Delhi District Court
Ravinder vs Narender Sharma 1/40 on 4 August, 2021
IN THE COURT OF SH. ABHINAV AHLAWAT
METROPOLITAN MAGISTRATE, DWARKA COURTS, NEW
DELHI
Criminal Complaint No.:4994918/2016
Ravinder ......... Complainant
Versus
Narender Sharma ......... Accused
1. Name & address of the complainant: Ravinder
s/o Sh Jagdish
R/o RZ-44, D-1, Block
Vijay Enclave,
Vinod Puri
New Delhi-110044
2. Name & address of the accused : Narender Sharma
s/o Late Sh Jagdish
Sharma
R/o RZ-M-217,
Vijay Enclave
Vinod Puri,
Palam
New Delhi-110045
3. Offence complained of : U/S 138, The
Negotiable Instruments
Act,1881.
4. Date of Institution of case : 27.02.2015
5. Plea of accused : Pleaded not guilty.
6. Final order : Convicted
7. Date of decision of the case : 04.08.2021
CC no.4994918/2016
Ravinder vs Narender Sharma 1/40
JUDGMENT
1. Vide this judgment, I shall dispose of the aforementioned complaint case as filed by the complainant, Ravinder (hereinafter referred to as the complainant) against accused, Narender Sharma, (hereinafter referred to as the accused). The present complaint has been filed against the accused u/s 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as the NI Act).
2. The brief facts as alleged by the complainant in the complaint are that complainant and accused were having friendly relations since long time and based on such friendly relations accused approached the complainant for a friendly loan of Rs. 2,50,000/- for his urgent need. It is further stated in the complaint that in the month of October 2012, the complainant withdrew his committee and paid to the accused Rs. 2.5 lakhs in cash. The accused assured the complainant that he will return the loan amount as soon as possible. That after 6 months when the complainant demanded back the loan amount of Rs. 2.5 lakhs from the accused, the accused kept on delaying the repayment of loan amount on one pretext or another. That after great perusal and family pressure, the accused ultimately issued a cheque bearing no. 830952 dated 27.12.2014 for a sum of Rs. 2.5 lakhs drawn on State Bank of India, Janak Puri, New Delhi in favour of the complainant and assured the complainant that the said cheque will be honoured at the time of its presentation.
3. Based upon the said assurance of the accused when the complainant presented the cheque to his banker i.e. Bank of Baroda, Mahavir Enclave, Delhi on 29.12.2014 the same was returned unpaid by the banker of the complainant vide cheque returning memo dated CC no.4994918/2016 Ravinder vs Narender Sharma 2/40 31.12.2014 with the remarks "Funds Insufficient". The complainant thereafter contacted the accused and told him about the dishonour of the cheque on which the accused felt sorry and requested the complainant to again present the said cheque after one week. Believing upon the assurance of accused, the complainant again presented the cheque to his banker, Bank of Baroda on 06.01.2015 however to the utter shock of the complainant the said cheque was again returned unpaid vide returning memo dated 08.01.2015 with the remarks "Funds Insufficient".
4. Thereafter, finding no other way out, the complainant served a Legal Demand Notice upon the accused on 20.01.2015 through registered AD which was sent on 21.01.2015 asking accused to repay the loan amount within 15 days from the receipt of the notice. The said notice was received back by the counsel of the complainant with the remarks "accused left the house before two months". Thereafter, the complainant filed the present complaint case with the submission that accused person be summoned, tried and punished according to law.
5. In order to prove his case, complainant in the pre-summoning evidence, examined himself as CW1 by way of affidavit Ex. CW1/A and relied upon following documents which are as follows:
a) Original cheque no. 830952 dated 27.12.2014, Ex. CW1/1
b) Original cheque returning memo dated 31.12.2014 and 08.01.2015 Ex. CW1/2 & CW1/3 respectively.
c) Legal Demand Notice dated 20.01.2015 Ex. CW1/4
d) Postal receipt and courier receipt, Ex. CW1/5 (colly) and Ex.
CW1/6 (colly).
6. Upon appreciation of pe-summoning evidence and upon finding prima CC no.4994918/2016 Ravinder vs Narender Sharma 3/40 facie case against the accused, the accused was summoned for an offence punishable under section 138 NI Act. Thereafter Notice u/s 251 Cr.Pc was framed against the accused on 29.01.2016 to which he plead not guilty and claimed trial.
7. Thereafter, the accused moved an application to cross-examine the complainant which was allowed vide order dated 2.03.2016 and lengthy cross examination of complainant was done by counsel for accused on 10.05.2016, 07.06.2016 and 08.06.2016. No other witnesses were examined by the complainant. Thereafter the complainant evidence was closed on 08.06.2016 and matter was listed for statement of accused u/s 313 Cr.PC.
8. Statement of accused was recorded u/s 313 Cr.PC on same day, wherein all the incriminating circumstances which were against the accused were put to him to which accused stated that he owed no liability towards the complainant and that the cheque in question was handed over by his wife to the mother of the complainant who was running a committee. The accused further stated that he wanted to lead defense evidence.
9. Thereafter, matter was listed for Defence Evidence. In DE, accused got himself examined as DW1 on 25.07.2016 and was subjected to lengthy cross examination by the counsel for complainant spanning for several dates which were 11.01.2019, 7.03.2019, 9.08.2019 and further on accepting the application of the complainant under section 311 Crpc, the accused was recalled for further cross examination on 4.10.2019. Accused in his defence has also examined DW2, DW3 and DW4. Thereafter DE was closed vide separate statement of the accused on 20.01.2020 and matter was fixed for final arguments.
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10. During the final arguments, Ld counsel for complainant has relied upon the following judgments:
a) Suresh Chandra vs Amit Singh 2015(9) RCR (CRI) 710
b) C.C. Alavi Hazi vs Palapetty Mohammad. Crl Appeal no.767/2007
c) Bir Singh vs Mukesh Kumar, Crl. Appeal No.230-31/2019 Ld counsel for accused has relied upon the following judgements:
a) Vipul Kr. Mehta vs Vipin Gupta, Crl. L.P. 461/2011
b) John K. Abraham vs Simon C. Abraham & Anr. , SLP (Crl.) 9505/2011
c)K. Subramani vs K. Damodra Crl. Appeal no.2402/2014.
11. The submissions made by counsel for complainant and accused have been heard and the record of the case has been thoroughly perused.
12. Before proceedings to the merits of the case, it is important to lay down the basic provision of Section 138 of NI Act,1881. In order to ascertain whether accused has committed offence u/s 138 NI Act the following ingredients have to be proved which are as follows:
a) A person must have drawn a cheque on an account main-
tained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability;
b) 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;
c) That cheque has been 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;
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d) The payee or the holder in due course of the cheque has made a demand for the payment of the said amount 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 un- paid; and
e) 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.
