Delhi District Court
Devender Sharma vs Umesh Kumar Dwivedi 1 Of 26 on 30 September, 2022
IN THE COURT OF SH. ABHINAV AHLAWAT
METROPOLITAN MAGISTRATE, DWARKA COURTS, NEW
DELHI
Criminal Complaint No.: 6787/2018
Devender Sharma ........ Complainant
Versus
Umesh Kumar Dwivedi
&
Poonam Dwivedi .........Accused
1. Name & address of the complainant: Devender Sharma s/o
Sh. Satya Prakash R/o
RZ5, Opposite CRPF
Camp, Gate no.2, Sainik
Enclave, Part1, Jharoda
Kalan, Delhi72
2. Name & address of the accused : Umesh Kumar Dwivedi
&
Poonam
Dwivedi, both r/o A
142, Sainik Enclave,
Part2, Jharoda Kalan,
Delhi72
3. Offence complained of : U/S 138, The
Negotiable Instruments
Act,1881.
4. Date of Institution of case : 12.02.2018
5. Plea of accused : Pleaded not guilty.
6. Final order
Digitally signed
: Convicted.
by ABHINAV
ABHINAV 7.
AHLAWAT Date of decision of the case : 30.09.2022
Date:
AHLAWAT 2022.09.30
16:27:21
+0530
CC no.6787/2018
Devender Sharma vs Umesh Kumar Dwivedi 1 of 26
JUDGMENT
1. Vide this judgment, I shall dispose of the aforementioned complaint case as filed by the complainant, Devender Sharma (hereinafter referred to as the complainant) against accused, Umesh Kumar Dwivedi & Poonam Dwivedi (hereinafter referred to as the accused no.1 and 2 respectively or as accused persons). The present complaint has been filed against the accused persons 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 his complaint are that accused no.1 & 2 are husband and wife and complainant is having friendly relation with both since many years. It is submitted in the complaint that accused no.1 & 2 approached the complainant in the last week of June 2017 and requested for a friendly loan of Rs. 2 lakhs for a period of 4 months stating some urgent personal need. When complainant initially refused to give the said amount both accused approached the complainant again and again and due to courtesy of friendly relationship, complainant paid a sum of Rs. 2 lakhs in cash on 03.07.2017. It is further stated in the complaint that both accused no.1 & 2 executed a written loan agreement with respect to the said friendly loan as advanced earlier on 31.07.2017. That at the time of said agreement accused no.1 & 2 also handed over a cheque bearing no.185631 bearing the signature of both the accused of the joint account of both the accused. That after completion of four Digitally months in the month of November, 2017 complainant approached signed by ABHINAV ABHINAV AHLAWAT AHLAWAT Date:
2022.09.30 16:27:31 accused no.1 and 2 for repayment of said amount but both accused +0530 CC no.6787/2018 Devender Sharma vs Umesh Kumar Dwivedi 2 of 26 asked the complainant to present the submitted cheque for encashment after one week stating that the same will be honored.
3. That as per instruction of both the accused, when complainant presented the submitted cheque bearing no.185631 dated 30.11.2017 (cheque in question) on 08.12.2017 for encashment, the same returned unpaid by the banker of the complainant vide cheque returning memo dated 08.12.2017 with the remarks "non CTS, could not be processed ". The complainant immediately informed both the accused about the dishonorment of the said cheque and upon which both accused directed to complainant to present the cheque again and upon presentation the said cheque, the same again got dishonored vide returning memo dated 09.01.2018 with the remarks " HDFC Bank and dummy branch account closed".
4. It is further stated in the complaint that complainant again informed both the accused about the fate of the cheque and requested them to repay the loan amount to which both the accused totally refused to pay the said loan and stated "jo karna hai karlo, koi paise nahi milega, jao case karlo court me jake" . It is further stated in the complaint that both the accused also threatened the complainant if complainant again approached them for the repayment of loan.
5. Thereafter, complainant served a Legal Demand Notice dated 18.01.2018 upon the accused through speed post asking accused to pay the cheque amount within 15 days from the receipt of the notice. Digitally signed by ABHINAV Thereafter, the complainant filed the present complaint case with the ABHINAV AHLAWAT AHLAWAT Date:
2022.09.30 submission that accused person be summoned, tried and punished 16:27:41 +0530 CC no.6787/2018 Devender Sharma vs Umesh Kumar Dwivedi 3 of 26 according to law.
