Delhi District Court
K.B. Harlalka vs . Devender Kumar Aggarwal on 11 August, 2023
K.B. Harlalka Vs. Devender Kumar Aggarwal
IN THE COURT OF MS SHIVANGI MANGLA:
MM NI ACT DIGITAL COURT-02:
NORTH-WEST DISTRICT ROHINI, NEW DELHI.
CC NI ACT 2994/2021
K.B. Harlalka Vs. Devender Kumar Aggarwal
Name of complainant : K.B. Harlalka
S/o Late Sh. B.C.
Harlalka,
220, Harsh Vihar,
Pitampura, Delhi -
110034
Name of Accused : Devender Kumar
Aggarwal,
R/o G 85, South City-1,
Gurgaon
Offence complained of : 138 NI Act
Plea of accused : Not guilty
Arguments heard on : 22.07.2023
Date of judgement : : 11.08.2023
Decision : CONVICTION
CC NI ACT 2994/2021 Page No. 1 of 10
Digitally signed
by SHIVANGI
MANGLA
SHIVANGI Date:
MANGLA 2023.08.11
11:41:21
+0530
K.B. Harlalka Vs. Devender Kumar Aggarwal
JUDGMENT
1. Vide this judgment, I shall decide the present matter, CC No.2994/2021 filed by complainant K.B. Harlalka against the dishonour of cheque bearing no.202849 dated 12.04.2021 for an amount of Rs. 20,00,000/- drawn on Canara Bank, Delhi Cannaught Circus, New Delhi (henceforth, the cheque in question).
2. Briefly stated, the facts as alleged in the complaint are that complainant and accused became known to each other through a society. In year 2015, accused approached the complainant for a financial assistance as he wished to pursue certain business prospects. It was further assured by the accused that the money shall be borrowed by him in his own name and account but shall be further lended to a company named M/s Prayag Polytech Pvt Ltd., in which he stood as a Director and a shareholder. Later an arrangement was entered, whereby it was decided that accused shall be paying the interest @ 9 % p.a. Accordingly, complainant lended amount in various installments on different dates starting from 2015 till 2017, through bank account. Accused repaid certain amounts towards the interest as well as the principal money, for which the complainant has relied upon his ledger statement. Thereafter on 31.03.2021, complainant had an outstanding of Rs. 71,22,660/- towards the accused and in partial discharge of liability, accused issued the cheque in question. On presentation, the said cheque was returned as unpaid as dishonoured with remarks "Account blocked" vide returning memo dated 19.04.2021.
CC NI ACT 2994/2021 Page No. 2 of 10 Digitally signed by SHIVANGISHIVANGI MANGLA MANGLA Date:
2023.08.11 11:41:28 +0530 K.B. Harlalka Vs. Devender Kumar Aggarwal
3. Thereafter, complainant sent a legal notice dated 12.06.2021 to the accused through registered AD calling upon him to pay the loan amount. It is the case of the complainant that despite service/receipt of the notice, the accused failed to repay the amount within 15 days. Hence, the present complaint.
4. The present complaint was filed within the limitation period.
5. The cognizance was taken u/s 138 NI Act on 01.10.2021 and summons were issued to accused Devender Kumar Aggarwal thereupon.
6. Notice was framed against the accused on 06.12.2021 to which he pleaded not guilty and claimed trial.
7. The complainant has examined himself as CW1 and filed his affidavit Ex. CW 1/A. He has relied upon the documents -
1. Bank Statement Ex. CW1/1.
2. Ledger maintained by complainant in the name of accused in the account books of complainant Ex. CW1/2.
3. Original cheque in question Ex. CW1/3.
4. Legal demand Notice Ex. CW1/4.
5. Postal receipts Ex. CW1/5, tracking report Ex. CW1/6.
6. Original Bank returning memo Ex. CW1/7.
8. The opportunity for cross-examination of the complainant witness was closed by Ld. Predecessor Court vide order dt. 02.08.2022 after giving multiple opportunities as none appeared on CC NI ACT 2994/2021 Page No. 3 of 10 Digitally signed by SHIVANGI SHIVANGI MANGLA MANGLA Date:
2023.08.11 11:41:34 +0530 K.B. Harlalka Vs. Devender Kumar Aggarwal behalf of accused to exercise the said right. The said order remains unchallenged till date. Accordingly, the examination of CW1/complainant was completed on 17.01.2023.