13. It becomes imperative to mention that Section 139 of NI Act provides a statutory presumption in favour of the drawee that the cheque was issued to him in discharge of a debt or other liability of a legally enforceable nature. Also, the said provision must be read along with Section 118 of NI Act which states that every negotiable instrument is presumed to have been drawn and accepted for consid- eration. That said, what follows is that trial under section 138 NI Act is structured on the premise of the reverse onus of proof theory since the offence is a document based technical one. The journey of evid- ence begins not from the home of the prosecution story but from the point of the defence. The presumptions carved out in favour of the complainant are those of law and not those of facts.
14. In this regard, reliance can be placed on K. N. Beena v. Muniyap-
pan (AIR 2001 SC 2895), it was observed as follows: -
"Thus, in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. This Court in the case of Hiten P. Dalal vs. Bratindranath Banerjee reported CC no.4994918/2016 Ravinder vs Narender Sharma 6/40 in (2001) 6 SCC 16 has also taken an identical view."
The Hon'ble Supreme Court, in the case of Hiten P. Dalal vs. Brat- indranath Banerjee (AIR 2001 SC 3897), observed as follows:
"Because both Sections 138 and 139 re-
quire that the Court "shall presume" the li- ability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras vs. A. Vaidy-
anatha Iyer, (AIR 1958 SC 61), it is obligat- ory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been estab- lished. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused (ibid)."
Also, in the case of K. Bhaskaran vs. Sankaran Vaidhyan Balan [1999(4) RCR (Criminal) 309], it has been held by the Hon'ble Su- preme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the NI Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
15. Further, it is a settled position that when an accused has to rebut the presumption under Section 139 NI Act, the standard of proof for do- ing so is that of "preponderance of probabilities".
As held in Rangappa vs. Srimohan [(2010) 11 SCC 441], the Hon'ble Supreme Court has observed:
"Keeping this in view, it is a settled position that when an accused has to rebut the pre-
sumption under Section 139, the standard CC no.4994918/2016 Ravinder vs Narender Sharma 7/40 of proof for doing so is that of preponder- ance of probabilities. Therefore, if the ac- cused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the ma- terials submitted by the complainant in or- der to raise such a defence and it is con-
ceivable that in some cases the accused may not need to adduce evidence of his/her own."
16. Thus, as laid down in catena of decisions it is an established law that onus lies upon the accused to rebut the presumption and to establish that cheque in question was not given in respect of any debt or liabil- ity, with the standard of proof being preponderance of probability. Therefore, it becomes critical to examine whether the explanation of the accused coupled with the evidence on record is sufficient to dis- lodge the presumption envisaged by Section 118 & 139 of NI Act.
17. Being cumulative, it goes without saying that 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 u/s 138 NI Act. This criminal liability can be attached by proving each of the elements of the section under which liability is sought to be enforced. I shall now go on to appreciate the evidence, documentary or oral, in the light of how compellingly it satisfies each of such ingredient, if it all.
Appreciation of Evidence and finding:
18. The first condition pertains to the issuance of the cheque in question to make the payment from an account maintained by the drawer of the cheque towards a legally enforceable debt or other liability. In the CC no.4994918/2016 Ravinder vs Narender Sharma 8/40 present case, the accused has admitted his signature on the impugned cheque but has denied issuing the cheque in question in favour of the complainant towards a legally enforceable debt or liability.
19. The accused throughout the journey of the trial has taken the defence that he owes no liability towards the complainant and that the cheque in question duly signed by the accused was handed over by him to his wife for submitting the cheque as a security in a committee run by the complainant's mother. The accused pleaded not guilty and claimed trial at the time of framing of notice under section 251 CrPC and during his examination under section 313 CrPC, the accused stated that he owes no liability towards the complainant and the cheque in question as issued by him was handed over by his wife to the mother of the complainant as she was running a committee. The accused admitted his signature on the cheque but denied filling in the other particulars on the cheque in question. Let us examine the potency of the defences taken by the accused one at a time.
20. As far as for proving the fact that the cheque in question was given to a committee, accused examined himself and his wife DW3. Accused stated in his examination in chief dated 25.07.2016 that the impugned cheque with his signature was given by him to his wife for becoming a member of a committee run by the complainant's mother.
Accused further stated in his testimony that as her wife had no bank account, thereby he issued the impugned cheque for her, as one of the conditions for becoming the member of the committee was to give signed cheque. Accused further submitted and placed on record the cheque booklet from which the impugned cheque was issued and cheque booklet bearing leaf from no. 830951 to 831000 of State Bank of India as Ex DW1/1. Accused further stated that his wife CC no.4994918/2016 Ravinder vs Narender Sharma 9/40 DW3 became the member of the committee run by complainant's mother starting from 10.01.2014 to 10.10.2014. Accused further stated that his wife was regular in payment in the committee till July 2014 and in July 2014, committee amount was lifted by her and she received Rs 43,000/- as the committee amount out of which Rs 4,300/- was deducted by the mother of complainant as her share and remaining amount of Rs 38,700/- was received by her wife. Accused further stated that thereafter, his wife could not pay her share amount in the committee for next three months, i.e., August, September and October 2014 due to some financial problems. However, his wife promised to the mother of complainant that she would make the total payment of three committees at one go on or before 25.12.2014.
Accused further stated in his examination that when he asked his wife to bring back that security cheque, his wife approached the mother of the complainant but she refused to return the cheque by stating that until and unless the remaining three committee amounts were paid, the security cheque won't be returned. It was further stated by accused that on failure of his wife to get back the cheque as submitted in the committee, his relations with his wife got strained and subsequently he left his home on 10.12.2014. Accused further stated that his wife got a missing complaint lodged on 13.12.2014 in PS Dabri and that after much persuasion from his relatives and well- wishers he returned home on 23.04.2015. Accused further stated that due to non-payment of committee amount due for the last three months, complainant and his mother came to his residence and attacked him and his wife, upon which a separate FIR was registered on the complaint of his wife. Accused further stated that he never received the legal demand notice dated 20.01.2015 or any other notice regarding the dishonour of the cheque. Lastly, accused stated that he came to know about the case when he received notice from CC no.4994918/2016 Ravinder vs Narender Sharma 10/40 the Dwarka Court. Accused denied issuing the cheque against any liability.
21. The accused was cross examined at length by the counsel for complainant. During his cross examination dated 11.01.2019, accused admitted his signatures on the cheque and also that the cheque in question is drawn on his bank account. The accused further admitted that he had not indicated or written on the cheque that it was being given as a security in the committee. Accused further admitted that he had not issued any stop instructions to the bank regarding the cheque in question. Accused also admitted to the fact that no receipt was taken from the complainant's mother that cheque in question was being given as a security in the committee.
22. For the sake of arguments, if one were to believe that cheque in question was in fact, as alleged by accused given as a security in the committee and not to complainant, then two questions naturally arise, firstly why did the accused not send a written notice to the complainant's mother to demand the cheque back from her. The accused has not whispered anything about the recourse he took to procure back the security cheque and as to what happened to the submitted security cheque on the completion of committee period.