6. In order to prove his case, complainant in the presummoning evidence, examined himself as CW1 by way of affidavit Ex. CW1/1 and relied upon following documents which are as follows:
a) Loan agreement dated 31.07.2017 Ex. CW1/A.
b) Cheque in question Ex. CW1/B
c) Cheque returning memo dated 08.12.2017 Ex. CW1/C
d) Cheque returning memo dated 09.01.2018 Ex. CW1/D
e) Legal Demand Notice Ex. CW1/E
f) Postal receipts Ex. CW1/F (colly)
g) Tracking report is Ex. CW1/G (colly)
h) Reply to the legal demand notice Ex. CW1/H.
7. Upon appreciation of presummoning evidence and upon finding prima facie case against both the accused, both the accused were summoned for an offence punishable under section 138 NI Act.
Thereafter Notice u/s 251 Cr.PC was framed against both the accused on 05.12.2018 to which they pleaded not guilty and claimed trial. Both the accused took the plea that they had taken a loan of Rs. 2 lakhs from the complainant which they had already repaid and that the cheque in question was given as security which has been misused by the complainant. Both the accused further stated that they owe no liability towards the complainant and further stated that they had Digitally signed by repaid the entire loan amount back to the complainant in the presence ABHINAV ABHINAV AHLAWAT AHLAWAT Date: of one person by the name of Guddi who used to reside on the upper 2022.09.30 16:27:49 +0530 floor of their house.
CC no.6787/2018Devender Sharma vs Umesh Kumar Dwivedi 4 of 26 Both accused admitted their signatures on the cheque and also stated that they had not filled any other particulars on the cheque. Both accused further admitted receiving the legal demand notice as sent by the complainant and also stated that they had also sent their reply to the complainant.
8. Thereafter, the application u/s 145(2) NI Act was orally moved by the counsel for accused and the same was allowed on 05.12.2018. Thereafter, complainant was cross examined by counsel for accused on 09.07.2019 and 12.09.2019. No other witnesses were examined by the complainant. Thereafter the complainant evidence was closed on same date and matter was listed for recording of the statement of both accused u/s 313 Cr.PC.
9. Statement of both accused were recorded u/s 313 Cr.PC on 25.01.2020, wherein all the incriminating circumstances which were against both the accused were put to them to which accused no.1 stated that he had given the cheque in question as security while taking loan from the complainant. Accused no.1 further stated that he had taken a loan of Rs. 2 lakhs from the complainant and at the time of taking the loan he had mortgaged his property and also handed over the cheque in question as security. Accused no.1 further stated that on 03.08.2017 he had returned back the loan amount to the complainant at his residence in front of his tenant namely Guddi. Accused no.1 further stated that complainant returned his property Digitally document but informed that he had misplaced his security cheque signed by ABHINAV AHLAWAT and complainant assured him that he would return the same ABHINAV AHLAWAT Date:
2022.09.30 whenever he finds the misplaced cheque. Accused no.1 further 16:27:58 +0530 CC no.6787/2018 Devender Sharma vs Umesh Kumar Dwivedi 5 of 26 admitted his signature on the cheque and also submitted that except the date all other particulars on cheque were filled by him. Accused no.1 further stated that he had received the legal demand notice from the complainant and he had also filed the reply.
Accused no.2 stated on the same lines in her statement u/s 313 Cr.PC to what accused no.1 had stated.
10. Thereafter, matter was listed for Defence Evidence and due to intervening lockdown, matter got adjuorned. In DE, both accused examined themselves as DW1 and DW2 and also examined one person by the name of Ms. Guddi as DW3.
11. Final arguments were heard at length from both the parties, the evidence led by the parties carefully considered and record 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;
Digitally signed b) cheque has been presented to the bank within a period of by ABHINAV ABHINAV AHLAWAT Date:
three months from the date on which it is drawn or within AHLAWAT 2022.09.30 16:28:15 the period of its validity whichever is earlier; +0530 CC no.6787/2018 Devender Sharma vs Umesh Kumar Dwivedi 6 of 26
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;
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 pro vides 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 consideration. 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 evidence 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.Digitally In this regard, reliance can be placed on K. N. Beena v.Muniyappan signed by ABHINAV ABHINAV AHLAWAT (AIR 2001 SC 2895), it was observed as follows: AHLAWAT Date:
2022.09.30 16:28:26 +0530 CC no.6787/2018 Devender Sharma vs Umesh Kumar Dwivedi 7 of 26 "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 is sued for a debt or liability is on the accused. This Court in the case of Hiten P. Dalal vs. Bratindranath Banerjee reported in (2001) 6 SCC 16 has also taken an identical view."
