Delhi District Court
Sh. Ram Niwas vs Sh. Ravi Mehto on 1 May, 2025
IN THE COURT OF Ms. HIMANSHI TYAGI JMFC(NI ACT) DIGITAL COURT-1,
NORTH, ROHINI COURTS, NEW DELHI
RAM NIWAS S/o Late Sh. DAYANAND
Add:-H.No. 7/25, SECTOR-18, ROHINI
DELHI-110085
................Complainant
Vs.
RAVI MEHTO S/o Sh. PRITAM MEHTO
Add:- E-39/1, KHASRA NO. 664, K-63,
GALI NO. 18, JEEWAN PARK, SAIRASPUR,
DELHI-110042
.......................Accused
JUDGMENT
CNR No. DLNT020222582022 CC NI ACT 2532/2022 Date of Insititution 07.10.2022 Offence alleged Under Section 138 NI Act Plea of the accused Not pleaded guilty Final Order Acquittal Date of Decision 01.05.2025 Digitally signed by HIMANSHI TYAGI HIMANSHI Date: CC NI ACT 2532/2022 TYAGI 2025.05.01 1 of 17 17:43:14 +0530
BBRIEF FACTS RELEVANT FOR THE DECISION OF THE CASE ARE AS UNDER:
(1.) As per the facts mentioned in the complaint, that complainant and accused were in friendly relationship for last ten years and accused took friendly loans from the complainant on various occasions which were duly repaid by the accused in installments upto first week July, 2022. In the second week of July, 2022, the accused again demanded a friendly loan of Rs. 2,50,000/- from the complainant for a very short period of 15-20 days for his urgent personal financial/family needs, complainant gave the said sum of Rs. 2,50,000/- to the accused in cash on 08.07.2022. At the time of receiving the said amount, the accused in discharge of this liability to repay the amount, issued a cheque bearing No.000038 dated 28.07.2022 of Rs.2,50,000/- drawn on HDFC Bank, Branch 336, Mahalaxmi Building, Chandni Chowk, New Delhi-110006 in favour of the complainant with the assurance that the same would be honoured. The complainant presented the said cheque with his banker namely Kotak Mahindra Bank Ltd., Branch No.22, H-3, Sector-18, Rohini, New Delhi, Account bearing No.3612 746892 on 29.07.2022 for its encashment purposes, but the same was returned unpaid/dishonoured with the remarks 'PAYMENT STOPPED BY DRAWER' vide cheque return memo dated 29.07.2022. Thereafter, the complainant sent a legal demand notice dated 12.08.2022 to the accused through his counsel by Speed Post dated 12.08.2022 and through Whatsapp on 20.08.2022. The legal demand notice was duly served upon the accused but the accused refused to pay the amount of the dishonoured cheque till date and hence the complainant filed the present case.
EVIDENCE AND PROCEEDINGS BEFORE THE COURT:
(2.) Upon appreciation of presummoning evidence, accused was summoned by the Ld Predecessor vide order dated 28.10.2022 for an offence punishable under Section 138 of the Act. Thereafter, on the 01.04.2023, notice under Section 251 Cr.P.C. for the offence u/s Digitally signed by HIMANSHI CC NI ACT 2532/2022 HIMANSHI TYAGI TYAGI Date:
2 of 17 2025.05.01 17:43:19 +0530 138 Negotiable Instrument Act was served upon him by the Ld Predecessor to which he pleaded not guilty and claimed trial. Further, he admitted his signatures on the cheque and the receiving of the legal demand notice and stated that he has already made the payment to the complainant. He stated that he had borrowed Rs. 5 lakh from the complainant and gave two cheques as security cheques, each of Rs 2.5 lakh, returned the borrowed amount by way of cheque of Rs 3 lakh and another of Rs. 2 lakh, he asked the complainant to return the security cheque to him but the complainant told him that it could not be found. He also stated that after he gave the complainant a cheque of Rs. 2 lakh, one week later the cheque in question was presented before the bank. Thereafter, the accused was permitted to cross examine the complainant and the matter was listed for evidence.