Secondly, the next question which would arise is that why accused did not file a complaint either with his bank or with the police in order to ensure that the cheque was not misused. It is also noteworthy to point out that the accused had merely handed over a blank signed cheque to his wife for submitting the same as a security in the committee but when complainant's mother refused to give the cheque back on account of non-payment of last three committee CC no.4994918/2016 Ravinder vs Narender Sharma 11/40 payment by his wife, the accused never took any steps to stop the misuse of cheque. Merely stating that his relations with his wife got strained due to her not getting back the cheque in question and his eventual leaving of his house, does not establish either the existence of any committee or alleged misuse of the cheque by the complainant.
23. Also, the fact that the cheque got dishonoured twice as evident from Ex CW1/2 and Ex CW1/3, after which the complainant had filed the present case, showcases that the accused did not undertook any step to stop the second presentment or issue any instructions to the bank regarding the alleged misuse. The accused has also failed to bring on record any material or record to show that he contacted the complainant or his mother regarding presenting the cheque for encashment. The fact that the cheque got dishonoured both time with the remarks "FUNDS INSUFFICIENT" shows that the accused was aware of its presentment for encashment by the complainant and that he never undertook any steps to stop the misuse of cheque.
24. An adverse inference can safely be drawn against the accused who has failed to adduce any credible evidence to show that he indeed did everything within his power and control, as a prudent person would do to ensure that cheque tendered by him was not misused. Merely stating that he owes no liability to the complainant does not help the case of the accused.
25. Reliance can be placed on the judgment of V.S. Yadav v. Reena CRL. A. NO. 1136 Of 2010 wherein it was held that:
"Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to CC no.4994918/2016 Ravinder vs Narender Sharma 12/40 rebutting the presumption raised under Section 139 of N.I. Act. If mere statement under Section 313 Cr. P.C. or under Section 281 Cr. P.C. of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/ prosecution, then every accused has to be acquitted. But, it is not the law. In order to rebut the pre- sumption under Section 139 of N.I. Act, the accused, by cogent evidence, has to prove the circumstance under which cheques were issued."
Further, as observed by the Hon'ble Supreme Court of India in Sumeti Vij vs Paramount Tec Feb Industries (CRA 292/2021) LL 2021 SC 149, "The statement of the accused recorded under 313 of the Code is not a substantive evidence of defence, but only an opportunity to the accused to explain the cir- cumstance appearing in the prosecution case of the ac- cused".
26. Further, the accused has submitted in his defence the cheque booklet Ex DW1/1 to show that he had written the reason for which the impugned cheque was issued. The counsel for accused states that page as attached on the front of the cheque booklet known as record slip/index page shows the reason for which the impugned cheque was issued by the accused. The counsel for accused further states that the record slip/index page which is exhibited as ExDW1/1 as attached in the front of the cheque booklet clearly states that the cheque no. 830952 dated 10/01/2014 was issued in favour of Roshni and the said record slip also mentions the reason as "for committee security purpose given by kusum".
27. Before evaluating the submission of the counsel for accused, let us understand the purpose and utility of the record slip/index as attached in the front pages of the cheque booklet. It is general practice that the CC no.4994918/2016 Ravinder vs Narender Sharma 13/40 drawer of the cheque writes on the front page as attached with all cheque booklet which is called as record slip or contents page, the name of the payee or name of person in favour of whom the cheque is issued along with the amount and the date on which the said cheque is issued. The whole purpose for which this record slip is filled is, for the drawer to maintain a list about all the cheques he has issued for his own ready reference. Any entry made by the drawer of the cheque in the record slip of his cheque booklet does not itself becomes an evidence.
28. Further as per the NI Act, 1881, the presumption under section 118 is drawn of the negotiable instruments and not of the index or the record slip attached in the front pages of the cheque booklet. Further, section 13 of NI Act defines Negotiable Instrument which means and includes promissory note, bill of exchange or cheque payable either to order or to bearer. Therefore, based upon the above stated sections, it is clear that anything written by the drawer on record slip/index attached in the front pages of cheque booklet does not create any presumption in favour of drawer, as that record slip/index is not a negotiable instrument. Also, it is not the case of the accused that he had written the reason of issuing the cheque on the cheque itself, therefore, no evidentiary value can be attached to anything written by the drawer himself on the record slip/index page of the cheque booklet.
29. Further, it would be worthwhile to refer to Section 34 of Indian Evidence Act, 1872 which provides for the statements made under special circumstances, the said Section reads as below:
34. Entries in books of account when relevant. --
1[Entries in books of account, including those main-
CC no.4994918/2016Ravinder vs Narender Sharma 14/40 tained in an electronic from], regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.
Illustration A sues B for Rs. 1,000, and shows entries in his ac- count books showing B to be indebted to him to this amount. The entries are relevant, but are not sufficient, without other evidence, to prove the debt.
30. Based on the above section, it is clear that such entries in the record slip/index page attached on the front of the cheque booklet is for re- cord keeping for drawer himself. Any entry made by the drawer re- garding the cheque issued by him doesn't itself becomes an evidence. Such entries may be relevant but are not sufficient enough by itself to charge any person with liability. Such entries require other evidences to corroborate or establish the circumstances under which they were made.
Additionally, such entries made by the drawer himself on the index/ record slip attached on the front pages of the cheque booklet comes within the concept of self-serving statements. Position of law on a self-serving statement is settled, that a self-serving statement in one's own favour cannot be allowed to affect the interests of his ad- versary. Self-serving statements are those, which serve, promote or advance the interest of the person making it. Hence, they are not al- lowed to be proved. They enable to create evidence for themselves.
As held in Idandas vs. Anant Ramachandra Phadke, AIR 1982 SC 127, an entry in the counterfoil of the receipt book maintained by the landlord is an admission in favour of the landlord and cannot be used against the tenant.
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31. Therefore, there is no force in the argument of the counsel for ac-
cused that the accused had mentioned the reason for issuing the cheque on the record slip/index page of the cheque booklet and the same highlights that the impugned cheque was never issued to the complainant rather to Roshni Devi, who is the mother of the com- plainant. As held above, the record slip/index page is no evidence in itself, therefore, Ex DW1/1 is not sufficient to dislodge the presump- tion under section 118 or 139 of the NI Act.
