Delhi District Court
Ct No.14354/2019 M/S Vaishali Group vs . Kamal Kishore Raghav Page No. 2 Of 21 on 9 August, 2023
IN THE COURT OF
METROPOLITAN MAGISTRATE (NI ACT) - 08
SOUTH WEST DISTRICT, DWARKA COURTS, DELHI
Presided by : Sh. Apoorv Bhardwaj
In case of:-
M/s Vaishali Group ... Complainant
VERSUS
Kamal Kishore Raghav ... Accused
JUDGMENT
a) Sl no. of the case : 14354/2019 (old CC No. 8498/16)
b) CNR of the case : DLSW020203762019
c) Date of institution 28.10.2014
d) Name, parentage and M/s Vaishali Group address of the Through its Proprietor Mr. Brij Arora complainant : S/o Sh. C.B. Arora R/o H.No.C-5C/38B Janakpuri, New Delhi-110058
e) Name, parentage and Kamal Kishore Raghav address of the accused S/o late Sh. M.C.S. Raghav persons: R/o RZ-65A, Gali No.25 & 26 Pankha Road, Vashist Park New Delhi-110046
f) Offence complained of : 138 NI Act
g) Total cheque amount : Rs.26,00,000/-
h) Plea of the accused : Pleaded not guilty
i) Arguments heard on : 26.07.2023
j) Final order : Acquitted
k) Date of Judgment : 09.08.2023
BRIEF STATEMENT OF FACTS FOR THE DECISION
1. Vide this judgment, I shall decide the present complaint filed under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') by the complainant against the accused.
Factual Matrix
2. As per the complaint and affidavit filed by Sh Brij Arora, he is the proprietor of M/S Vaishali Group. He and the accused were having business relations. The accused approached him to get some financial assistance for a collaboration project for constructing plots of third parties. Thereafter he entered into a partnership agreement with the accused on 15.05.2013 as partner with 50% share in investment. He gave a sum of Rs 88,49,667/- approximately to the accused as their share on different dates and occasions for completing the construction of projects as per the agreed terms of the agreement. The accused assured him to return the entire investment amount with profit after completing the projects.
3. Thereafter on 13.05.2014, he and the accused dissolved the partnership and after settling the accounts, the accused was liable to pay a sum of Rs 36,00,000/- to the complainant. Thereafter the accused issued two cheques in discharge of his liability. These cheques form the subject matter of two separate complaints instituted by the complainant against the accused. Both these cases have been tried together and common evidence has been adduced by parties in these cases. The details of the cases along Ct No.14354/2019 M/s Vaishali Group vs. Kamal Kishore Raghav page no. 2 of 21 with the cheques is provided hereunder:-
Cheque Sr. No. of Amount Date Bank
No. Complaint (in Rs)
340517 CC No. 10,00,000/ 09.06.2014 Karnataka
14350/19 - Bank
383425 CC No. 26,00,000/ 13.05.2014 State Bank
14354/19 - of Mysore
4. The cheque bearing no. 383425, which is the cheque in question in the instant case was presented by the complainant to his bank i.e. The Kangra Co-operative Bank, C-29, Community Center, Pankha Road, Janakpuri, New Delhi and was returned unpaid for the reason "Funds Insufficient". vide returning memo dated 21.06.2014. Thereafter, legal demand notice was issued to the accused. The accused sent a reply to the same, however, failed to pay the total cheque amount within 15 days thereof and hence the present case.
5. Upon a prima facie consideration of pre-summoning evidence, cognizance of offence under section 138 NI Act was taken and the accused was summoned. Thereafter, separate notice explaining the accusation was put to the accused under section 251 of The Code of Criminal Procedure, 1973 (hereinafter referred to as 'CrPC') to which he pleaded not guilty and claimed trial. At this stage the following aspects were admitted/denied by him:-
5.1. Signatures on the cheques in question - Admitted. 5.2. Filling up of remaining material particulars on the cheque in question - Denied.
5.3. Receiving the legal demand notice - Admitted. He stated that he had replied to the same.
Ct No.14354/2019 M/s Vaishali Group vs. Kamal Kishore Raghav page no. 3 of 21 In his defence he stated that :-
"I have entered into the partnership with Brij Arora who is proprietor of Vaishali Groups. I had given the blank signed cheque to the complainant for the purchase of material/goods to the third party. I have no legally enforceable liability towards the complainant."