(3.) The complainant has relied upon following documents- Photo copy of his Aadhar Card Ex. CW-1/1, original cheque Ex. CW-1/2, bank return memo Ex.CW-1/3, copy of legal demand notice Ex. CW-1/4, original speed post Ex.CW-1/5, tracking report Ex. CW-1/6, whatsapp screen shots whereby legal notice was sent Ex, CW-1/7 (colly.) and copy of reply of legal demand notice Ex. CW-1/8. The accused was allowed to cross-examine the complainant and complainant was examined as CW-1 and then cross-examined at length by Ld. counsel for accused. Thereafter, of statement of accused u/c 294 CrPC was recorded. CE was closed vide order dated 19.12.2024 and the same day matter was taken up for statement of the accused u/s 313 Cr.P.C.
(4.) Statement of the accused was recorded u/s 313 Cr.P.C. r/w Section 281 Cr.P.C on 19.12.2024 wherein all the incriminating circumstances appearing in evidence against the accused were put to him and he stated that he was never the tenant of the complainant and he know the complainant as he lived in his colony. He had obtained some loans once or twice from the complainant which he had duly returned. He stated that he had issued two security cheques bearing no. 000038 and 000039 to the complainant at the time of Digitally signed by HIMANSHI HIMANSHI TYAGI CC NI ACT 2532/2022 TYAGI Date:
2025.05.01 3 of 17 17:43:22 +0530 obtaining loan of Rs. 5 lacs and he had repaid the entire loan amount of Rs. 5 lacs to the complainant and despite his demands, the complainant did not return his security cheques and told him that complainant would return the same later after searching for same in his house. He also stated that he signed the cheque and complainant himself filled the said amount. After recording of statement of accused U/s 313 CrPC, matter was listed for DE.
(5.) On 22.03.2025, Ld. Counsel for accused submitted that accused does not wish to lead DE. On the submission, the DE was closed vide order dated 22.03.2025 and the matter was listed for final arguments.
ARGUMENTS:
(6.) During arguments, it was averred by the Ld. Counsel for the complainant that the complainant has proved all the essential ingredients of the offence and accused has failed to rebut the presumption u/s 139 r/w section 118(a) of the Act. He also argued that accused did not file any complaint qua the alleged misuse of his cheque, the evidence produced by the accused in form of cheque leaves is insufficient to discharge his burden of proof and that even if the details of the cheque were filled by the complainant, the present case is still maintainable in light of Section 20 of the Act. He further argued that the accused has failed to raise any probable defence in order to disprove the case of the complainant and therefore accused is liable to be convicted u/s 138 of the NI Act.
(7.) Per contra, Ld. Counsel for the accused reiterated the version of the accused given in answer to the notice u/s 251 Cr.P.C as well as in his statement u/s 313 Cr.P.C. He argued that the accused did not obtain the loan in question from the complainant, the cheque in question was one of the two security cheques given by the accused for the previous loan taken from the complainant which has been now misused and that the accused did not fill Digitally signed by HIMANSHI CC NI ACT 2532/2022 HIMANSHI TYAGI Date: 4 of 17 TYAGI 2025.05.01 17:43:25 +0530 the particulars of the cheque. He also argued that the accused was not required to lead a defence evidence as per the Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 SCC 16 to prove his defence, accused has proved his defence by way of cross examination of the complainant and evidence of complainant suffered from material lapses. He further argued that there is no proof of the friendly loan and that the complainant has failed to prove his case beyond reasonable doubt. He thus, prayed that accused is liable to be acquitted u/s 138 of Negotiable Instruments Act. During arguments, Ld counsel for the accused also moved an application u/s 73 Of the Indian Evidence Act with prayer to the court to compare the signatures of the complainant. The said application would be decided by me during the course of my judgment.