32. Further, the accused in his testimony has also stated that the cheque was given as a security in a committee in which his wife was a mem- ber of. Before proceeding further, let us understand the position with regard to the security cheque as settled by the Honable Delhi High Court in Suresh Chandra Goyal vs Amit Singhal, CRL.L.P. 706/2014 which as follows:
"28. There is no magic in the word "security cheque", such that, the moment the accused claims that the dishonoured cheque (in respect whereof a complaint under Section 138 of the Act is preferred) was given as a "security cheque", the Magistrate would acquit the accused. The expression "security cheque" is not a statutorily defined expression in the NI Act. The NI Act does not per se carve out an exception in respect of a 'security cheque' to say that a complaint in respect of such a cheque would not be maintainable. There can be mirade situations in which the cheque issued by the accused may be called as security cheque, or may have been issued by way of a security, i.e. to provide an assurance or comfort to the drawee, that in case of failure of the primary consideration on the due date, or on the happening (or not happening) of a contingency, the security may be enforced. While in some situations, the dishonor of such a cheque may attract the penal provisions contained in Section 138 of the Act, in others it may not."
33. Therefore, the defence of the accused that the impugned cheque was issued by him to be used as a security cheque in a committee in CC no.4994918/2016 Ravinder vs Narender Sharma 16/40 which his wife was a member has no force, as the accused has failed to substantiate this version by bringing reliable evidence in the form of examining the other members of committee who could have corroborated the accused version or brought any material to show or establish that the impugned cheque was issued for committee and not towards the complainant. As already held in the above paragraphs that the index/ record slip of the cheque booklet is no evidence in itself, thereby the defence has failed to substantiate this defence version and thus this cannot be relied upon.
34. Furthermore, the second line of defence taken by the accused is that he has not received any loan amount from the complainant and since he has not received any loan amount from the complainant, hence he has no liability to pay the same. The accused states that he had not issued the impugned cheque in favour of the complainant rather it was issued for a committee as a security cheque which was given by him to his wife for submission in the committee.
Before, proceeding to evaluate this contention of the accused, it would be important to highlight the judgment of the Hon'ble Delhi High Court in M/S The Jammu & Kashmir Bank vs Abhishek Mittal CRL. A. No. 294/2011 wherein it was held that, "13. It is, thus, clear that for whatever reason if a cheque is drawn on an account maintained by a drawer with its bank in favour of any person for the discharge of "any debt or other liability" the ingredients of offence under Section 138 of the Act gets attracted in case the cheque is returned dishonored for insufficiency of funds and the cheque amount remains unpaid within the statutory period, despite service of notice. Legislature has been careful enough to record not only discharge in whole or in part of any debt but the same also includes other liability as well. The words „any‟ and „other liability‟ used in the Section assumes CC no.4994918/2016 Ravinder vs Narender Sharma 17/40 importance in the sense that if a cheque is issued by a person to discharge any debt or other liability of another person it would attract the penal consequences under Section 138 of the Act."
35. The above judgment has clearly stated that a drawer of a cheque cannot escape from his liability even if the cheque is issued for a third person or party who was not party to any agreement. Once the signature on the cheque are admitted, a presumption as per section 139 NI Act is raised, that the payee or holder of a cheque received the cheque in discharge in whole or in part of any debt or liability.
36. Therefore, accused even if issued the impugned cheque for his wife, for using the same in a committee, has not established how the same came into the possession of the complainant and what steps he took to stop its misuse or steps he took for getting those cheques back. Therefore, the defence of the accused that he never issued the cheque in favour of the complainant, in the absence of any evidence is vague and not inspiring confidence and is no-where near setting up a probable defence.
37. Further, in his defence, accused got examined his wife DW3. DW3 reiterated the version as told by the accused that she was a member of a committee run by the complainant's mother and that said committee was for Rs 50,000/- and comprised of three shares belonging to the mother of complainant, Nanad of complainant's mother and herself. DW3 further stated that the period of committee was from 10.01.2014 to 10.10.2014 and was consisting a total of 10 members. DW3 further stated that she cannot recall the names of other members of the committee as they all were relatives of the complainant. DW3 further stated that she withdrew the committee CC no.4994918/2016 Ravinder vs Narender Sharma 18/40 money in the month of July 2014 and she expressed her inability to contribute for the months of August, September, October 2014 to the complainant's mother. DW3 further stated that she told the mother of complainant that she would contribute in the month December of 2014. Further, DW3 stated in her examination in chief that the mother of complainant had demanded a blank signed cheque from her in the month of January 2014 for becoming member of the committee. As she was not maintaining any bank account, complainant's mother demanded her husband's cheque from her, which she did after obtaining the consent of her husband (accused, DW1).
38. DW3 further stated that when committee ended in the month of October 2014, she demanded the cheque back from complainant's mother but she refused to return the same. DW3 further stated that when she failed to get her cheque back from complainant's mother, she had a discord with her husband and thereafter her husband left the home on 10-12.12.2014 and that on 13.12.2014 she got a missing report lodged at PS Dabri which is Ex DW1/C1 and she lodged another complaint which is in the nature of a statement and the same is Ex DW1/C2.
DW3 further stated in her examination in chief that upon return of her husband, a dispute arose between her and the complainant's mother and during that dispute ,she was physically abused by the mother and bua of the complainant. On this she got registered one separate FIR in PS Dabri and the same is ExDW3/1. DW3 further stated that due to this acrimony, the complainant and his mother has filed the present case.
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39. DW3 was cross examined at length on 27.04.2019 by the counsel for complainant and she denied all the suggestions put to her about creating false story about the existence of committee and about her husband (accused) leaving the house due to her not being able to get back the cheque as submitted by her in the committee run by complainant's mother. DW3 further denied the suggestion that her husband might have left the home because of dispute with his mother. However, DW3 admitted that one case as between her husband Narender and his mother, namely Narender kumar Vs. Jasbir Kaur was filed and pending in Tees Hazari Courts.
It is pertinent to mention here that, during the cross examination, DW3 admitted to the fact that she and her husband did not make any complaint about the cheque in question. DW3 further stated that she does not have any written acknowledgement about giving the impugned cheque as a security. Most importantly, DW3 admitted that when the impugned cheque was handed over to the complainant , her husband (accused) was not missing. But later on DW3 volunteered to state that impugned cheque was handed over by her to the mother of the complainant.
On the perusal of the complaint about missing report dated 13.12.2014 Ex DW1/C1, complaint statement recorded vide DD No. 24A at PS Dabri dated 15.12.2014 which is Ex DW1/C2 and the FIR as registered at the complaint of DW3 which is ExDW3/1, it is evidently clear that none of these above mentioned documents even remotely mentions about the impugned cheque and that accused, husband of DW3 went away from his home due to discord with his wife DW3. All the above documents as tendered in defence evidence fails to explain anything connected with the present case. These documents tendered in defence evidence do not help the case CC no.4994918/2016 Ravinder vs Narender Sharma 20/40 of accused in any manner whatsoever and are far from helping the accused rebutting the presumption raised against him.
Further, on the testimony of DW3, the counsel for the complainant has argued that both DW1 and DW3 being husband and wife are interested witnesses and therefore they are deposing to help each other. The counsel for complainant further submits that the accused apart from his wife has not called any other member of the committee to substantiate his version and therefore not much weight can be given to the testimony of DW3 in the absence of corroborative witnesses.