Thereafter, the accused was granted time to move an application under section 145 (2) NI Act. However, despite opportunity, the accused failed to move an application under section 145(2) NI Act. Therefore, the Ld. Predecessor of this court was pleased to close the opportunity of the accused to cross-examine the complainant and the matter was fixed for recording of statement of the accused under section 313 CrPC.
6. Thereafter, a statement of the accused was recorded under section 313 CrPC wherein he stated that he had given blank cheques to the complainant to deliver to one Rishi Pal who was the owner of a materials shops as at that time, he and the complainant were partners. This cheque had been misused by the complainant after dissolution of their partnership firm. As per the dissolution/agreement it was agreed between them that no one will claim any money from each other.
7. Thereafter, the accused moved an application under section 311 CrPC for recalling the complainant for his cross-examination. This application was allowed by the Ld. Predecessor of this court.
8. The complainant was examined as CW-1 and he relied on pre-summoning evidence as post summoning evidence i.e on Ct No.14354/2019 M/s Vaishali Group vs. Kamal Kishore Raghav page no. 4 of 21 evidence by way of affidavit Ex CW1/A and on the following documents i.e. 8.1. Ex CW1/B (partnership deed) 8.2. Ex. CW1/C1-Ex CW1/C9 (payment receipts) 8.3. Ex CW1/D (partnership dissolution deed) 8.4. Ex CW1/E (cheque in question) 8.5. Ex CW1/F (returning memo) 8.6. Ex CW1/G (Legal Demand Notice dated 24.06.2014) 8.7. Ex CW1/H (Postal receipt and courier receipt) 8.8. Ex CW1/I (Tracking report) 8.9. Ex CW1/J (Reply to legal demand notice)
9. Thereafter, CW-1 was cross-examined. During cross examination the following notable points emerged:-
9.1. He admitted that it has not been mentioned anywhere in Ex CW1/B that he will advance/disburse any loan to the accused.
9.2. He admitted that it was mutually decided between the parties that they will share profit and losses in equal share as per clause 2 of Ex CW1/B. 9.3. He had filed only photocopies of payment vouchers Ex CW1/C1 to Ex CW1/C9 (colly).
9.4. He admitted that the partnership agreement Ex CW1/B dated 13.05.2013 was dissolved on 13.05.2014 after taking the two cheques in question. 9.5. He admitted that the factum of handing over and receiving of the cheques in question has not been mentioned anywhere in Ex CW1/D. 9.6. He denied the suggestion that these cheques were not mentioned in the dissolution deed as they infact were Ct No.14354/2019 M/s Vaishali Group vs. Kamal Kishore Raghav page no. 5 of 21 never handed over to him on that date.
9.7. In relation to the work done at the construction site the payments for all the materials and wages were paid by the accused.
9.8. Thereafter, the cross-examination was deferred.
However, despite multiple opportunities, the complainant was not cross-examined further. Hence, the opportunity for the accused to further cross-examine the complainant was closed and his statement was recorded under section 313 CrPC.
It shall observe right here that since the cross-examination of the witness was substantially complete, it shall be read in evidence.
10. In the statement of the accused under section 313 CrPC, the accused admitted that the cheque(s) in question bear his signatures. He admitted the partnership deed Ex CW1/B. He also admitted the dissolution deed Ex CW1/D and stated that after execution of this document all liabilities between him and complainant ceased to exist. He admitted the payment receipt on internal page no. 12 and stated that he had also contributed an equal amount towards the partnership. He also admitted receipts from page no. 13 to 21 (Ex CW1/C1- Ex CW1/C9) but said that all these payments were made during the subsistence of the partnership towards purchase and construction of the properties in the name of the complainant. He flip flopped on the point of receiving the legal notice. Earlier he said that he didn't receive it. Later he said that someone from his family might have received it. He admitted that Ex CW1/J was his reply to the legal demand notice sent by the complainant. He opted to lead Defence Ct No.14354/2019 M/s Vaishali Group vs. Kamal Kishore Raghav page no. 6 of 21 Evidence.
11. However, despite multiple opportunities, the accused failed to lead defence evidence. Ultimately, DE was closed by court orders.