DECISION ALONG WITH BRIEF REASONS:
(8.) I have perused the entire record as well as the evidence led by the complainant as well as the accused. Before finding the conviction of the accused u/s 138 of the Negotiable Instruments Act, it has to be established by the complainant cumulatively that :
(i) the cheque in question was issued by the accused in favour of the complainant in discharge of legally enforceable liability;
(ii) presentation of the cheque to the bank within three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(iii) a demand being made in writing by the payee or holder in due course by the issuance of a notice in writing to the drawer of the cheque within thirty days of the receipt of information from the bank of the return of the cheques; and
(iv) the failure of the drawer to make payment of the amount of money to the payee or the holder in due course within fifteen days of the receipt of the notice.
Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2025.05.01 17:43:28 +0530 CC NI ACT 2532/2022 5 of 17 (09.) It is a well settled principle of criminal jurisprudence that a criminal trial precedes on the presumption of innocence of the accused i.e. an accused is presumed to be innocent unless proved guilty. Thus, in the regular course, the initial burden is on the complainant/ prosecution to prove the guilt of the accused and the standard of proof for the same is beyond reasonable doubt. However, in offences under Section 138 NI Act, there is a reverse onus clause, which is contained in Sections 118 and 139 of the Act. It is pertinent to reproduce Sec.118 and Sec.139 of the N.I. Act here.
(10.) Section 118 of the N.I 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, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration;"
(11.) 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".
(12.) For the offence of Section 138 of the Act, a presumption u/s 118(a) and Section 139 has to be compulsorily raised as soon as execution of cheque by the accused is admitted or proved by the complainant and thereafter the burden is shifted upon accused to prove otherwise. These presumptions shall be rebutted when only when the contrary is proved by the accused i.e. the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a primafacie case for a Digitally signed by CC NI ACT 2532/2022 HIMANSHI HIMANSHI TYAGI 6 of 17 TYAGI Date:
2025.05.01 17:43:31 +0530 party for whose benefit it exists. Presumptions under both the sections i.e. Section 118(a) and Section 139 of N.I. Act are rebuttable in nature. Once Section 139 of NI Act comes into picture, the Court presumes that the cheque was issued in discharge, in whole or in part, of any debt or liability. The effect of the presumption has been explained in a catena of judgments, including the judgments of the Hon'ble Supreme Court in, Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 SCC 16, Rangappa vs. Sri Mohan (2010) 11 SCC 441 and further in the case of Rohitbhai Jivanlal Patel v. State of Gujarat & anr (Crl. Appeal No. 508/19 dated 15.03.2019).
(13.) In the case at hand, the accused, in the notice served upon him under Section 251 CrPC, has admitted his signatures upon the cheques in question and the receipt of the legal demand notice. He also admitted correctness of the bank return memos and postal receipts his statement u/s 294 Cr.P.C. Accordingly, conditions No. (ii), (iii) and (iv) mentioned as above stands satisfied as it is matter of record that accused had due notice of the pendency of the present complaint despite which he failed to make the payment of cheques in question to the complainant. Therefore, the presentation of cheques in question bearing the signatures of accused, their dishonorment and service of legal demand notice is not under question. Once these facts are established, a presumption of the cheques having been issued in discharge of a legally sustainable liability and drawn for good consideration is raised by virtue of Section 118 (a) and Section 139 of the NI Act. Therefore, at this stage, with the help of the presumption under Section 139 of the Act, the condition no (i) also stands presumed as proved and the case of the complainant stands proved.
(14.) When the presumption is raised in favor of the complainant, the burden shifts upon the accused to disprove the case of the complainant by rebutting the presumption raised in favour of the complainant. It is well settled that in order to rebut the presumption and shift back the burden of proof on the complainant, the accused is only required to raise a Digitally signed by CC NI ACT 2532/2022 HIMANSHI HIMANSHI TYAGI
7 of 17 TYAGI Date:
2025.05.01 17:43:34 +0530 probable defence and he cannot be expected to discharge an unduly high standard of proof. Therefore, the standard of proof for rebutting the presumption under Section 139 NI Act is "preponderance of probabilities."
