Delhi District Court
Cc No. 3164/2018 Triveni Prasad ... vs . Pawan Dabas Ps North Rohini Page No. ... on 9 May, 2023
IN THE COURT OF MS. MANSI MALIK,
METROPOLITAN MAGISTRATE, NORTH-WEST-03,
ROHINI COURTS, DELHI
CC No. 3164/2018
Triveni Prasad Tripathi
S/o Shri Inder Dev
R/o H.No. T-121,
Gali no. 10, Prem Nagar-II,
Near Durga Mandir,
Delhi-110086 .........Complainant
vs.
Shri Pawan Dabas
S/o Shri Hem Chander,
R/o H.No. 15,
Village Mubarikpur Dabas,
Delhi-110086 ............Accused
Date of institution of case : 06.12.2017
Date of reserving the judgment : 19.04.2023
Date of pronouncement of judgment : 09.05.2023
JUDGMENT
1. S. No. of the Case : 3164/2018
2. Date of institution of the case: 06.12.2017
3. Name of the complainant : Sh. Triveni Prasad Tripathi
4. Name of the accused : Sh. Pawan Dabas
CC no. 3164/2018 Triveni Prasad Tripathi Vs. Pawan Dabas PS North Rohini Page no. 1/14
Digitally
signed by
MANSI
MANSI MALIK
MALIK Date:
2023.05.09
17:07:44
+0530
5. Offence complained or proved: 138 N.I. Act
6. Plea of Accused: "Not Guilty"
7. Final Order: Acquittal
8. Date of Final Order: 09.05.2023
BRIEF FACTS AND REASONS FOR DECISION
1. Vide this judgment, this Court shall dispose of the present complaint filed by the Complainant against the above-named accused under section 138 read with section 142 of Negotiable Instrument Act, 1881 (hereinafter referred to as N.I. Act) for dishonour of cheque bearing no. 762822 dated 16.07.2017 for Rs. 1,00,000/- drawn on State Bank of India, Kanjhawla Delhi.
2. The brief facts of the case are as follows:-
(a) That the complainant and the accused are known to each for the last 5 years. The accused approached the complainant and requested to advance him a friendly loan of Rs. 5,00,000/- in the month of October 2015 for the construction of his house. Thereafter, as per the requirement of accused the complainant advanced Rs. 5,00,000/- in cash to the accused in the month of December 2015. The accused assured and promised the complainant that he will pay back the total amount of Rs. 5,00,000/- after one year.
(b) That finally in the month of July 2017 the accused had in discharge of his legally enforceable liability issued a cheque bearing no. 762822 dated 16.07.2017 for Rs. 1,00,000/- drawn on State Bank of India, Kanjhawala, Delhi-81 in favour of the complainant.
CC no. 3164/2018 Triveni Prasad Tripathi Vs. Pawan Dabas PS North Rohini Page no. 2/14 Digitally signed by MANSI MANSI Date:
MALIK MALIK 2023.05.09 17:07:55 +0530
(c) That the complainant deposited the aforesaid cheque with his banker but the cheque was returned back dishonored vide bank return memo dated 06.10.2017 with the remarks "Funds Insufficient".
(d) That on 26.10.2017 the complainant sent legal notice to the accused and the accused failed to comply with the requirement of the said notice within the stipulated period of 15 days from the date of service of notice.
(e) That the accused has issued the said cheque in discharge of a credit liability knowing fully well that he has no sufficient funds in his bank account and had issued the said cheque with malafide intention to cheat the complainant and thus he has committed an offence U/s. 138 of the Negotiable Instrument Act. Hence, the present complaint has been filed.
3. After taking pre-summoning evidence, the Court took cognizance of the offence under section 138 NI Act and directed issuance of process against accused. In pursuance thereof, accused appeared before the Court and furnished Court Bail.