12. During the course of final arguments Ld counsel for the complainant Sh Jitender Singh submitted that the complainant has duly proved his case by placing on record the entire documentary evidence. He also submitted that the accused has failed to rebut the presumption against him and has admitted all of the ingredients of section 138 NI Act. Written submissions were also filed on behalf of the complainant and he relied on the following judgments:-
12.1. Kusum Ingots & Alloys Ltd and Ors v K Pennar Peterson Securities Ltd and Ors., (2000) 2 SCC 745 12.2. P Rasiya v Abdul Nazer and Anr. Crl Appeal No 1233-1235 of 2022 decided by Hon'ble Supreme Court of India on 12.08.2022 12.3. Kalamani Tex & Anr. v P. Balasubramanian 2021 SCC Online SC 75 12.4. Bir Singh v Mukesh Kumar (2019) 4 SCC 197. 12.5. Sanjay Arora v Monika Singh 2017 SCCOnline Del 8897
13. Per contra, Ld Counsel for the accused Sh. Mahesh Kumar submitted that partnership dissolution deed shows that parties had dissolved their partnership by their free will and there was no payment to be made to the complainant as per the same. At his request, he was granted the liberty to file written submissions.
However, no written submissions were filed on behalf of the Ct No.14354/2019 M/s Vaishali Group vs. Kamal Kishore Raghav page no. 7 of 21 accused.
Legal Position:-
14. Before proceeding further to reflect upon the defence and evaluation of evidence, the foremost check point is whether the facts averred by the complainant fulfil the basic statutory requirement for constituting an offence under section 138 NI Act.
To establish the offence under Section 138 of the NI Act against the accused, the complainant must prove the following:-
14.1. The accused must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
14.2. The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
14.3. That cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier;
14.4. That cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
14.5. The payee or the holder in due course of the cheque makes a demand for the payment of the said amount Ct No.14354/2019 M/s Vaishali Group vs. Kamal Kishore Raghav page no. 8 of 21 of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
14.6. The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. (Reliance can be placed on Kusum Ingots (Supra) Being cumulative 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 NI Act.
15. It is apt to discuss that a negotiable instrument including a cheque carries following presumptions in terms of Section 118 (a) and Section 139 of the NI Act.
Section 118 of the NI Act provides :
"Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made:
(a) of consideration :- 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;"
Section 139 of the N.I Act further provides as follows:
"Presumption in favour of holder:- it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability"
Ct No.14354/2019 M/s Vaishali Group vs. Kamal Kishore Raghav page no. 9 of 21 Thus, the combined effect of Section 118(a) and Section 139 of NI Act raises a presumption in favour of the holder of the cheque that he has received the same for discharge, in whole or in part of any debt or other liability.
Whether presumption under section 118 (a) and 139 NI Act can be drawn against the accused
16. Evaluating the facts of the present case in the light of the above provision this court deems it fit to first consider as to whether it is prima facie proved that cheque in question was issued by the accused towards a legal liability in favour of the complainant from the account maintained by him, so as to constitute an offence under section 138 NI Act.
17. To carve out a prima facie case the complainant has filed on record the original cheque as Ex. CW1/E. The said cheque was presented to the bank within a period of three months from the date on which they were drawn and were returned dishonoured for the reasons "Funds Insufficient". The returning memo dated 13.06.2014 bearing the fact of dishonour of cheque in question has been exhibited by the complainant as Ex. CW1/F. The complainant then sent a legal notice, Ex CW1/G dated 24.06.2014 i.e. within the period of statutory requirement of 30 days from the date of receipt of information of dishonour.
18. In the present case the accused has admitted his signatures on the cheque in question. He has also admitted issuing the cheque to the complainant albeit for a different reason. It is an admitted position between the parties that the accused had received the legal Ct No.14354/2019 M/s Vaishali Group vs. Kamal Kishore Raghav page no. 10 of 21 demand notice and replied to the same. Reply is also annexed as Ex CW1/J.
19. These facts suffice in raising the presumption against the accused and in favour of the complainant.
20. When the presumption is raised in favour of the complainant, the burden is shifted on the accused to disprove the case of the complainant by rebutting the presumption. The accused can displace this presumption on the scale of preponderance of probabilities. Lack of consideration or a legally enforceable debt need not be proved beyond a reasonable doubt as is the general rule in criminal cases. The accused has to make out a fairly plausible defence which is acceptable to the court. This the accused can do either by leading his own evidence or by raising doubt /demolishing the material or evidence brought on record by the complainant. Reliance can be placed on Basalingappa v Mudibasappa (2019) 5 SCC 418.