The Hon'ble Supreme Court, in the case of Hiten P. Dalal vs. Bratindranath Banerjee (AIR 2001 SC 3897), observed as follows:
"Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras vs. A. Vaidyanatha Iyer, (AIR 1958 SC 61), it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been es tablished. 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 Supreme 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".
Digitally signed by ABHINAVABHINAV AHLAWAT Date: As held in Rangappa vs. Srimohan [(2010) 11 SCC 441], the AHLAWAT 2022.09.30 Hon'ble Supreme Court has observed:
16:28:38 +0530 CC no.6787/2018 Devender Sharma vs Umesh Kumar Dwivedi 8 of 26 "Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of pre ponderance of probabilities. Therefore, if the accused 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 materials submit ted by the complainant in order to raise such a defence and it is conceivable 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 in gredient, if it all.
Digitally signed by ABHINAV AHLAWAT ABHINAV Date:
AHLAWAT 2022.09.30
16:28:46
+0530
CC no.6787/2018
Devender Sharma vs Umesh Kumar Dwivedi 9 of 26
Appreciation of Evidence and finding:
18. Presentation of the cheque in question for encashment and dishonour of the cheque for the reasons "Non CTS Cheque" & "Account Closed" are not disputed as they are a matter of record and proved by return memo dated 08.12.2017 & 09.01.2018 which are (Ex.CW1/C and Ex. CW1/D) and the same were admitted by both the accused. Thereafter, it is a matter of record and has been proved that the cheque was presented within its limitation period and was dishonored by the banker of the accused. It is also not disputed that the impugned cheque was issued by both accused and were drawn on their joint bank account as they have not denied their signature on cheque.
19. In relation to the service of legal demand notice dated 18.01.2018 (Ex. CW1/E) both accused stated that they received the legal notice and they had also sent a reply to the same. As such, the legal notice stood served upon the accused but no payment was made despite the service. Finally, the complaint has been filed within limitation period. Therefore, essential ingredient mentioned from clause (b) to clause (e) of Section 138 of NI Act stands duly satisfied.
20. The only question remaining for determination is whether cheque was issued by the drawer/accused to make payment from account maintained by them towards a legally enforceable debt or other liability. It is pertinent to note that Section 139 of NI Act provide Digitally signed by ABHINAV a statutory presumption that the cheque was handed over in ABHINAV AHLAWAT AHLAWAT Date:
2022.09.30 respect of debt or other liability. Also, the said provision must be 16:28:58 +0530 CC no.6787/2018 Devender Sharma vs Umesh Kumar Dwivedi 10 of 26 read along with Section 118 of NI Act which states that every negotiable instrument Act is presumed to have been drawn and accepted for consideration.
The primary defence that both the accused have taken is that there is no legally enforceable liability in favour of the complainant and against them as they have already returned the amount of Rs 2 Lacs which they had taken from the complainant. Let us examine the potency of the defences taken by the accused one at a time.
21. In the facts of the present case, the signatures on the cheque in question have not been denied and accordingly, this court raises presumption under section 118(a) r/w section 139 of NI Act that the cheque in question was issued by the accused to the complainant in discharge of legally enforceable debt or liability and it is now on the accused to raise a probable defence and to prove his case on the basis of preponderance of probabilities.
22. The first defence taken by the accused is that the cheque in question were given as security along with the property document and not for discharging any legally enforceable debt or liability, hence, the accused cannot be made liable for the offence u/s. 138 NI Act On this point, it is profitable to mention the judgment of Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd., (2016) 10 SCC 458, Sripati Singh vs. State of Jharkhand & Anr., 2021 SCC OnLine SC 1002 and Sunil Digitally signed by ABHINAV ABHINAV AHLAWAT Todi vs. State of Gujarat & Anr., 2021 SCC OnLine SC 1174, AHLAWAT Date:
2022.09.30 16:29:08 wherein it has been held that merely because a cheque has been is +0530 CC no.6787/2018 Devender Sharma vs Umesh Kumar Dwivedi 11 of 26 sued for only security purposes will not absolve the accused from the liability u/s. 138 NI Act. It has been further held that a cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. It has been held by the Hon'ble Court that the accused would very much be liable u/s. 138 NI Act for issuance of a security cheque also, if on the date of the presentation of such cheque there has not been a prior discharge of debt, or if the cheque has not been given towards advance pay ment, the goods in respect of which have not been received by the other party, or if other than this there has been change in circum stances which precludes the complainant from depositing the cheque with the bank.