(15.) The accused, thus, has to make out a fairly plausible defence for it to be accepted to the court. The accused can do this, either by leading direct evidence in his defence or by raising doubt on the material/evidence brought on record by 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. However, at the same time, it is also to be remembered that bare denial of the existence of legally enforceable debt or other liability cannot be said to be sufficient to rebut the presumption and something which is probable has to be brought on record to shift the burden back to the complainant.
(16.) Keeping these basic principles in mind, this Court shall now proceed to deal with the defence of the accused that he did not issue the cheque for any payment of any debt and the cheque in question was in fact a security cheque of the previous loan. The point for determination is thus whether the accused has proved that the debt mentioned in the complaint did not exist and whether he has, thus, been able to rebut the presumption raised in favour of the complainant.
(17.) One of the defences of the accused is that he had only signed the cheque and did not fill its particulars. Infact, in this regard, a contradiction has come on record. In his statement u/s 313 CrPC accused first deposed that he only signed the cheque and mentioned the amount but then stated again that the complainant himself filled the Digitally signed by HIMANSHI TYAGI HIMANSHI Date: TYAGI 2025.05.01 CC NI ACT 2532/2022 17:43:37 +0530
8 of 17 particulars. Ld. Counsel for the accused argued that the cheque in question in the present case was given as blank signed security cheque which was misused by the complainant and accused did not fill its particulars. However, same does not bring out any credible defence. Even if for the sake of argument, it is considered that the accused gave blank signed cheque to the complainant, once accused had admitted his signatures on the cheque, he cannot escape his liability on the ground that particular have not been filled by him, or the signature on the cheque and the contents are filled in different writing and ink. When such a cheque containing blank is signed and handed over, it means that person signing it, has given implied authority to the holder of the cheque, to fill up the blank which he has left. It has been clearly laid down in section 20 of Negotiable Instrument Act, 1881 that where one person signs and delivers to another a Negotiable Instrument either wholly blank or having written thereon incomplete Negotiable Instrument, he thereby gives, "prima facie authority to the holder thereof to make or complete, as the case may be, upon it a Negotiable Instrument". Reliance for this view is placed upon the case of Satish Jayantilal Shah Vs. Pankaj Mashruwala & anr., 1996 Cri.L.J.3099. In the case of Moideen vs Johny, 2006 (2) DCR 421, it has been held that when a blank cheque is issued, the drawer gives an authority to a person to whom it is issued, to fill it at appropriate stage with necessary entries and to present it to the bank. In instant case, since the accused has admitted his signature on the cheque in answer to notice u/s 251 Cr.P.C as well as his statement u/s 313 Cr.P.C, in light of the above mentioned position of law, the accused cannot dispute the contents of the cheque in question.
(18.) The main defence of the accused is that the cheque in question was issued by him as a security cheque for the earlier loan taken by him from the complainant. To prove this defence, the accused has cross examined the complainant and had confronted the witness with certain documents. Ld counsel for the accused also argued that the he had no need to obtain a fresh loan from the complainant on 08.07.2022, when he had returned the previous Digitally signed by HIMANSHI CC NI ACT 2532/2022 HIMANSHI TYAGI TYAGI Date:
9 of 17 2025.05.01 17:43:39 +0530 loan in first week of July itself to the complainant. In his notice u/s 251 CrPC the accused categorically stated that "after I gave the complainant a cheque of Rs 2 lakh, one week later the cheque in question was presented before the bank".