21. Further, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. 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. The accused may Ct No.14354/2019 M/s Vaishali Group vs. Kamal Kishore Raghav page no. 11 of 21 also rely upon circumstantial evidence to shift the burden again on the complainant. [Refer: Bharat Barrel and Drum Manufacturing Company v Amin Chand Pyarelal 1999 SCCOnline SC 188 and Kumar Exports v Sharma Carpets, 2008 SCC OnLine SC 1885].
22. Also, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard or proof. Presumption of innocence as a human right needs to be delicately balanced with doctrine of reverse burden contained in section 139 of NI Act. [Reference can be made to Rangappa v Sri Mohan 2010 SCC OnLine SC 583 and Krishna Janardhan Bhat v Dattatreya G Hegde 2008 (4) SCC 54].
23. Having referred to the above judicial pronouncements, I shall now analyse the record in their light.
Whether the accused has been able to rebut the presumption.
24. Before embarking ahead, it will be pertinent to reproduce the contents of Ex CW1/D (Deed of dissolution of partnership):-
"मैं कमल किशोर और बज ृ अरोड़ा , दोनों अपने होशों आवास में यह Partnership Contract कन्ट्राक्ट जो हम ने दिनांक 15.05.2013 में किया था यह contract आज दिनांक 13 may 2014 को खत्म कर रहे हैं आज के बाद एक दस ू रे से किसी भी project मे लेना दे ना नही है आज के बाद दोनों अपने अपने काम अपने हिसाब से करने के लिए आजाद है कोई किसी से किसी प्रकार की Boundation नही करे गा और ना ही किसी प्रकार के Ct No.14354/2019 M/s Vaishali Group vs. Kamal Kishore Raghav page no. 12 of 21 पैसो का ब्लेम करें गे | प्रोजेक्ट खत्म हुआ या नहीं इसमें क्या लगा क्या नहीं इस बात से कोई लेना दे ना नहीं है आज के बाद कोई भी मरें या जीएं एक दस ू रे से हमारा लेना दे ना खत्म"
25. Ex CW1/D is the best evidence of the intention of the parties. It is an undisputed document placed on the record by the complainant and admitted and relied on by the accused. It is also pertinent to observe that the e-stamp paper on which this document has been executed was purchased on 05.05.2014 by the complainant himself while the dissolution itself has been done on 13.05.2023. This also shows that the document has not been prepared in any rush or hurry, rather the parties and at least the complainant had ample time to think through the entire process. Once the parties have documented their intention, they cannot be allowed to casually contradict the same by oral and unsubstantiated evidence.
26. The case of the complainant is that at the time of dissolution of the partnership the accounts of the partnership were settled and an amount of Rs 36,00,000/- was due against the accused. The cheque(s) in question were handed over to him towards that liability by the accused. There is absolutely no mention of any settlement being arrived between the parties or any cheque(s) having been handed over to the complainant in Ex CW1/D. It also does not appear to be a case wherein the document is merely silent on that aspect. It has been stated in Ex CW1/D in the most unequivocal terms that all dealings between the parties have come to an end and that neither party shall raise any claim of money or seek account of the projects on which they had worked. Once such terms are recorded it becomes highly improbable, bordering almost at the impossible that the accused had agreed to pay Rs Ct No.14354/2019 M/s Vaishali Group vs. Kamal Kishore Raghav page no. 13 of 21 36,00,000/- to the complainant. No prudent person would have affixed his signatures on such a document without first realising his due amount or mentioning that such an amount was due and cheque(s) had been handed over for that purpose. Further, the complainant is not a lay person. He is a seasoned businessman having domain experience. Therefore, the possibility of him not understanding the implications of the wordings of Ex CW1/D which are in utmost plain hindi, is also near impossible.
27. The main defence of the accused is that after execution of Ex CW1/D all liabilities between the parties came to an end. The accused has also raised this defence at the very first available opportunity i.e. when he received the legal demand notice. In the reply to legal demand notice sent by the accused he has taken a specific plea that the cheque(s) in question were handed over to the complainant during the partnership for day-to-day running expenses and that parties had settled all their claims vide deed of dissolution. The deed of dissolution was also annexed alongwith the reply. This has been the consistent and unambiguous defence of the accused at every stage of the trial. Even during the cross-examination of the complainant this aspect was pointed out to him, yet for reasons best known to the complainant, he did not take any steps to explain as to why the terms of settlement as alleged by him in his complaint were not incorporated in Ex CW1/D. Moreover, he did not even aver, let alone prove that how was he entitled to receive Rs 36,00,000/- from the accused at the time of dissolution of the partnership.