9. The accused was examined and his statement was recorded u/s 313 CrPC on 17.01.2023, all the incriminating evidence and the documents on record were put to him. Thereafter an application u/s 315 CrPC was filed which was allowed and the further defence witnesses were dropped giving the opportunity to accused to file the relevant documents in support of defence version. However, subsequently the statement was given by the accused on 24.03.2023 that he does not wish to lead any Defence Evidence and on his statement the matter was listed for final arguments.
10. Both the Counsels made their oral submissions in length. Ld. Counsel for the complainant also filed the written submissions. The submissions made on behalf of both the parties and the judgments relied on by the parties have been considered.
11. To establish the offence under Section 138 of the NI Act against the accused, the complainant must prove the following: -
i. the accused issued a cheque on account maintained by him with a bank.
ii. the said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability.
iii. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
CC NI ACT 2994/2021 Page No. 4 of 10 Digitally signed by SHIVANGI MANGLA SHIVANGI Date: MANGLA 2023.08.11 11:41:44 +0530
K.B. Harlalka Vs. Devender Kumar Aggarwal iv. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonored.
v. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
vi. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
Point for determination:
1. Whether presumption u/s 118(a)/139 of NI Act can be raised in favour of complainant in the present case?
2. Whether legally enforceable debt exists in the present case?
I shall be deciding the above mentioned points separately.
I. Whether presumption u/s 118(a)/139 of NI Act can be raised in favour of complainant in the present case?
12. Section 118(a)/139 NI Act raises a presumption in favour of complainant regarding the issuance of cheque by accused for consideration and in discharge of a legally enforceable debt. However, it should be noted that this statutory presumption would be raised in favour of complainant only when the accused admits his signatures on the cheque or if the complainant proves the issuance of cheque by the accused. Here it is pertinent to mention an extract from the judgment CC NI ACT 2994/2021 Page No. 5 of 10 Digitally signed by SHIVANGI SHIVANGI MANGLA Date:
MANGLA 2023.08.11 11:41:51 +0530 K.B. Harlalka Vs. Devender Kumar Aggarwal of Hon'ble Supreme Court in the case of Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513,
15. Applying the definition of the word "proved" in section 3 of the Evidence Act to the provisions of sections 118 and 139 of the Act, it becomes evident that in a trial under section 138 of the Act a presumption will have to be made that every negotiable intstrument was made or drawn for consideration C.C. No. 8864/19 Dated 14.10.2020 Page 16/29 and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under section 118 and 139 of the Act help him shift the burden on the accused. The presumption will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt pr liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists."
13. Therefore on the light of the above-mentioned guidelines, it is amply clear that the presumption u/s 118(a)/139 NI Act would arise CC NI ACT 2994/2021 Page No. 6 of 10 Digitally signed by SHIVANGI SHIVANGI MANGLA MANGLA Date:
2023.08.11 11:41:59 +0530 K.B. Harlalka Vs. Devender Kumar Aggarwal only when the execution of cheque or other negotiable instrument, as the case may be is either proved by the complainant or admitted by the accused.
14. The accused has denied the signatures on the cheque in question at the time of notice framing u/s 251 CrPC. He has further stated his unawareness regarding the possession of cheque in question with the complainant. However, he admitted the bank account to be belonging to him. Similarly, in the statement u/s 313 CrPC accused stated " I am not able to say whether the signatures are mine or not. However, the style in which the signatures are done resembles mine."
