as stated above is on the letter head of the accused and bears the seal of his proprietorship firm. The loan was taken by the accused as a friendly loan as alleged by the complainant. If the loan was taken as a friendly loan, then why does it bear the stamp of the proprietorship concern of the accused. No explanation qua the same has been given on behalf of the complainant. Further the complainant on being asked as to how the amount of loan was given deposed CT Case No. 291/2020 Dev RajVs. Vishnu Enterprises Page no. 8 of 11 in his cross-examination first said that the loan was given to the accused after withdrawing the amount from his wife's account and that he can produce the account statement of his wife from 01.08.2018 to 30.08.2018. He however later deposed that he had by mistake stated that the amount was given after withdrawing the same from his wife's account and the amount was given from his home. He also produced the passbook and ITR of his wife Ex.CW1/X1 as per which the amount of Rs.3,00,000 was withdrawn on 21.08.2018 and of Rs.2,00,000/- on 18.08.2018. The complainant clearly contradicted and changed his stance later after realizing that there is no entry as to withdrawal of the amount from his wife's account. The complainant has not produced anything in support of his averment that he had given the amount to the accused in cash from his home. It is well settled that to rebut the presumption under Section 139 of Negotiable Instruments Act, 1881, it is open to the accused to not only rely on the evidence led by him but he can also rely on the materials submitted by the complainant, in order to raise a probable defence as held in Basalingappa vs Mudibasappa' (2019) 5 SCC 48. Further In Kumar Export Vs. Sharma Carpets (2009) 2 SCC 513, the Hon'ble Supreme Court, held as under:
"The accused in a trial under Section 138 of the Act has two options. He can either show that considera- tion and debt did not exist or that under the particu- lar circumstances of the case the nonexistence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the ac- cused should disprove the nonexistence of consider- ation and debt by leading direct evidence because the existence of negative evidence is neither possi-
ble nor contemplated. At the same time, it is clear CT Case No. 291/2020 Dev RajVs. Vishnu Enterprises Page no. 9 of 11 that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To dis- prove the presumptions, the accused should bring on record such facts and circumstances, upon con- sideration 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 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 Section 118 and 139 of the Act."
The admission of signature and other details no doubt creates a presumption under section 139 of NI Act in favour of the complainant however, 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. When an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of preponderance of probabilities. Therefore, if the accused is able to raise the probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. In the case in hand the accused admitted his signature in the cheque in question. He has stated that he used to give signed cheque and letter heads to the complainant for business purpose. The complainant contradicted himself in his cross-examination as to from where and how the loan amount was arranged. Further the complainant has not given any explanation as to why the receipt with respect to the loan was executed on CT Case No. 291/2020 Dev RajVs. Vishnu Enterprises Page no. 10 of 11 the letter head of the accused and why does it bear the seal of the proprietorship concern if the loan was given as a friendly loan. It would also be pertinent to state that it has been deposed by the complainant that the loan was given to the accused at his home and that the receipt was executed by the accused. The complainant nowhere has explained as to when and where the said receipt was executed and where the seal was put on the said receipt. The cheque in question as per Ex.CW1/3 and Ex.CW1/4 has been dishonoured for the reason "payment stopped by drawer." It has been stated by the accused that he suspected that some cheques were in possession of the complainant or that the same were misplaced and hence he gave instruction to his bank to stop the payment. The accused has taken the recourse which a prudent person in case of misplacement/misuse of the cheque would resort to. On the basis of the evidence led the accused has been able to raise a probable defence on the basis of preponderance of probability and has been able to create doubt as to the existence of a legally enforceable debt or liability. The accused has been able to shift the burden upon the complainant and the complainant was then obliged to prove the existence of a debt/liability as a matter of fact which the complainant has failed to establish. Accordingly, in view of the discussion held the accused is held not guilty of the offence under section 138 NI Act and is acquitted.
H. Decision
14. In view of the discussion held and upon careful examination of the complaint and the evidence led the accused Vishnu Dev Dadar is held not guilty of offence punishable under Section 138 of NI Act and is hereby acquitted for the Digitally signed same.
by DEEKSHA
DEEKSHA RAO
RAO Date:
2025.01.22
16:21:17 +0530
Pronounced in the open court ( Deeksha Rao)
on 22nd Day of January 2025 JMFC-04/East/KKD/Delhi
This judgment contains 11 pages in total.
CT Case No. 291/2020
Dev RajVs. Vishnu Enterprises Page no. 11 of 11