4. Notice under Section 138 of the Negotiable Instruments Act was framed against the accused on 28.05.2019. In the notice, the accused pleaded not guilty and claimed trial. The accused stated that he had not issued the cheque in question to complainant nor the same bears his signatures. He further stated that the complainant is a priest who used to visit his house on various occasions. The complainant also stated that he had never given the cheque to the complainant and the complainant might have stolen his cheque from the cheque book.
Digitally signed by MANSI MANSI Date:
MALIK MALIK 2023.05.09 17:08:02 +0530 CC no. 3164/2018 Triveni Prasad Tripathi Vs. Pawan Dabas PS North Rohini Page no. 3/14
5. In Complainant's Evidence (CE), the complainant has examined himself as CW-1 by way of tendering an affidavit of evidence. CW-1 was cross-examined at length by Ld. Counsel for accused. The complainant placed reliance on the following documents:-
(a) Ex. CW-1/1 is the cheque in question bearing no. 762822.
(b) Ex. CW-1/2 is the cheque returning memo dated 06.10.2017.
(c) Ex. CW-1/3 is Legal Demand Notice dated 26.10.2017.
(d) Ex. CW-1/4 is the postal receipt.
(e) Ex. CW-1/5 is the delivery report.
(f) Ex. CW-1/6 is certificate U/s. 65B of Indian Evidence Act.
6. Thereafter, CE was closed vide order dated 14.10.2022. It was followed by recording of the statement of accused u/s 313 Cr.PC. All the incriminating evidence was put to accused to which he pleaded innocence and false implication. It was stated by the accused that the cheque in question does not bear his signature and he had not issued the abovesaid cheque. He further stated that he does not know the complainant and he does not know how the cheque in question came into the possession of complainant, however, the complainant used to frequently visit his house. He also stated that he does not owe the cheque amount towards the complainant and the complainant has misused the cheque in question. The accused denied receiving the legal notice from the complainant. The accused opted to lead defence evidence.
7. The accused examined himself as DW-1 and was cross-examined at length by Ld. Counsel for the complainant. The accused also summoned a CC no. 3164/2018 Triveni Prasad Tripathi Vs. Pawan Dabas PS North Rohini Page no. 4/14 Digitally signed by MANSI Date:
MANSI MALIK MALIK 2023.05.09 17:08:12 +0530 bank witness and examined him as DW-2. DW-2 placed reliance on the following documents:-
(a) Ex. DW-2/1 is the chart/pop up screen of the specimen signatures of the accused.
DW-2 was duly cross-examined by Ld. Counsel for the complainant. Thereafter, the DE was closed vide order dated 16.03.2023 and the matter was posted for final arguments.
8. During the course of arguments, it was argued on behalf of the complainant that all the ingredients of the offence under Section 138, NI Act, are fulfilled in the present case. On this basis, the complainant has argued that the presumption under Section 139 read with Section 118 of the NI Act lies in favour of the complainant and the accused has failed to rebut the presumption and raise a probable defence.
9. Per contra; Ld. Counsel for the accused has opposed the arguments rendered on behalf of the complainant and submitted that the cheque in question does not bear the signatures of the accused and that the accused is unaware as to how the cheque in question came into the possession of the complainant.
10. The Court has carefully perused the case record and has heard arguments advanced by Ld. Counsel for complainant as well as by Ld. Defence counsel.
11. The question in the present case revolves around whether the CC no. 3164/2018 Triveni Prasad Tripathi Vs. Pawan Dabas PS North Rohini Page no. 5/14 Digitally signed by MANSI MANSI MALIK MALIK Date:
2023.05.09 17:08:23 +0530 impugned cheque was issued towards the discharge in whole or in part of legally enforceable liability or debt as envisaged under section 138 NI Act. Thus it becomes apposite at this juncture to reproduce section 138 NI Act:
"138. Dishonour of cheque for insufficiency, etc., of funds in the accounts Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for "a term which may extend to two year", or with fine which may extend to twice the amount of the cheque, or with both Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability."