40. Coming to the above argument as advanced by the complainant's counsel, it is now well settled that evidence of witness cannot be discarded merely on the ground that he or she is related witness. It is a well settled rule of prudence that the evidence of a related or interested witness should be examined very meticulously. Based on the testimony of the interested witnesses along with other evidence on record, the entire defence evidence will be examined.
41. It is clear that the accused has not brought forth any other witness apart from his wife DW3 or any other material evidence to substantiate his defence version. The accused apart from the testimony of his wife DW3, failed to examine any other member of the committee particularly, mother of complainant who was allegedly running the said committee in which the wife of accused became a member. Examination of any other committee member by the defence, could have corroborated the version of the accused that there was in fact, a committee of which accused's wife was a CC no.4994918/2016 Ravinder vs Narender Sharma 21/40 member and that the person running the same used to take cheques as security from the members.
Non examination of any such members has clearly jeopardised the case of accused. Accused himself was not the member of the said committee nor he has brought any other material record to show that the cheque was in fact issued as a security for being a member of the committee. The fact that DW3 is directly related to the accused and thereby there are reasons for her to depose in his favour. In the absence of any evidence, much less reliable, this defence version is established to be unsubstantiated and is thus, unbelievable.
42. Furthermore, the counsel for accused has tried to highlight the financial in-capacity of the complainant to lend Rs 2.5 lacs to the accused. The counsel for accused has highlighted that during the cross examination of the complainant dated 7.06.2016, the complainant admitted that he did not have the Tent business in the year 2012 and that he started it in the year 2014. The counsel for accused further stated that complainant admitted in his cross examination that in the year 2012, he never used to file Income Tax. The counsel for accused submits that these facts shows that complainant had no steady source of income to have lend the alleged loan amount of Rs 2.5 lacs to the accused and that the complainant has cooked up a story about lending the money to the accused.
43. At this stage, it is pertinent to refer to the decision of the Hon'ble Su-
preme Court in the case of M/S. Aps Forex Services Pvt. Ltd. vs Shakti International Fashion 2020 SCC OnLine SC 193, it was ob- served by the Hon'ble Apex Court, inter alia, as under: -
CC no.4994918/2016Ravinder vs Narender Sharma 22/40 "20. In the present case, the accused never questioned the financial capacity of the complainant. We are of the view that whenever the accused has questioned the financial capacity of the complainant in support of his probable de- fence, despite the presumption under Section 139 of the N.I. Act about the presumption of legally enforceable debt and such presumption is rebuttable, thereafter the onus shifts again on the complainant to prove his financial ca- pacity and at that stage the complainant is required to lead the evidence to prove his financial capacity, more particularly when it is a case of giving loan by cash and thereafter issuance of a cheque. That is not a case here."
44. Similar views were expressed in Basalingappa vs.Mudibasappa, (2019) 5 SCC 418, wherein it was observed as under :-
"30. We are of the view that when evidence was led before the Court to indicate that apart from loan of Rs.6 lakhs given to the accused, within 02 years, amount of Rs.18 lakhs have been given out by the complain- ant and his financial capacity being ques- tioned, it was incumbent on the complain- ant to have explained his financial capa- city. Court cannot insist on a person to lead negative evidence...." (emphasis supplied).
45. The complainant denied all the suggestions put to him by the counsel for accused that he had no source of income in the year 2012 to lend money to the accused, the complainant stated and explained that he lifted the money from a committee in which he was a member for advancing the loan to the accused. For better appreciation the relevant portion of cross examination of CW1 dated 07.06.2016 is called out as under:
" in the year 2012, I was a member of a committee which was run by Ms Anita W/o Sh. Dalbir R/o H. No.105,Vijay Enclave , Vinod Puri, Palam, New Delhi 110045. The said committee had ten members and it was for ten months from October, 2011, this is not mentioned in my complaint. I lifted the committee in between before the expiry of the total term and gave money to the accused in August, 2012."CC no.4994918/2016
Ravinder vs Narender Sharma 23/40
46. Further, the complainant upon being asked about the names of other members of the committee, stated their names as Surjeet s/o Phool Singh, Pramod, Anita w/o Dalbir etc. The complainant stated in his cross examination that total amount of the committee from where he lifted the money was Rs 2.10 lacs, which was given by him to the accused and that remaining sum of Rs 40,000/- was paid by him out of his own savings. The complainant further clarified in his cross examination dated 7.06.2016 that apart from Rs 2.10 lacs which he lifted from the committee, Rs 40,000/- was paid to accused, after he borrowed Rs 20,000/- from his friend namely Nanhe and other Rs 20,000/- from his own savings. The complainant further clarified that he paid this Rs 40,000/- to the accused after one day gap from payment of Rs 2.10 lacs. The complainant denied all the suggestions put to him by the counsel for accused.
47. Now, it is worthwhile to mention here that, the complainant version also gets strength from the testimony of Defence witness, DW2 who stated in her examination dated 4.08.2017 and 30.10.2018 that complainant was a member of a committee run by her in the year 2012, and the said committee was for Rs 2.5 lacs and for a period of 10 months. DW2 further stated in her testimony that complainant had lifted the committee money amount of Rs 2.10 lacs in the month of October or November 2012. DW2 further stated that she was informed by the mother of the complainant that complainant had taken the committee money for the purpose of payment to someone.
48. It is pertinent to highlight that the above said witness DW2 was called at the behest of accused only. When DW2 testimony was going against the defence she was declared hostile. With the permission of the Court, DW2 was cross examined by the defence. In CC no.4994918/2016 Ravinder vs Narender Sharma 24/40 the cross examination, the defence got it admitted by DW2 that she had come to the court on her own and that complainant had told her that committee money was to be given to the present accused. Further, the counsel for accused, cross examined DW2 and extracted from her testimony that there was fight between accused and his wife and that he left his home on 13.12.2014 and went somewhere and came back after 2-3 months.
49. The counsel for accused submits that the testimony of DW2 cannot be relied upon as she turned hostile and thereby the complainant cannot seek any corroboration from the testimony of DW2.
50. Before, evaluating the submission of the counsel for accused, it is important to understand the concept of the Hostile witness. Sometimes, a witness makes statements against the interest of the party who has called him. This makes it necessary that he should be cross examined by that party so as to demolish his stand.
Section 154 of the Indian Evidence Act, 1872 lays down that, "(1) The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.
(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness."
51. A 'hostile witness' (the term has not been used in Indian law, unlike English law) is one who from the manner in which he gives the evidence shows that he is not desirous of telling the truth to the court. A witness who is gained over by the opposite party is also termed as CC no.4994918/2016 Ravinder vs Narender Sharma 25/40 a hostile witness. An 'adverse' or 'unfavorable' witness is one called by a party to prove a particular fact, who fails to prove such fact or proves an opposite fact.