23. In the present case, it is the complainant version, that the cheque in question was issued and handed over to him by the accused at the time of the execution of the loan agreement Ex CW1/A and the cheque in question was filled by the accused persons and signed in front of the complainant.
Complainant in his cross examination dated 09.07.2019 stated that the cheque in question was given by the accused persons to him at the time of the execution of the loan agreement after he had al ready advanced the loan amount to the accused on account of ur gency of the accused and for the reason that they were in friendly re lations with the complainant.
24. Complainant specifically denied all the suggestion of the accused that he had taken property documents along with the cheque in ques Digitally signed by tion from the accused when he had advanced a sum of Rs 2 Lacs to ABHINAV ABHINAV AHLAWAT AHLAWAT Date: the accused in the month of December 2016 or that accused persons 2022.09.30 16:29:17 +0530 CC no.6787/2018 Devender Sharma vs Umesh Kumar Dwivedi 12 of 26 have already returned the entire loan amount back to the complainant on 03.08.2017 in the presence of Ms. Guddi and that he had returned the property documents back to the accused person but failed to re turn back the cheque in question by stating that he had misplaced the cheque of the accused.
25. At this stage, it is relevant to peruse the Loan agreement dated 31.07.2017 which is Ex. CW1/A entered into between the com plainant and both the accused persons and the same reveals that ac cused persons had received a sum of Rs 2 Lacs in cash from the com plainant on 03.07.2017 for four months and they had delivered one signed cheque bearing number 185631 of Rs 2 Lacs drawn on the saving bank account no. 4381370000680 of HDFC Bank Thana Road, Najafgarh, New Delhi belonging to the accused persons.
The said loan agreement is accompanied with the duly attested photocopies of the Aadhar card of both the accused person bearing their thumb impressions as well. Further, there is no specific term in the said loan agreement where it was agreed that the accused will submit their property documents along with the cheque in question with the complainant for receiving the loan amount.
Here, it is relevant to mention about Section 91 of the Evidence Act which states about Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents which relates to lead evidence of terms contract, grants and other disposition of properties, which are reduced to form of documents. This Section merely forbids proving the contents of writing otherwise than by writing itself. Further, section 92 of the Evidence Act states about Digitally signed by ABHINAV (Exclusion of evidence of oral agreement) dealing with ABHINAV AHLAWAT AHLAWAT Date: conclusiveness of the documentary evidence and provides exceptions 2022.09.30 16:29:36 CC no.6787/2018 +0530 Devender Sharma vs Umesh Kumar Dwivedi 13 of 26 in which oral evidence against documentary evidence can be admitted.
26. As, both the accused persons have admitted their signatures and thumb impression on the Loan Agreement Ex CW1/A during their respective cross examination as DW1 and DW2 dated 04.03.2022, existence of loan agreement remains uncontroverted. Also, both ac cused have also admitted that there is no mentioning of mortgaging of any property by accused as security of loan in loan agreement Ex CW1/A. As, it is a settled principle of law of evidence that the best evi dence in possession of the party must always be given. So, where the transaction sought to be proved is primarily evidenced by a writing, the writing itself must be produced or accounted for. Also, it is a wellestablished rule of law that whenever written instruments are in volved, any other evidence (e.g., oral) is excluded from being used, either as substitute for such instrument or to contradict such instru ments. Also, as held recently, in Judgment dated 26 th October, 2021 in the matter of V. Anantha Raju vs ANR V T.M. Narasimhan & Ors. (Civil Appeal No.6469 of 2021) Hon'ble Supreme Court made the following observations, "It has been held that when parties deliberately put their agreement into writing, it is conclusively pre sumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed be- yond the reach of future controversy, faith and treacher-
Digitally
signed by ous memory"
ABHINAV
ABHINAV AHLAWAT
AHLAWAT Date:
2022.09.30
Therefore, upon the admission of their signature by both the accused 16:29:45 +0530 persons on the loan agreement and in the absence of any other evi CC no.6787/2018 Devender Sharma vs Umesh Kumar Dwivedi 14 of 26 dence to controvert the terms contained therein, the position of the accused persons with respect to the complainant is clear and the same is to be governed by the terms both the parties put into writing.