12. Thus, in order to ascertain whether the accused has committed an offence u/s 138 NI Act, the following ingredients constituting the offence have to be proved:
(a) The drawer of the cheque should have issued the cheque for the discharge, in whole or in part of a legally enforceable debt or other liability.
(b) The cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account CC no. 3164/2018 Triveni Prasad Tripathi Vs. Pawan Dabas PS North Rohini Page no. 6/14 Digitally signed by MANSI MANSI MALIK MALIK Date:
2023.05.09 17:08:31 +0530 by an agreement made with that bank.
(c) The drawer of such cheque fails to make the payment of the said amount of money within fifteen days of the receipt of the notice from the payee or the holder in due course demanding the payment of the said amount of money.
It is only when all the above mentioned ingredients are satisfied that the person who has drawn the cheque can be set to have committed an offence u/s 138 NI Act.
13. Section 138 NI Act has to be read with the legal presumptions u/s 139 and 118 NI Act in favour of the payee or holder in due course. The said sections are reproduced below:
"139. Presumption in favour of holder It shall be presumed, unless the Contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability."
"118. Presumptions as to negotiable instruments of consideration Until the contrary is proved, the following presumptions shall be made:
(a) Of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has bee accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.
(b) As to date that every negotiable instrument bearing a date was made or drawn on such date;..............."
14. These presumptions in favour or complainant are rebuttable in nature CC no. 3164/2018 Triveni Prasad Tripathi Vs. Pawan Dabas PS North Rohini Page no. 7/14 Digitally signed by MANSI MANSI MALIK MALIK Date:
2023.05.09 17:08:40 +0530 and it is no more res integra that the burden lies on the shoulder of the accused to rebut the same. It is now well established that the accused can prove the non-existence of any debt or any other liability by raising a probable defence or by demolishing or discrediting the case of the complainant in cross-examination of witness adduced by the complainant. It is not necessary for the accused to lead direct evidence to rebut the presumptions. He may do so by showing preponderance of probabilities and that may be by relying upon the circumstances on record.
15. The Hon'ble Apex Court in M.S. Narayana Menon Vs. State of Kerala, (2006) 6 SCC 39 laid down the law in the given terms:
"For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. This Court, therefore, clearly opined that it is not necessary for the defendant to disprove the existence of consideration by way of direct evidence. The standard of proof evidently is pre-ponderance of probabilities. Inference of pre-ponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies."
16. The Apex Court also clarified that the standard of proof is not as heavy as that of prosecution, which is to prove the guilt beyond reasonable doubts but the one upon the accused is only mere preponderance of probabilities. The observations made in K. Prakashan vs P. K. Surenderan, (2008) 1 SCC 258 are as follows:
"It is furthermore not in doubt or dispute that whereas the standard of proof CC no. 3164/2018 Triveni Prasad Tripathi Vs. Pawan Dabas PS North Rohini Page no. 8/14 Digitally signed by MANSI MANSI MALIK MALIK Date:
2023.05.09 17:08:53 +0530 so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability".
17. Now coming to the factual matrix of the present case, this complaint has been filed by the complainant against accused on the allegations that the amount of Rs. 5,00,000/- is due and payable by the accused to the complainant towards the friendly loan given by the complainant to the accused. That the accused in part discharge of his legally enforceable liability had issued cheque bearing no. 762822 dated 16.07.2017 for Rs. 1,00,000/- drawn on State Bank of India, Kanjhawla, Delhi in favour of the complainant. However, the aforesaid cheque was dishonoured on presentation. Despite service of legal notice, the accused did not pay the cheque amount to the complainant and thus committed the offence u/s 138 NI Act.
18. The accused has assailed the present complaint and has pleaded that the cheque in question does not bear his signature and that he never issued the said cheque to the complainant. He further stated that he does not know how the cheque came in possession of the complainant and that he does not owe the cheque amount to the complainant.