52. Further, it is also settled position of law as held in catena of cases that that a witness cannot be said to be hostile for the following reasons:
(i) Whenever his testimony is such that it does not support the case of the party calling him or is not in accord with the evidence of other witnesses [Tulsi Ram Sahu vs R.C. Pal AIR 1953 Cal 160].
(ii) When he has not been produced out of the fear that he might disfavour the party who has to produce him [Ram Rattan v Bittan Kaur AIR 1980 All. 395].
(iii) Only because he gives inconsistent or contradictory answers (e.g. at a Sessions trial, witness tells a different story from that told by him before the Magistrate).
53. The inference of the hostility of a witness would be drawn from the answer given by him and to some extent from his demeanor, attitude, etc. A prosecution witness can be declared hostile when he resiles from his previous statement made under Secs 161 or 164 Cr.PC. Besides this, when a prosecution witness turns hostile by stating something which is destructive of his prosecution case, the prosecution is entitled to get this witness declared hostile.
54. Further, what is the value of the evidence of a hostile witness is also a settled law as held in the following cases:
(i) The whole testimony need not be rejected, nor such a witness can be regarded as a wholly reliable witness. The court can rely upon that part of the testimony which inspires confidence and credit [ Rabinder Kumar Dey vs State of Orissa AIR 1977 SC 170].
(ii) The testimony of a hostile witness requires close scrutiny because he is contradicting himself, and that portion of his statement, which is a consistent with the prosecution or defence, may be accepted [State of CC no.4994918/2016 Ravinder vs Narender Sharma 26/40 U.P v Ramesh Prasad Mishra (1996) 10 SCC 360].
(iii) The testimony of a hostile witness can be used to the extent to which it supports the prosecution case [Koli Lakhmanbhai v State of Gujarat AIR 200 SC 210]. The whole of the evidence so far as it affects both parties favourably or unfavourably must be considered for what it is worth.
Also, The Hon'ble Supreme court in Krishan Chander v. State of Delhi, 2016 SC298 held that, " the mere fact that a witness is declared hostile by the party calling him and al-
lowed to be cross-examined does not make him an unreliable witness so as to exclude his evidence from consideration altogether".
55. Based upon the above cited judgments it is clear that the entire testimony of a hostile witness cannot be rejected and court can rely upon that part of the testimony which inspires confidence and credit. Therefore, part of the testimony of DW2 corroborates the version put forth by the complainant regarding the existence of a committee run by DW2 where the complainant was a member and that the complainant lifted the committee amount of Rs 2.10 lacs from the committee run by DW2 for lending the loan amount to the accused.
56. In view, of the above findings, the defence has failed to probablise the lack of financial capacity of the complainant to advance loan in question to the accused which stands cemented by the testimony of DW2 who stated in her examination that complainant was one of the ten members in the committee and that the complainant lifted Rs 2.10 Lacs out of that committee.
57. Learned counsel for the accused pointed out certain discrepancies in the testimony of the complainant and inter alia challenged the CC no.4994918/2016 Ravinder vs Narender Sharma 27/40 financial potentiality to advance the loan in question to the accused. He argued that that the complainant has not called and examined his friend Nanhe to corroborate that he took Rs. 20,000/- from him for advancing it further to the accused and that this fact is also not mentioned in the complaint. The counsel for accused argues in light of such infirmities, the accused has punctured the case of the prosecution and hence, rebutted the statutory presumptions.
However, dismally for the accused, his argument can hardly be sustained. Although the complainant has not called Mr. Nanhe to corroborate or strengthen his version and also the same fact is a miss in his complaint. However, since it was elaborated by the complainant at the time of his cross examination, it was incumbent upon the accused to either summon the relevant witness or by calling the relevant record to challenge the complainant version. Since the complainant version is largely unchallenged, the same can be safely relied upon.
58. Also, as stated by the complainant that out of Rs. 2.5 lacs, he contributed Rs. 20,000/- out of his savings for the purpose of loan to the accused, it can be safely be held that Rs. 20,000/- is not an amount that cannot be saved by a person, even if he or she is unemployed. The complainant admitted in his cross examination dated 07.06.2016 that in the year 2012 he was working though he did not have any specific work or business. The complainant further stated that he used to do small jobs like putting a room on rent, selling vehicles, etc., and though not having any fixed income, he used to earn approximately Rs 20,000/- per month.
59. It is settled principle that Stray and minor infirmities in the testimony of the complainant shall not come to the rescue of the accused in a CC no.4994918/2016 Ravinder vs Narender Sharma 28/40 case which rests on a document based technical offence and has otherwise been unimpeachably proved by the prosecution.
Also, this conception finds mention in the judgement of the Hon'ble Delhi High Court in a case titled as Sanjay Arora v. Monika Singh Crl. A. 98/2017 wherein it has been held that:
"Mere admission of the complainant that he was earning only Rs. 12,000/- per month from his small business or his failure to file income tax returns, or his omission to produce the bank passbook or to examine Chhotu as a witness in corroboration, are inconsequential. In order to rebut the statutory presumption, it was the burden of the respondent to prove the facts that she had pleaded in answer to the notice under section 251 Cr.P.C. No material in support of such plea having come on record, the statutory presumption under section 139 Negotiable Instruments Act in the case at hand has not been rebutted."
60. Furthermore, the counsel for accused has contended that complainant did not disclose the factum of advancement of loan in question in his ITR, yet such factor alone cannot be enslaving enough to shroud the prosecution story with doubt. The averment of the counsel for accused regarding non mentioning of loan amount in ITR to doubt the case of complainant do not inspires confidence as culpability of offence under section 138 NI Act will not freeze for the reason that there is violation of section 269 of Income Tax Act and the same does not prevent the operation of the statutory presumption of section 139 of NI Act.
The prosecution u/s 138 of NI Act cannot be dismissed or stalled for non-compliance of Section 269 SS of the Income Tax CC no.4994918/2016 Ravinder vs Narender Sharma 29/40 Act. Such violation may give rise to an independent criminal offence, but on account of violation of the said provision, the prosecution of the accused for the alleged dishonour of cheque u/s 138 NI Act does not become bad in law.
61. Furthermore, the counsel for accused has tried to highlight a telephonic conversation as held between DW2 and DW3. The counsel for accused stated that DW2 upon being declared as a hostile witness and during her cross examination certain documents were placed on record to contradict DW2. The said document is A transcript of telephonic conversation as contained in a CD which took place between DW2 and DW3. Copy of transcript and CDs were placed on record.
However, at the time of the final arguments, the counsel for accused, was asked by the court that the telephonic conversation transcript and CD are not being exhibited and proved as per the provisions of the Section 65B of Indian Evidence Act. On this, the counsel for accused submitted that he does not wish to press upon this contention as neither the transcripts were exhibited nor any certificate under section 65 B Indian Evidence Act was accompanying the said CD. As, such these are private conversation between two individual persons and without proving the same as per the provisions of the Evidence Act the same are not considered for the decision of the case.