(19.) To prove his defence of payment of prior loan, the accused has brought on record entries leaves of his cheque book for the cheques issued to the complainant, which are Ex CW1/X2 and Ex CW1/X3. The payment of Rs 3 lacs through cheques mentioned in ExCW1/X2 had been admitted by the complainant. However, he deposed that he did not write his name in his handwriting on the said entry. The accused also showed the entry of cheque bearing no. 000060 dated 02.07.2022 in Ex CW1/X3 to the complainant and he again deposed that he did not write his name in his name. The payment through cheque bearing 000060 is not denied by the complainant. The complainant has admitted in his cross examination that the entire payment of previous loan on 02.07.2022. It is infact even mentioned in the complaint that the accused paid his previous loan in first week of July 2022. In this manner, the defence of the accused is proved partially that he taken a prior loan of Rs 05 lacs from the complainant and the same has been paid. It is thus abundantly clear that there is no dispute about the giving and returning of prior loan of Rs 5 lacs. The only connection of the present case that follows from the prior loan of Rs 5 lacs is the defence of the accused that he gave the cheque the question as security cheque to the complainant at the time of loan of Rs 5 lacs.
(20.) For the denial of the handwriting and signature on Ex CW1/X2 and Ex CW1/X3 by the complainant, the Ld counsel for the accused sought to indulge this court to compare the signature of the complainant on ExCW1/3 with the admitted signature of the complainant. Ld. Counsel for the accused has accordingly moved an application under section 73r/w Section 45 of Indian Evidence Act which has been perused by me. I think it fit to reproduce the provisions of section 73 and section 45 of the Indian Evidence Act as under: -
Digitally signedCC NI ACT 2532/2022 by HIMANSHI 10 of 17
TYAGI
HIMANSHI
Date:
TYAGI 2025.05.01
17:43:42
+0530
Section 73 of the Indian Evidence Act Comparison of signature, writing or seal with others admitted or proved.-In order to ascertain whether a signature, writing or seal is that of the writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words of figures so written with any words or figures alleged to have been written by such person.
Section 45 of Indian Evidence Act.
Opinion of experts.-When the court has to form an opinion upon a point of foreign law or of science or art, or as to identify of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identify of handwriting or finger impressions are relevant facts. Such persons are called experts.
(21.) It is clear from bare reading of the said provisions that not just the court has been empowered to make comparison of disputed and admitted signatures of a party, but the court can also take the opinion of expert in comparing and analyzing the handwriting on any document. Section 46 and 47 of Indian Evidence Act are also relevant, which give due importance to the opinion expressed about any handwriting by any expert or any other person, who is acquainted with the handwriting of the alleged person for the purpose of section 73 of the Indian Evidence Act. Section 73 of the Indian Evidence Act also enables the court to take specimen handwriting of the person, who prays that his handwriting be compared with the disputed handwriting on an alleged document. In the present application, the prayer of the accused was only that the court should compare the handwriting and signature of the complainant with the admitted signature and handwriting of the complainant. The admitted signatures in form of signature of the complainant on his statement of evidence are available before the court. So, there was no requirement of obtaining his specimen signatures separately. The document ExCW1/3 shows that Digitally signed by HIMANSHI CC NI ACT 2532/2022 HIMANSHI TYAGI Date: 11 of 17 TYAGI 2025.05.01 17:43:45 +0530 signatures in form of letters "RK" is mentioned against the name of the complainant. Ex CW1/3 is a document to prove repayment of prior loan by way of cheque no 000060. The said repayment is not dispute and same is already mentioned above. Moreover, the complainant has already admitted his name and handwriting on ExCW1/1 which is the entry pertaining to the cheque in question. As far as comparison of signatures on this document is concerned, there are no signature of the complainant on the said document and only his name is mentioned So I don't find any find to invoke the discretionary powers u/s & 73 Indian Evidence Act. Accordingly. The application under section 73 r/w section 45 Indian Evidence Act is dismissed.