28. I have also perused the payment receipts Ex CW1/C1 to Ex CW1/C9 filed by the complainant. The accused has admitted Ct No.14354/2019 M/s Vaishali Group vs. Kamal Kishore Raghav page no. 14 of 21 these receipts, so they stand proved. However, they do not corroborate the case of the complainant. Firstly, they are in the teeth of Ex CW1/D. Secondly, I find the explanation given by the accused that these receipts reflect payments made towards the expenses/functioning of the partnership concern, to be quite reasonable. It had been agreed between the parties in the partnership deed Ex CW1/B that the both parties will equally invest their money in the business. The complainant has also stated in his complaint that he gave Rs 88,49,667/- approx. to the accused on different dates and occasions as his share 'for completing the construction of project'. However, he has not even averred the quantum of money invested by the accused although he has admitted in the cross-examination that payments for all the materials and wages were made by the accused. Therefore, without even broadly disclosing the amount of profits/losses made by the business the complainant cannot claim an amount of Rs 36,00,000/- from the accused. Plainly speaking, to even give a head start to a discussion that whether the cheque(s) were issued towards a legally enforceable debt/liability, the complainant was required to place on record some account statement of the partnership rather than simply stating the amount of investment made by him in the business.
29. Ld Counsel for the complainant has argued that the accused has admitted that the cheques were issued towards settlement at the time of dissolution of the firm during the cross-examination of the complainant. My attention has been drawn to the following suggestion given by Ld. Counsel for the accused to the complainant:-
Ct No.14354/2019 M/s Vaishali Group vs. Kamal Kishore Raghav page no. 15 of 21 "It is correct that the partnership agreement Ex CW1/B dated 15.05.2013 was dissolved on 13.05.2014 after taking two cheques in question in both the complaints"
With due respect, this argument cannot be accepted for the following reasons:-
29.1. Firstly, the suggestions given by a counsel on behalf of the accused cannot bind the accused. Reliance can be placed on the decision of Hon'ble High Court of Delhi in Pawan Kumar v State 2019 SCC OnLine Del 10452 wherein it was observed that:-
"The question whether a suggestion given by the counsel on behalf of the accused can be considered as an admission and bind the accused under Section 18 of Indian Evidence Act came before the Supreme Court in Koli Trikam Jivraj (supra), where it was held as under:--
"18. Therefore, the accused is entitled to the benefit of the plea set up by the lawyer but it cannot be said that the plea or defence which his lawyer puts forward must bind the accused. The reason is that in a criminal case a lawyer appears to defend the accused and has no implied authority to make admissions against his client during the progress of the litigation either for the purpose of dispensing with proof at the trial or incidentally as to any facts of the Ct No.14354/2019 M/s Vaishali Group vs. Kamal Kishore Raghav page no. 16 of 21 case. See Phipson's Manual of Evidence, Eighth Edition Page 134. It is, therefore, evident that the role that a defence lawyer plays in a criminal trial is that of assisting the accused in defending his case. The lawyer has no implied authority to admit the guilt or facts incriminating the accused. The argument of Mr. Nanavati that suggestion put by the lawyer of the accused in the cross-examinations of the prosecution witnesses amounts to an admission under Section 18 of the Indian Evidence Act cannot be accepted." (emphasis supplied) 29.2. Secondly, the very next suggestions put forth by Ld. Counsel for the accused are as follows:-
"It is correct that the facturn of handing over and receiving of two cheques in question has not been mentioned anywhere in Ex CW1/D"
**** "It is wrong to suggest that these cheques were not mentioned in the dissolution deed as they infact were never handed over to me on that date"
29.3. This also shows that the instructions to Ld. Counsel for the accused with regard to the defence of the accused were quite clear. The defence taken by the accused is also very specific. The suggestion given Ct No.14354/2019 M/s Vaishali Group vs. Kamal Kishore Raghav page no. 17 of 21 by Ld. Counsel for the accused appears to be a mistake and the same alone cannot prove the case of the complainant beyond reasonable doubt.
30. The averment made by the complainant in his affidavit has already been found to be contrary to the contents of Ex CW1/D (dissolution deed) by me. I also find the contents of his affidavit to be contrary to Ex CW1/B (partnership deed). It has been stated by the complainant in his affidavit that the accused gave an assurance to return the entire investment amount with profit to the complainant after completing the projects. (Para no. 3, Ex CW1/A). However, record would indicate that the agreement was to share the entire investment/profit/loss in equal proportion. (Para no. 2, Ex CW1/B). Therefore, it appears that the story narrated by the complainant in his complaint was a twisted version of the actual facts.