27. Therefore, the averments of the accused persons that they had sub mitted cheque in question along with the property document is not supported by the terms of the loan agreement. Bare averments with out any supporting evidence does not help the case of the accused. In the considered opinion of this court, the burden of proof is on the person who alleges a certain fact and since, in this case, it is the ac cused who is alleging the existence of a separate arrangement apart from the loan agreement, the burden of proof is on the accused to prove the existence of the same and the accused has failed to do so. Hence, the defence taken by the accused that the cheque in question were issued for the purpose of the security along with the property documents falls flat as no proof is adduced in respect of the same.
28. The second line of defence taken by the accused persons are that they have already returned the entire loan amount back to the complainant and that they owe no liability towards the complainant. To support this, both the accused in their examination in chief as DW1 and DW2 dated 04.03.2022 stated that entire payment was made by DW2 to the complainant in cash in the presence of one Ms Guddi on 03.08.2017. Both the accused further reiterated that upon receiving the loan amount back, complainant returned their property document back to DW2 but upon asking for the return of the cheque in ques Digitally signed by ABHINAV tion, complainant stated that he would return the cheque after some ABHINAV AHLAWAT AHLAWAT Date:
2022.09.30 time.
16:29:54 +0530 CC no.6787/2018 Devender Sharma vs Umesh Kumar Dwivedi 15 of 26 Both the accused persons were cross examined at length by the counsel for complainant. During their cross examination dated
04.03.2022, both the accused admitted that DW2 never asked for any receipt from the complainant upon repayment of the loan amount.
29. To support their version, accused persons also got examined Ms. Guddi as a defence witness who was examined as DW3. In her testi mony, DW3 stated to the limited point that she had no personal knowledge about the previous or present dispute between the accused and complainant and that she went back to her village in UP in March 2017 as she had no work in Delhi.
DW3 further stated that DW2 who is the wife of DW1, told her that complainant had fought with DW1 regarding some payment to the tune of Rs 2 Lacs and thereafter DW2 told her that she was ar ranging funds and even asked her for some money and thereafter she arranged Rs 50,000/ and that she handed over the same to DW2 on 03.08.2017.
In her cross examination dated 03.06.2022, DW3 specifically stated she remained as a tenant of the accused persons till March 2017 and thereafter she went back to her village in UP. DW3 specifi cally stated that she cannot tell whether accused had taken any money from the complainant and that the sequence of events were told to her by DW2 on telephone. DW3 further, clarified that Rs 50,000/ was arranged by her and DW2 together, where she contrib uted Rs 30,000/ and remaining amount being arranged by DW2 only. DW3 further stated that she arrived in Delhi on 31.07.2017 and Digitally signed by ABHINAV ABHINAV AHLAWAT stayed for 810 days and brought the amount as requested by DW2 AHLAWAT Date:
2022.09.30 16:30:05 which she had saved from her work by working as a domestic help +0530 CC no.6787/2018 Devender Sharma vs Umesh Kumar Dwivedi 16 of 26 where she used to earn Rs 6,000 to Rs 7,000/ per month. DW3 fur ther stated that she has no document or ticket of bus to show as to when she had gone back to her village in August 2017. DW3 further stated that till date she has not received back her Rs 30,000/ back from DW2 as neither she has asked for the same nor she expects ac cused DW2 to return the same owing to the difficult financial condi tion of the accused persons.
30. What comes out after evaluating the testimony of DW3 is that, she is a hearsay witness with regard to the main financial dealing between the complainant and accused persons, as the entire facts were tele phonically told to her by DW2. Further, the reason for which accused persons called DW3 was to support their version that they had re turned the entire loan amount back to complainant in cash in the presence of DW3. Although, DW3 stated the same fact during her testimony but same does not inspire any confidence as one cannot lose sight of the fact that DW3 was previously residing as a tenant in the premises of accused till March 2017 and she is deposing the same being called as a witness from the accused side only.