(22.) Moving further, to prove his defence that the cheque in question was issued at the time of prior loan, the accused had produced the entries of issuance of cheque bearing no 000038 and 000039 in his cheque book which is Ex CW1/X1 to show that he had issued the present cheque in question alongwith one other cheque in 2020 as security for the previous loan. The perusal of the said document shows that there is entry of these two cheques being issued to the complainant on 22.09.2020. The loan in question was allegedly was given on 08.07.2022. The document Ex CW1/X1 was shown to the complainant in his cross examination, wherein he deposed that name mentioned against the said cheque is his and the handwriting seems like his handwriting. He also deposed in this regard he did not sign on the said entries. The complainant did not depose anything further about these entries. It was not the plea of the complainant that the said entries were forged. Nothing was brought on record to elicit that the document Ex CW1/X1 is non believable. There is no reason at all before the court to doubt the veracity and genuineness of the document Ex CW1/X1.
(23.) Ld counsel for the complainant however argued that mere cheque leaves are not sufficient to rebut the presumption and prove the defence of the accused. The Ld counsel Digitally signed by HIMANSHI CC NI ACT 2532/2022 HIMANSHI TYAGI 12 of 17 TYAGI Date:
2025.05.01 17:43:48 +0530 for the accused argued that accused was not required to lead an evidence to prove non- issuance of cheque and the cheque entries which are maintained in ordinary course are the best evidence in possession of accused. For this contention, he has placed reliance upon Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC and M/S Kumar Exports v M/S Sharma Carpets (2009) 2 SCC 513. He also argued that name of complainant was written by the complainant himself in English language, which accused does not know to write, in the entries in Ex CW1/X1, Ex CW1/X2 and Ex CW1/X3 and the remaining entries were made by accused which are in Hindi language.
(24.) The judgments relied upon by the accused deal with the effect of the presumption u/139 NI Act and describe the way in which accused can prove his defence. The cited cases support the case of the accused to the extent that accused has to only prove his defence on the scale of preponderance of probabilities wit or without evidence of his own. It was held in judgment of Hon'ble Supreme Court of India in case of Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC that presumption u/s 139 NI Act is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. 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. In other words, presumptions do not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". 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'.
Digitally
signed by
HIMANSHI
HIMANSHI
CC NI ACT 2532/2022 TYAGI
TYAGI
Date: 13 of 17
2025.05.01
17:43:51
+0530
Similarly in M/S Kumar Exports v M/S Sharma Carpets (2009) 2 SCC 513 it was held as follows:
" 11. .... 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 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 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. At the same time, it is clear 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 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...."
(25.) If the defence of the accused is appreciated in light of above-cited case laws, it becomes easy to understand that accused could have only brought a very limited nature of evidence to prove non issuance of cheque. The fact of "non- issuance" is a negative fact and accused cannot be expected to produce a direct evidence of the same. The record maintained by him in his cheque book qua the entries of cheques issued by him, thus, is a very relevant evidence. Perusal of entries in Ex CW1/X1, Ex CW1/X2 and Ex CW1/X3 shows that entries only in name of complainant are in English language and rest are in Digitally signed by HIMANSHI HIMANSHI TYAGI CC NI ACT 2532/2022 TYAGI Date:
2025.05.01 14 of 17 17:43:55 +0530 Hindi language. However, only because of this fact, it cannot be presumed or proved that they were made by the complainant. I also find myself in agreement with the argument of the Ld counsel for the complainant that mere cheque leaves do not prove the defence of the accused and the defence of the accused has to be produced cumulatively in light of entire facts and circumstances. In this regard, what is pertinent to note that the loan in question is a friendly loan which was given one week after discharge of previous loan by the accused.
The same is an admitted stand of the complainant and the same is mentioned in the complaint as well. However, in ordinary circumstances, it would not be a normal conduct for any reasonable person to immediately take a loan again. The arguments raised by the accused that he had no reason to obtain any loan from the complainant on 08.07.2022 after paying his previous loan on 02.07.2022 cannot be dismissed easily. The complainant has nowhere stated the reason given by the accused for the loan. No prudent man would take a fresh loan after 06 days itself when he had just returned another loan alongwith interest. The urgency for seeking loan in such quick succession of other loan is not satisfactorily explained by the complainant. Thus, the defence of the accused seems plausible.