31. In light of the above discussion, I am of the view that the accused has been able to poke holes in the version of the complainant. The version of the accused that after execution of Ex CW1/D, he was not liable to pay anything to the complainant seems more probable than the version set out by the complainant. Therefore, the onus was on the complainant to prove his case beyond reasonable doubt. The complainant could have taken several steps in this regard. For instance, he could have examined the witness to Ex CW1/D to prove that the cheque(s) in question were handed over at the time of executing the dissolution deed. He could have also shown the accounts of the partnership. Certainly, the amount of Rs 36,00,000/- would not have been arrived at from calculations made in thin air. It must have been supported by Ct No.14354/2019 M/s Vaishali Group vs. Kamal Kishore Raghav page no. 18 of 21 some documentary record. However, no such step was taken.
32. It has also been argued in the written submissions that the accused failed to complete the cross-examination of the complainant or to bring any evidence in his defence despite multiple opportunities. However, as discussed earlier, it is not mandatory for an accused to step in the witness box or adduce direct evidence for rebutting the presumption and the accused can rely on material on record/circumstantial evidence as well. In the present case the accused has been able to disclose a highly probable defence from the stand-point of a prudent person.
33. I have also perused the judgments cited at the bar by Ld. Counsel for the complainant. As far as the legal principles contained in these judgments are concerned, this court has endeavoured to apply them with utmost deference in this case. However, the facts of the present case are quite different from the ones cited by Ld. Counsel for the complainant. For instance:-
33.1. In Kalamani (supra) it was observed that even after raising of presumption, the trial had erred in insisting for further evidence in support of legally enforceable debt/liability. However, in that case the complainant (identified as respondent in the judgment) had placed on record a deed of undertaking in which the accused persons (identified as appellants in the judgment) had admitted their liability. However, in the present case, the document brought on record i.e. Ex CW1/D categorically states that parties had settled all their dues and no liability existed between the parties after Ct No.14354/2019 M/s Vaishali Group vs. Kamal Kishore Raghav page no. 19 of 21 13.05.2014.
33.2. In Sanjay Arora (supra), the accused was not able to bring any evidence to substantiate her defence that she had taken a loan of only Rs 30,000/- from the complainant and parted with her blank signed cheque. It was observed that failure to substantiate the plea taken at the stage of framing of notice under section 251 CrPC shall lead to an order of conviction against the accused. However, in the present case, the accused has been able to substantiate the defence raised by him in view of Ex CW1/D. 33.3. In P Rasiya (supra) also it was observed that initial burden is on the accused to rebut the presumption. In the present case, it has already been discussed that the accused has been able to rebut the presumption against him.
33.4. Ld. Counsel has relied on Bir Singh (supra) to argue that if a signed blank cheque is voluntarily presented to the payee, the payee may fill up the amount and other particulars and that would not itself invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of debt or liability by adducing evidence. At the risk of repetition, it needs to be stated that the accused has discharged that burden as has been outlined in the discussion above.
34. I am also conscious that the case was filed in the year 2014 and it Ct No.14354/2019 M/s Vaishali Group vs. Kamal Kishore Raghav page no. 20 of 21 was subsequently settled by the accused. The accused sought several opportunities for payment of the settlement amount.
Coercive steps also had to be initiated against the accused on more than one occasion. As such, the conduct of the accused during the trial was dilatory. However, the conduct of the accused or the factum of settlement by itself cannot supplant the requirement of proof of guilt in a criminal proceedings.
35. In view of the evidence adduced, documents put forth and arguments advanced by the parties and further in view of the above discussion, the court is of the considered view that the accused Sh Kamal Kishore Raghav is not guilty of offence under Section 138 of Negotiable Instruments Act, 1881 and accordingly, he is hereby acquitted under Section 138 of Negotiable Instruments Act, 1881.
Announced in open court on 09.08.2023 Digitally
signed by
APOORV
Judgment consists of 21 pages. APOORV
BHARDWAJ
BHARDWAJ
Date:
2023.08.09
15:49:35
+0530
APOORV BHARDWAJ
MM-08 (NI Act)
SOUTH WEST:DWARKA COURTS.
N.D/09.08.2023
Ct No.14354/2019 M/s Vaishali Group vs. Kamal Kishore Raghav page no. 21 of 21