62. Reliance can be placed upon the latest decision of the Apex Court in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal civil appeal nos. 20825-20826 of 2017, wherein the law relating to the admissibility of electronic evidence was laid down as follows:
CC no.4994918/2016Ravinder vs Narender Sharma 30/40 "59. We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly "clarified" in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose."
63. As in the present case, neither the said electronic record was ever tendered in evidence as per rules of evidence nor the counsel for accused undertook any effort to procure the certificate and finally at the stage of final arguments the counsel for accused submitted that he does not wish to press the said electronic record i.e., the CD and the transcripts of the telephone conversation, therefore the said electronic record are not being taken into account and thereby not considered for the just decision of the present case.
64. The fourth line of defence taken by the accused is that there is inconsistency in the complainant's version about date of handing over the cheque by the accused to the complainant. Counsel for accused states that date of handing over the cheque is not mentioned in the evidence affidavit ExCW1/A of the complainant, whereas in cross examination of the complainant dated 7.06.2016, complainant stated that the cheque in question was handed over to him in first week of December 2014. The counsel for accused further submits that by not mentioning clearly the date on which the complainant received the cheque from accused clearly creates doubt in the case of the complainant and also the fact that the complainant for the first time in his cross examination dated 7.06.2016 stated that he received CC no.4994918/2016 Ravinder vs Narender Sharma 31/40 the cheque from the accused in the first week of the December 2014 is an improvement by the complainant, thereby the entire case of complainant is based on unreliable facts and makes the version of complainant highly doubtful.
65. Upon perusal of para 6 of the complaint and para 6 of evidence affidavit of complainant ExCW1/A, it is clear that complainant has not mentioned any specific date on which he received the impugned cheque from the accused, however, when the complainant was subjected to cross examination, the complainant stated that the impugned cheque was handed over to him in first week of December 2014. Though, the complainant has not mentioned any specific date on which he received the impugned cheque from accused but the same cannot be termed as infirmity or contradiction. At best, it can be stated that the complainant has clarified in his cross examination about the period in which he received the impugned cheque. As the complainant has clarified and elaborated about the date of receiving of cheque in his cross examination and the accused has not led any evidence to rebut or challenge the same, therefore, the testimony of the complainant remains unchallenged and can safely be relied upon.
Further, it is settled principle that testimony of a witness is to be looked into as a whole and only one single contradiction or single line in testimony of witness cannot be considered in isolation so as to discard entire testimony of a witness. Also, accused rather than pointing inconsistency in complainant's version about date of receiving cheque, has not led any evidence to support his own version that he never gave cheque to the complainant. Accused has failed miserably to show or establish circumstances under which the cheque ultimately came into the possession of the complainant.
CC no.4994918/2016Ravinder vs Narender Sharma 32/40
66. The fifth line of defence taken by the accused is that accused went missing from his home from 10.12.2014 till 23.04.2015 and a missing report was lodged by his wife. Accused DW1 has placed on record the missing report dated 13.12.2014 Ex DW1/C1 which was got lodged by his wife at police station Dabri and statement of wife of accused DW3 recorded by the police vide DD no.24A dated 15.12.2014 which is ExDW1/C2. The counsel for accused states that when he was missing from his home, how can the accused hand over the cheque dated 27.12.2014 to the complainant.
Here, it is pertinent to highlight the fact that accused was recalled for cross examination by the complainant, when application of complainant under section 311 Crpc for recalling accused was allowed by the court vide order dated 9.8.2019 wherein , accused was again cross examined on 4.10.2019 by the counsel for complainant and the accused was confronted with ExDW3/A which is a certified copy of compromise application, affidavit and compromise deed dated 18.12.2014 as executed between Narender Kumar (accused in present case) and Smt. Jasbir Kaur and Sh Bhagwan Dass Lalwani (parents of the accused) which bears signature and thumb impression of accused and his mother Smt Jasbir Kaur.
67. The counsel for complainant through ExDW3/A wanted to highlight the fact that accused was very much in Delhi and in contact with his family members which is evident from the said exhibit wherein he was present and signed a deed in the Tees Hazari Court Complex on 18.12.2014. The counsel for complainant has established that the entire story of the accused going missing from his home from CC no.4994918/2016 Ravinder vs Narender Sharma 33/40 10.12.2014 to 23.04.2015 is an afterthought created to mislead the court and to create a sham defence to rebut the presumption of law as raised by section 139 NI Act.
68. The accused has tried to create this defence of him being missing from his residence on the date on which the cheque was handed over to the complainant or on the date as mentioned on the cheque. As such, this defence of the accused holds no water, as accused has already admitted his signature on the cheque and the position of inchoate instruments is already well established.
Further, the complainant has stated in his cross examination dated 7.06.2016 that he received the impugned cheque in the first week of December 2014. Even if for the sake of argument, it is believed that indeed accused went missing from his house from 10.12.2014, then even by his own account the date of his missing and the date of receiving of cheque by complainant do not tally. This version of accused going missing from his house does not inspire any confidence and is completely unreliable. Also, it is not the case of the accused that complainant took away the cheque behind his back from his house.
69. Also, counsel for accused states that impugned cheque only bears the signature of the accused. No particulars on the cheque were filled up by the accused. Counsel for accused additionally states that it was duty of the complainant to prove why blank signed cheque was handed over to the complainant.
It would be pertinent to mention that Section 20 of the NI Act provides that where one person signs and delivers to another a Negotiable Instrument either wholly blank or having written therein an incomplete negotiable instrument, such person thereby gives CC no.4994918/2016 Ravinder vs Narender Sharma 34/40 prima facie authority to the holder thereof to make or complete, as the case may be, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp.
70. At this stage, reliance can be placed on the judgment of Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197.
"If a signed blank cheque is voluntarily handed over to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in dis- charge of a debt or liability by adducing evidence. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer,"
Also, the existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139, in the absence of evidence of exercise of undue influence or coercion.
71. Hence, in view of such clear stipulation by the Hon'ble Supreme Court and Hon'ble Delhi High Court, it is immaterial whether or not the particulars on the cheque have been filled by the accused or not, to the extent the accused has admitted to have appended his signatures on the cheque in question. Accordingly, the applicability of the presumption under Section 139 NI Act is not dependent upon the accused filling the particulars on the cheque. Accordingly, it is required to be presumed that the cheque in question was drawn consideration and the holder of the cheque i.e., the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the accused to establish a probable defence so as to rebut such a presumption. Without placing on record any evidence CC no.4994918/2016 Ravinder vs Narender Sharma 35/40 to disprove that cheque was not issued in discharge of liability, the accused was failed to rebut the presumption.
72. Lastly, in its defence, accused examined the police official, DW4 who was summoned to prove the general diary no. 53B dated 9.05.2015 to 18.05.2015, Ex DW4/1. Perusal of the same reveals that the said DD entry was recorded when accused returned back to his home. The said defence witness does not prove or help the case of the accused in any manner whatsoever.