Further, as already discussed, there is no documentary proof of the return of the loan amount by the accused to the complainant ei ther in the form of receipt or any receiving, therefore, merely be cause the factum of return of loan amount happening in the presence of a third party cannot simply denote the actual happening of the event. Further, it is difficult to accept the version of DW3 as the only way she knows the accused persons is for the reason that she was a Digitally signed by ABHINAV tenant of the accused previously and then DW3 extending a financial ABHINAV AHLAWAT AHLAWAT Date:
2022.09.30 16:30:13 help to the tune of Rs 30,000/ without any scope of any return of the +0530 CC no.6787/2018 Devender Sharma vs Umesh Kumar Dwivedi 17 of 26 same when she herself does not have a substantial amount of earning is non believable in the usual course of human conduct.
31. Also, when accused DW2 stated in her cross examination dated
04.03.2022 that she had also taken a sum of Rs 1 Lacs from her brother Anand and Rs 50,000 from a person residing in village Dichaun, but accused DW2 never thought it appropriate to cite or ex amine her brother to support her version but found it relevant to get the testimony of her previous tenant in the form of DW3 recorded in her defence. Seen in this perspective, testimony of DW3 seems un reliable and does not aid the version of the accused persons.
32. Even otherwise, accused has not brought any proof of payment of the return of the loan amount in cash as submitted by them to the com plainant. It is a settled law that burden of proof is on the person who alleges certain facts and since accused persons has alleged that they have returned the loan amount, the burden of proof is upon the ac cused persons, who have failed to bring on record any evidence that can satisfy the factum of payment of loan amount. The only recourse accused took to prove their case was by examining one another wit ness as DW3. It will be pertinent to point out that DW3 had clearly failed to support the version of the accused.
It will be utter disregard to the established principles of evi dence, if this court accepts this oral evidence of accused devoid of any documentary evidence to concretize the proof. The story of ac cused, in the absence of any credible evidence, cannot be taken as a gospel truth.
Digitally signed by ABHINAVABHINAV AHLAWAT
AHLAWAT Date: 2022.09.30
16:30:21 +0530
CC no.6787/2018
Devender Sharma vs Umesh Kumar Dwivedi 18 of 26
33. Further, even for the sake of argument if one were to assume that the accused had returned the entire amount back to the complainant on 03.08.2017 and despite asking for the return of the impugned cheque, complainant failed to return the same, then two pertinent questions arise - one, why did the accused not send a written notice to the complainant to demand the submitted cheque back from him when the cheque in question was dishonored for the first time on 08.12.2017. Despite, the first dishonourment, the cheque in question was presented again for encashment on 09.01.2018 and still accused persons did not take any step against the complainant to stop the al leged misuse of the cheque. Throughout the course of trial, the ac cused did not whisper anything about the recourse they took to pro cure back the submitted cheque. Merely stating that the complainant failed to return back the cheque even after receiving the loan amount back in cash, shall not suffice either to obscure the story put forth by the prosecution or to cause the probabilities to lie in one's favour.
Secondly, when the cheque in question was returned dish noured twice upon being presented for encashment by the com plainant and whereafter, complainant sent the legal demand notice dated 18.01.2018 Ex CW1/E to the accused, which was duly re ceived and replied by the accused and same is Ex CW1/H, however, till that time accused did not file any complaint wither with his bank or with the police in order to ensure that the cheque was not misused any further by the complainant. The failure to lodge or file any com plaint creates doubt around the story of the defence. An adverse in ference can safely be drawn against the accused persons who has otherwise failed to adduce any credible evidence to show that they Digitally signed by ABHINAV ABHINAV AHLAWAT AHLAWAT Date: 2022.09.30 CC no.6787/2018 16:30:30 +0530 Devender Sharma vs Umesh Kumar Dwivedi 19 of 26 indeed did everything as a prudent man to ensure that cheque with their signature were not misused.
34. Further, as both the parties have admitted the execution of the loan agreement, therefore, as already stated above in the preceding para graphs, section 91 and 92 of Evidence Act applies and proving of contents of the writing other than by writing itself is forbided. Ac cused persons have not come up with any satisfactory answer nor has led any evidence to support their version of return of the loan amount back to the complainant and in the absence of any credible documen tary evidence the defence version is vague and devoid of any merit.
35. It is a settled law that to rebut the presumption of Section 139 NI Act, accused is required to lead cogent evidence with the standard of proof for doing so being that of preponderance of probabilities. In the present case, no such evidence has been led by the accused. Mere statement to this effect, without any oral or documentary evidence, doesn't inspire the confidence of this court. 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 them were not misused. Merely stating that they owe no liability to the complainant does not help the case of the ac cused persons.