15. Denial of the signatures on the impugned cheque by the accused appears to be an evasive and bald denial in absence of any cogent evidence. The accused has neither filed his specimen signatures on record nor produced any evidence (whether documentary or oral)/witnesses to prove that the signatures on cheque in question does not belong to him. A solitary evasive statement regarding the denial is not sufficient. The bare denial of consideration and existence of debt, apparently would not serve the purpose of accused and something which is probable has to be brought on record by the accused. (reliance placed on Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513 and Kishan Rao Vs. Shankargouda (2018) 8 SCC 165)
16. No iota of evidence has been led by the accused to clarify on the aspect whether signatures on the cheque does not belong to him. No evidence has been led to show how the complainant came into the possession of cheque in question. Mere dubious statements have been CC NI ACT 2994/2021 Page No. 7 of 10 Digitally signed by SHIVANGI SHIVANGI MANGLA MANGLA Date:
2023.08.11 11:42:07 +0530 K.B. Harlalka Vs. Devender Kumar Aggarwal made by accused. While a contradictory statement has been made in the statement of u/s 313 CrPC wherein he stated that "as per me, as the complainant has approached me so he must have got the cheque duly filled by himself." In the same statement he further stated "as per my understanding the complainant must have got the cheque in question from the office or from the staff". Further it can be seen that the return memo filed on record does not show the cheque was dishonored due to mismatch in signatures of the accused.
17. Therefore in totality it can be said that the complainant has been successful in proving the execution of the impugned cheque by the accused and accused has been unable to prove that the cheque in question has not been signed by him. Therefore the statutory preemptions u/s 118(a)/139 NI Act shall be raised in favour of complainant.
II. Whether legally enforceable debt exists in the present case?
18. The presumption u/s 118(a)/139 are rebuttable in nature. The burden of proof lies on the accused to prove the contrary. The standard of the proof required by the accused is based on preponderance of probabilities. The accused can examine his witnesses or file his evidences for rebuttal. He can even draw inferences from the evidence filed on record by the complainant in order to create doubts in the complainant's claim.
19. The accused maintained a stand that he owed no liability toward the complainant and the cheque in question is a forged instrument. He took a different stand in the SA statement u/s 313 CrPC wherein he stated that he was approached by the complainant CC NI ACT 2994/2021 Page No. 8 of 10 Digitally signed by SHIVANGI SHIVANGI MANGLA MANGLA Date:
2023.08.11 11:42:17 +0530 K.B. Harlalka Vs. Devender Kumar Aggarwal and the cheques were only filled by the complainant. He further showed his ignorance regarding the date on which the amount was disbursed by the complainant, the amount repaid to the complainant, the outstanding liability.
20. As per his statement u/s 251 CrPC, "I cannot state with certainity whether those cheques and how many cheques were signed and unsigned", it can be seen that accused seems to be very casual in his approach with regard to handing of the chequebook and is totally indolent about the number of the cheques signed by him till date and in whose possession the same are lying or even the whereabouts of the said cheques are not known to him. The conduct of the accused does not hold in line with the conduct of a prudent man. The accused acknowledged the receipt of legal notice by him but he never replied neither tried make an effort to enquire about his cheques, that too when the huge amount was involved.
21. In the SA statement u/s 313 CrPC accused admitted that his liability might be around Rs. 71 lacs. However, it is the settled preposition of law that statement us/ 313 CrPC can be used only to complete the chain of evidences already on record. In the present matter the right to cross examination has not been exercised by the accused despite availing multiple opportunities. Further, no defence evidence has been led despite allowance of the application. In toto, it can be said that the accused has merely paid a lip service to his defence and has not brought on record any cogent evidence to establish the defence version or to rebut the presumption which has arisen in favour of complainant.
CC NI ACT 2994/2021 Page No. 9 of 10 Digitally signed by SHIVANGISHIVANGI MANGLA MANGLA Date:
2023.08.11 11:42:24 +0530 K.B. Harlalka Vs. Devender Kumar Aggarwal
22. As established, the complainant has established his case beyond doubt and the accused has miserably failed to show the non existence of any legal liability, thereby having failed to rebut the presumption u/s 118(a)/139 NIA and has failed to prove even a probable defence.
23. Accordingly, accused Devender Kumar Aggarwal is convicted of offence u/s 138 NI Act.
24. Let the convict be heard on quantum of sentence.
25. Let copy of this judgment be given to convict free of cost.
Announced in the open Court on 11.08.2023.
Digitally signed by SHIVANGISHIVANGI MANGLA Date: MANGLA 2023.08.11 11:42:31 +0530 (Shivangi Mangla) (MM(NI) Digital court02) NorthWest, Rohini New Delhi/11.08.2023 Note : This judgement contains 10 Pages and each page is signed by the undersigned.
CC NI ACT 2994/2021 Page No. 10 of 10