(26.) Once the accused has been able to establish his defence on basis of preponderance of probability, benefit of presumption in terms of Section 139 of the NI Act cannot be extended to complainant. In the absence of benefit of such presumption, it becomes imperative to consider whether the complainant has proved the existence of a legally enforceable debt, beyond reasonable doubt, independently on its own leg or not.
(27.) In order to establish existence of a legally enforceable debt, complainant has relied only upon his own testimony. There is no other witness of the said loan. The loan in question is a friendly loan for which there is no written document or loan agreement. There is nothing in the complaint about a specific reason given by the accused to the complainant for the loan in question. It is merely stated that it was a friendly loan for urgent financial Digitally signed by HIMANSHI CC NI ACT 2532/2022 HIMANSHI TYAGI 15 of 17 TYAGI Date:
2025.05.01 17:43:58 +0530 needs. There is no proof of payment of loan amount to the accused. Moreover, the complainant stated in his cross examination that he does not remember as to when he gave the first loan. There is nothing in his deposition to show that some other cheque was taken as security from the accused for the previous loan. Complainant thus failed to discharge the burden of proof in second instance and failed to prove the case beyond reasonable doubts. Thus, in such circumstances, the defence of the accused that the cheque was given as security for the earlier loan has not remained a mere averment and accused has proved his defence by puncturing holes in the case of complainant. The accused has brought such facts and circumstances before the court that the non existence of debt is so probable that a prudent man would, under the facts and circumstances of this case, act upon plea that debt did not exist.
(28.) To recapitulate the above discussion, the accused had brought to the fore the inherent consistencies in the case of the complainant on the aspect of his liability to pay the cheque amount. The complainant failed to discharge his burden of proof in second instance that accused was liable to pay the cheque amount and the cheque was issued for discharge of a loan. The complainant did not produce any proof of payment of loan or the existence of loan. On the other hand, the accused led defence of his own to prove that he issued the cheque in question way back on 22.09.2020 whereas loan was allegedly advanced only on 08.07.2022. It would be impossible for anyone to issue a cheque for even security purposes almost two years before the loan. Accused has been able to rebut the presumption of existence of legally recoverable liability of the cheque amount on the basis of preponderance of probability by casting a doubt on the case of complainant and punching holes in the case of complainant. The version of the complainant seems to be less believable as compared to that of the accused. Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2025.05.01 17:44:01 +0530 CC NI ACT 2532/2022 16 of 17 (29.) It is a settled law in criminal jurisprudence that when there are two possibilities, the one which favour the accused must be adopted and benefit of doubt must be given to the accused. Also, it is the golden principle of law that in order to pronounce a conviction in a criminal case, the accused 'must be' guilty and not merely 'may be' guilty. For an accused to be guilty, the guilt should not be based on mere surmises and conjectures but it should be based on cogent evidence.
(30.) On taking a holistic view of the abovementioned reasons and observations, this Court arrives at the conclusion that the complainant has failed to prove his case beyond reasonable doubt and to prove the existence of legally enforceable debt or liability of the accused for the cheque amount towards the complainant. On the other hand, the accused has been successful in raising a probable defence and creating a reasonable doubt in the case put forth by the complainant.
(31.) Accordingly, the accused Ravi Mehto is hereby acquitted from the offence punishable under Section 138 of the Negotiable Instruments Act.
(32.) Ordered accordingly.
Announced in open court on 01.05.2025.
This judgment contains 17 pages and each page has digitally signed by the Digitally signed by HIMANSHI undersigned. HIMANSHI TYAGI TYAGI Date:
2025.05.01 17:44:04 +0530 (HIMANSHI TYAGI) MM/NI ACT/DIGITAL COURT-01 NORTH DISTRICT, ROHINI COURTS 01.05.2025 CC NI ACT 2532/2022 17 of 17