36. As held in the case of M/S Kumar Exports vs M/S Sharma Car pets, Special Leave Petition (Criminal) No. 955 of 2007), wherein Digitally it was stated that, "When a presumption is rebuttable, it only points signed by ABHINAV ABHINAV AHLAWAT out that the party on whom lies the duty of going forward with evi AHLAWAT Date:
2022.09.30 16:30:41 dence, on the fact presumed and when that party has produced evi +0530 CC no.6787/2018 Devender Sharma vs Umesh Kumar Dwivedi 20 of 26 dence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over.". It was further held that, The accused in a trial under Section 138 of the Act has two options. He can either show that consider ation and debt did not exist or that under the particular circumstances of the case the nonexistence of consid eration and debt is so probable that a prudent man ought to suppose that no consideration and debt ex isted. 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 consid eration and that there was no debt or liability to be dis charged by him. However, the court need not insist in every case that the accused should disprove the nonex istence of consideration and debt by leading direct evi dence because the existence of negative evidence is nei ther 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 ac cused should bring on record such facts and circum stances, upon consideration of which, the court may ei ther believe that the consideration and debt did not ex ist or their nonexistence was so probable that a pru dent man would under the circumstances of the case, act upon the plea that they did not exist.
37. In the present case, accused persons have not been able to rebut the presumptions raised against them. Conjoint reading of the Notice, examination of DW1 and DW2 and testimony of DW3 have not been able to rebut the presumption raise against the accused persons. Digitally It will be utter disregard to established principles of evidence, if this signed by ABHINAVcourt accepts only the oral evidence of accused persons having no ABHINAV AHLAWAT AHLAWAT Date:
2022.09.30 evidence to concretize the proof.
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38. 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 due to friendly relation he had advanced a sum of Rs. 2 lakhs in cash to accused no.1 and 2 on 03.07.2017 and thereafter a written loan agreement was executed between them on 31.07.2017 through which the cheque bearing number 185631 dated 30.11.2017 as drawn and bearing the signature of both the accused from their joint account number 4381370000680 was issued and handed over to the complainant. After the completion of the four months period for the repayment of the loan when complainant approached both the ac cused, they directed the complainant to present the cheque in ques tion Ex. CW1/B for presentation which returned dishonored despite being presented twice for encashment vide returning memo dated 08.12.2017 Ex. CW1/C and returning memo dated 09.01.2018 Ex. CW1/D for the reasons "non CTS cheque" and "HDFC bank a/c closed" respectively.
Further, complainant tendered the legal demand notice dated 18.01.2018 Ex. CW1/E, Postal receipt and tracking report as Ex. CW1/F and Ex. CW1/G respectively and reply to the legal demand notice Ex. CW1/H.
39. The accused did not bring any evidence, material or document to impeach the credibility of the above said documents. In fact, both the accused admitted their signature on the impugned cheque voluntarily ily. The burden lied heavily on both the accused to have probablized the factum of repayment of the entire loan amount back to the complainant. It is not the case of the accused that the complainant Digitally signed by ABHINAV ABHINAV AHLAWAT AHLAWAT Date: 2022.09.30 16:31:00 +0530 CC no.6787/2018 Devender Sharma vs Umesh Kumar Dwivedi 22 of 26 obtained their signatures on the cheque under duress or by exerting any pressure or undue influence.
Further, as held by Hon'ble Supreme Court in Aparna A.Shah vs M/S Sheth Developers P.Ltd.& Anr, Arising out of S.L.P. (Crl.) No. 9794 of 2010), wherein it was held that, "under Section 138 of the N.I. Act, in case of issuance of cheque from joint accounts, a joint account holder cannot be prosecuted unless the cheque has been signed by each and every person who is a joint account holder".
The only defence raised by both the accused is that com plainant failed to return back their cheque even after repayment of the loan amount. Again, both the accused failed to bring on record any evidence to substantiate this defence as established in the preced ing paragraphs.
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 ac cused persons that the signatures on the cheque in question belongs to them and compelling documentary evidence placed on record the first element of Section 138 NI Act stands assembled.