19. The Hon'ble Supreme Court in the case of K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510 has held that once the signatures on the cheque is admitted to be of the accused, then the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Therefore, it is CC no. 3164/2018 Triveni Prasad Tripathi Vs. Pawan Dabas PS North Rohini Page no. 9/14 Digitally signed by MANSI MANSI Date:
MALIK MALIK 2023.05.09 17:09:01 +0530 pertinent to note that the statutory presumption under Negotiable Instruments Act, as mentioned above, only arises if the accused admits the cheque and his/her signatures on it.
20. In the present case, the accused has, from the very beginning denied his signatures on the impugned cheque both at the stage of Notice under Section 251 CrPC as well as in his statement under Section 313 CrPC. It is stated by the accused both in the Notice under Section 251 CrPC as well as in his statement under Section 313 CrPC that the cheque in question does not bear his signatures and that he does not know how the cheque in question came in possession of the complainant.
21. The court is of the considered opinion that when at the outset the accused had denied the signatures on the cheque in question in his notice under Section 251 CrPC as well as in his statement under Section 313 CrPC, the burden to prove that the ingredients of Section 138 NI act were satisfied shifts on to the complainant. Once the accused has denied his signatures on the cheque in question, the complainant cannot take support of the presumptions raised under Section 139 r/w Section 118 NI act. Therefore, in the instant case, where the accused has consistently denied his signatures on the impugned cheque, the complainant should have summoned the bank witness to prove the signatures of the accused on the impugned cheque. However, the complainant failed to do so. Per contra, the accused has summoned bank witness in the present matter and examined him as DW-2. DW-2/Sh. Pawan Kumar, Senior Associate, State Bank of India, has deposed that the accused has bank account bearing no. 33540671015 in his bank and CC no. 3164/2018 Triveni Prasad Tripathi Vs. Pawan Dabas PS North Rohini Page no. 10/14 Digitally signed by MANSI MANSI MALIK MALIK Date:
2023.05.09 17:09:08 +0530 that cheque no. 762822 ( i.e. the cheque in question) dated 16.07.2016 was sent by bank of Baroda for encashment. He further deposed that as per the bank, the signatures on the cheque in question is different from the bank record. The specimen signatures of the accused Pawan Dabas was also produced by the said witness and the same is Ex. DW-2/1. Further, if the Court were to exercise its powers under Section 73, Evidence Act, and ascertain whether the signatures on the impugned cheque are of the accused, it is crystal clear that the signatures on the impugned cheque are different from the specimen signatures of the accused as produced by DW-2. It is also quite clear that the signatures of the accused on the cheque in question differ from the signatures of the accused on the Notice under Section 251 CrPC, on the Statement under Section 313 CrPC and on his testimony as DW-1. The difference in these signatures is apparent to the naked eye and does not even require the evidence of an expert. Therefore, on a prima facie examination itself, the difference in signatures on the impugned cheque and on the specimen signatures of the accused produced by the bank witness as well as on the notice, statement of accused as well as the testimony of the accused is manifest. Therefore, the signatures of the accused not being proved on the impugned cheque; the presumption under Section 138 NI Act does not arise in favour of the complainant.
22. In such a scenario, the complainant is thus required to fulfill the standard required in a regular criminal trial i.e. proof beyond reasonable doubt. On the other hand, the onus on the accused is to create a doubt in the version of the complainant or raise a probable defence. Now, it is to be seen whether the complainant has been able to prove the ingredients of the CC no. 3164/2018 Triveni Prasad Tripathi Vs. Pawan Dabas PS North Rohini Page no. 11/14 Digitally signed by MANSI MANSI MALIK MALIK Date:
2023.05.09 17:09:14 +0530 offence under Section 138. The first ingredient required for an offence to be committed under Section 138 NI Act is that the drawer of the cheque should have issued the cheque for the discharge, in whole or in part of a legally enforceable debt or other liability. Therefore, for an offence to be committed u/s 138 NI Act it is necessary that the cheque should have been issued by the drawer in discharge of a legal liability.