73. Now that the defences taken by the accused stands beseeched, let us examine the potentiality of the prosecution story. The complainant's story is that he granted a friendly loan of Rs 2.5 lacs to the accused and the latter issued a cheque dated 27.12.2014 for Rs 2.5 Lacs to repay the said loan. The cheque returned unpaid for the reason 'funds insufficient' on 31.12.2014. When complainant approached the accused regarding the dishonour of the cheque, accused assured the complainant and requested him to again present the cheque for encashment after one week. Upon presenting the cheque again after one week on 6.01.2015, the same got again dishonoured for the reason "funds insufficient". After the cheque got dishonoured for the second time, the complainant did not contact the accused again. The record complainant has brought to substantiate his point are the cheque dated 27.12.2014 as Ex. CW1/1, the two cheque return memos dated 30.12.2014 & 7.01.2015 as Ex. CW1/2 & Ex. CW1/3 respectively, the legal demand notice dated 20.01.2015 Ex. CW1/4, Postal receipt and courier receipt, Ex. PW1/5 (colly) and Ex. PW1/6 (colly).
74. The accused did not bring any evidence, material or document to CC no.4994918/2016 Ravinder vs Narender Sharma 36/40 impeach the credibility of the above said documents. In fact, the accused admitted his signature on the impugned cheque voluntarily. The burden lied heavily on the accused to have probablised the factum of non-receiving the loan amount from complainant. It is not the case of the accused that the complainant obtained his signatures on the cheque under duress or by exerting any pressure or undue influence.
The only defence raised by the accused is that complainant did not advance any loan to him and that impugned cheque was issued as a security for his wife to become a member in a committee run by the mother of the complainant. Again, the accused failed to bring on record or any evidence to substantiate this defence as established in the preceding paragraphs.
75. Further testimony of DW2 who stated that the complainant withdrew the money amounting to Rs 2.10 lacs out of a committee in which he was a member of with DW2 in the month of October- November 2012 for lending amount to someone, corroborates the version stated by the complainant about the way he procured the funds for the purpose of lending it to the accused.
76. The accused attempted to demonstrate that the impugned cheque was given by him to his wife for security purpose in a committee run by the complainant's mother but failed to established even the existence of that committee. Further, the accused has failed to show that he exercised caution or circumspection with regard to the steps he undertook before issuing a security cheque which could have portrayed his bona fides. The accused has tried to create a CC no.4994918/2016 Ravinder vs Narender Sharma 37/40 parallel story of his missing from his house on the date as mentioned upon the impugned cheque but the said story does not come close to rebutting the presumption of section 139 NI Act. Further, the defence failed to probablise the lack of financial capacity of the complainant to advance the loan in question to the accused. In total, the story of the accused, in the absence any credible evidence, cannot be taken a gospel truth.
Therefore, considering the weight of the attending circumstances viz, the consistency in the prosecution story, failure of the accused to put forth any reasonable and believable defence, admission of the accused that the signatures on the cheque in question belongs to him and compelling documentary evidence placed on record the first element of section 138 NI Act stands assembled.
77. As for the second condition qua the presentation of the cheque within three months is concerned, the same is satisfied upon the perusal of the cheque in question Ex CW1/1 dated 27.12.2014 while the return memo Ex CW1/3 dated 7.01.2015, thus, being presented within the prescribed period of limitation of three months. The defence did not adduce any evidence whatsoever to contradict the same.
78. The third condition pertains to the cheque being returned unpaid owing to their being dishonored. Bank return memo or slip is prima facie proof of the dishonor. Section 146 of the Negotiable Instruments Act, 188, in this regard comes into play which raises a presumption that the court shall presume the fact of dishonor of the cheque in case of cheque is returned vide a return memo issued by the bank having thereon the official mark denoting that the cheque has been dishonored. Perusal of bank dishonour memos i.e., Ex CW1/2 & Ex CW1/3 shows that cheque in question on being presented in the bank was returned dishonoured due to "funds CC no.4994918/2016 Ravinder vs Narender Sharma 38/40 insufficient" firstly on 30.12.2014 and secondly on 7.01.2015. Again, as the defence has failed to rebut the said presumption, hence the said condition is also satisfied.
79. As far as making of demand by sending a legal demand notice is concerned, the complainant had sent the same through registered post, to the accused, legal demand notice is Ex CW1/4. The accused denied receiving the same. However, upon perusing the notice u/s 251Cr.PC, statement u/s 313 CrPC, the statement of accused for closing his defence evidence dated 20.01.2020, and the bail bonds as furnished by accused, all these above documents bear the address of the accused as mentioned upon the legal demand notice send by the complainant. Therefore, a presumption of deemed service is drawn under section 27 General Clauses Act which provides that where notice is sent to the correct address, the same shall be presumed to have been duly served. In M/s Darbar Exports and Ors. Vs Bank of India, 2003 (2), SCC (NI) 132 (Delhi), the court held that:-
"a presumption of service of notice is to be drawn where the notice is sent through registered post as well as UPC on correct address.
80. Also, in CC Alavi Haji Vs. Palapatti Mohammad (Crl.) 767/2007 the Hon'ble Supreme Court of India held that "where the notice is sent by Registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of clause (b) of proviso to section 138 Act stands complied with.
Further, the above judgment also stated that any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint u/s 138 NI Act make payment of the cheque amount and submit to the court that he had made payment within 15 days of CC no.4994918/2016 Ravinder vs Narender Sharma 39/40 receipt of summons.
81. In the present case, the accused has failed to adduce any evidence to rebut the presumption of due service. As such, the legal notice stood served upon the accused, thus implying the satisfaction of the fourth condition.
82. The last condition is that accused fails to make the payment within fifteen days from the date of the receipt of the legal demand notice. In the present case, the accused has evidently failed to make the payment within the fifteen days contending that he owes no legal liability to pay the amount mentioned in the cheque in question. The accused has miserably failed to prove that said assertion and thus, the last limb of what will entail the liability against the accused, is also structured.
83. Ratio: Finally, having considered the totality of the facts and the circumstances of the case, the accused has failed to rebut the presumption in favour of the complainant as spelled under section 139 NI Act. The law as laid down under section 138 NI Act, 1881 is made out against the accused. The weight of the evidence adduced by the complainant to prove his case against the accused is sufficient enough to impute criminality on the accused. The complainant has discharged his burden to prove his case against the accused beyond all reasonable doubt under section 138 NI Act. Therefore, the accused is held guilty and convicted for commission of offence punishable under section 138 of the Negotiable Instrument Act, 1881. Let the convict be heard on the quantum of sentence separately.
84. Let the copy of this judgment be given to the convict free of cost.
Announced in the open court on Abhinav Ahlawat
04.08.2021 MM-NI Act -02, SW/Delhi
CC no.4994918/2016
Ravinder vs Narender Sharma 40/40