40. 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/B dated 30.11.2017, while the return memo Ex CW1/C dated 08.12.2017 and return memo Ex. CW1/D dated 09.01.2018, thus, being presented within the prescribed period of limitation of three months. The defence did not adduce any evi dence whatsoever to contradict the same. Digitally signed by ABHINAV ABHINAV AHLAWAT AHLAWAT Date:
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41. The third condition pertains to the cheque being returned unpaid ow ing to their being dishonored. Bank return memo or slip is primafa cie 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 dishon ored. Perusal of bank dishonour memos i.e., Ex CW1/C and Ex. CW1/D show that cheque in question on being presented in the bank was returned dishonoured twice with the reason "non CTS cheque could not be processed" and "a/c closed".
At this is point, it is profitable to mention the case of M/S Laxmi Dyechem vs State Of Gujarat & Ors, CRIMINAL APPEAL NOS. 18701909 OF 2012, Hon'ble Supreme Court of India, wherein it was held that, "We find ourselves in respectful agreement with the decision in NEPC Micon Ltd. (supra) that the expression "amount of money ............. is insufficient" appearing in Section 138 of the Act is a genus and dishonour for reasons such "as account closed", "payment stopped", "re ferred to the drawer" are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contin gency referred to in Section 138, so also dishonour on the ground that the "signatures do not match" or that the "im age is not found", which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act.
Digitally This Court has in the decisions referred to above signed by taken note of situations and contingencies arising out of de ABHINAV ABHINAV AHLAWAT liberate acts of omission or commission on the part of the AHLAWAT Date: drawers of the cheques which would inevitably result in the 2022.09.30 16:31:17 dishonour of the cheque is sued by them. For instance +0530 this Court has held that if after issue of the cheque the CC no.6787/2018 Devender Sharma vs Umesh Kumar Dwivedi 24 of 26 drawer closes the account it must be presumed that the amount in the account was nil hence insufficient to meet the demand of the cheque. A similar result can be brought about by the drawer changing his specimen signature given to the bank or in the case of a company by the company changing the mandate of those authorised to sign the cheques on its behalf. Such changes or alteration in the mandate may be dishonest or fraudulent and that would in evitably result in dishonour of all cheques signed by the pre viously authorised signatories. There is in our view no qual itative difference between a situation where the dishonour takes place on account of the substitution by a new set of authorised signatories resulting in the dishon our of the cheques already issued and another situation in which the drawer of the cheque changes his own signatures or closes the account or issues instructions to the bank not to make the payment. So long as the change is brought about with a view to preventing the cheque being honoured the dishonour would become an offence under Section 138 subject to other conditions prescribed being satisfied.
42. Therefore, the reason for dishonourment may be any, if the cheque as drawn by the accused and the same is returned dishonoured, the pre sumption is raised against the drawer of the cheque and again, as the defence has failed to rebut the said presumption, hence the said con dition is also satisfied.
43. 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/F. The accused ac cepted receiving the legal demand notice both when notice u/s 251 Cr.PC was framed and statement u/s 313 Cr.PC was recorded. 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.
44. The last condition is that accused fails to make the payment within Digitally signed fifteen days from the date of the receipt of the legal demand notice. by ABHINAV AHLAWAT ABHINAV Date:
AHLAWAT 2022.09.30 16:31:27 +0530 CC no.6787/2018 Devender Sharma vs Umesh Kumar Dwivedi 25 of 26 In the present case, both the accused has evidently failed to make the payment within the fifteen days contending that they owe no legal lia bility to pay the amount mentioned in the cheque in question. The accused has miserably failed to prove said assertion and thus, the last limb of what will entail the liability against the accused, is also struc tured.
45. Ratio: Finally, having considered the totality of the facts and the cir circumstances of the case, accused has failed to rebut the presump tion 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 both the accused. The weight of the evidence adduced by the complainant to prove his case against both the accused is suffi cient enough to impute criminality on the accused. The complainant has discharged his burden to prove his case against the accused under Section 138 NI Act. Therefore, the accused is held guilty and con victed 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.
46. Let the copy of this judgment be given to the convicts free of cost.
Digitally signed by ABHINAV AHLAWAT ABHINAV Date:
AHLAWAT 2022.09.30
16:31:35
+0530
Announced in the open court on Abhinav Ahlawat
30.09.2022 MMNI Act 02, SW/Delhi
CC no.6787/2018
Devender Sharma vs Umesh Kumar Dwivedi 26 of 26