23. In the present matter, the case of the complainant is that he had advanced a friendly loan of Rs. 5,00,000/- to the accused in the month of December 2015 for a period of one year. However, the complainant has deposed in his cross-examination that he did not know the accused directly and he was introduced to the accused by his friend Sh. Subhchand Jha. The complainant further deposed that he met the accused only two times till date and that he advanced the loan to the accused on the recommendation of Sh. Subhchand Jha. It is also stated that no receipt/agreement was executed between the parties with regard to the loan in question and that he did not verify the purpose for which the loan was taken by the accused as the loan was given on the words of Sh. Subhchand Jha. The complainant also stated that he has only filed a complaint case against the cheque in question and did not file any case for recovery of the rest of the loan amount.
24. From an analysis of the testimony of the complainant, it is clear that no written agreement was executed between the parties qua the loan in question. It is stated that the loan was advanced in the presence of Sh. Subhchand Jha and his son Sh. Satbir, however, the said persons have not been examined by the complainant in his evidence in order to support his CC no. 3164/2018 Triveni Prasad Tripathi Vs. Pawan Dabas PS North Rohini Page no. 12/14 Digitally signed by MANSI MANSI MALIK MALIK Date:
2023.05.09 17:09:22 +0530 case. It is also peculiar that the complainant did not know the accused directly and had met him only two times and merely on the basis of the recommendation of his friend Sh. Subhchand Jha, he advanced a loan of Rs. Rs. 5,00,000/- to the accused without even knowing the purpose for which the same was advanced to the accused. In such a scenario, the complainant was at liberty to examine the said Sh. Subhchand Jha but he failed to do so. It is also pertinent to mention that it is the case of the complainant that he had advanced a loan of Rs. 5,00,000/- to the accused, however, the present matter has only been filed for Rs. 1,00,000/-. No steps/legal proceedings have been initiated by the complainant for recovery of the remaining amount of Rs. 4,00,000/-. The same has been admitted by the complainant in his cross examination wherein he has stated that he has not filed any case for recovery of rest of the loan amount.
25. In view of the aforesaid observations, it can be said that the complainant has failed to show that he advanced a loan of Rs. 5,00,000/-to the accused beyond a reasonable doubt. When the factum of loan has not been proved by the complainant, it cannot be said that there was any legally enforceable debt/liability existing against the accused towards the complainant. In absence of existence of any legal liability of the accused towards the complainant, the cheque in question cannot be said to be issued in discharge of a legally enforceable debt or other liability. In such circumstances, one of the essential ingredients of the offence under Section 138, NI Act i.e. issuance of cheque in discharge of a legally enforceable debt/liability has not been proved by the complainant. As one of the essential ingredients has not been fulfilled, the Court finds no reason to discuss CC no. 3164/2018 Triveni Prasad Tripathi Vs. Pawan Dabas PS North Rohini Page no. 13/14 Digitally signed by MANSI MANSI MALIK MALIK Date:
2023.05.09 17:09:29 +0530 whether the remaining ingredients of Section 138 NI act have been fulfilled or not in the instant case.
26. Accordingly, this Court exonerates the accused Pawan Dabas for the offence under section 138 NI Act. The accused is hereby acquitted. Bail bonds are cancelled and sureties stand discharged. Endorsements, if any, stand cancelled. Digitally signed by MANSI MANSI Date:
MALIK MALIK 2023.05.09 17:09:35 +0530 Announced in open Court (MANSI MALIK) on 09th of May, 2023 Metropolitan Magistrate-03, North-West, Rohini Courts, Delhi CC no. 3164/2018 Triveni Prasad Tripathi Vs. Pawan Dabas PS North Rohini Page no. 14/14