Delhi District Court
Cc Ni Act No.4720/2021 Sunil Kumar vs Usman Salmani Page No.1 on 30 July, 2022
CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.1
IN THE COURT OF MS. AISHWARYA SHARMA,
METROPOLITAN MAGISTRATE (NI ACT) DIGITAL COURT02,
SOUTHEAST DISTRICT, SAKET COURT COMPLEX, NEW DELHI
Criminal Complaint No.: CC NI ACT/4720/2021
SUNIL KUMAR ... Complainant
Versus
USMAN SALMANI ... Accused
1. Name & address of the complainant: Sh. SUNIL KUMAR
S/O Sh. Haveli Ram
R/O 40A/1,3rd Floor, Ashok
Nagar, New Delhi, 110018
2. Name & address of the accused : Sh. USMAN SALMANI
WZ1B, Gali No.1, Hind Nagar,
Near MRV School, Tilak Nagar,
Delhi.
Also at C/O Ashu Properties/
Choice Boutique 11/21, Shop
No.24, Near Dayanand Adarsh
Vidhyalaya, Tilak Nagar Market,
New Delhi110018.
3. Offence complained of : U/S 138, The Negotiable
Instruments Act,1881.
4. Plea of accused : Pleaded not guilty.
5. Final Arguments : 25.07.2022
6. Date of Institution of case : 18.05.2021
7. Date of decision of the case : 30.07.2022
JUDGMENT
1. Vide this judgment, I shall dispose of the aforementioned complaint case filed by the complainant, Sunil Kumar (hereinafter referred to as the 'complainant') against accused, Usman Salmani (hereinafter referred to as the 'accused').
2. Factual Matrix: The complainant's case is that he is working in IT Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.30 15:25:27 +0530 CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.2 sector and he is has having decent salary and he has friendly terms with one person namely Sh. Ashok Asrani for last 10 years, who introduced him to the accused somewhere in October November 2018. The accused was engaged in property dealing business and his wife is running a boutique in the name of Choice Boutique. On request of Sh. Ashok Asrani, the complainant advanced a loan of Rs. 3,30,000/ by account transfer in November December, 2018 to the accused for his own needs and for expansion of his wife's business which was agreed to be returned within 3 months by first week of March, 2019. However, when the accused did not return the amount within the agreed period, after follow up by the complainant, the accused had given him one cheque on 05.02.2019 and the same was dishonoured and thereafter, again pursuant to follow up by the complainant, accused had returned him Rs. 1 Lakh and later on, on 13.03.2021, in part discharge of his liability for remaining amount, the accused had given one cheque bearing No.586260 dated 13.03.2021 for a sum of Rs. 1 lakh drawn on INDUSIND Bank, B23, B1, Community Centre, Janak Puri, New Delhi 110058 (hereinafter referred to as the 'cheque in question'), in favour of the complainant and the accused also assured the complainant to return the remaining amount along with interest. When the cheque in question was presented by the complainant, the same was dishonoured for the reason "Funds Insufficient"
vide return memo dated 17.03.2021. The complainant thereafter, sent a legal demand notice dated 02.04.2021 to the accused calling upon him to repay the loan amount within fifteen days of the receipt thereof. However, the accused did not come forward to repay his debt within the prescribed period of fifteen days. Hence, being aggrieved, the complainant filed the present complaint under section 138 of The Negotiable Instruments Act, 1881 on 18.05.2021 and prayed that the accused be summoned, tried and punished under section 138 of The Negotiable Instruments Act, 1881.
3. Summoning of accused: This court has summoned the accused after Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.30 15:25:37 +0530 CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.3 hearing the arguments at the stage of presummoning vide order dated 13.01.2022 and the accused entered appearance in the present case on 25.04.2022 and he was admitted to bail vide same order.
4. Notice: The court has framed notice of accusation under Section 251 Cr.P.C. on 06.05.2022. The substance of accusation was read over and explained to the accused and after being satisfied that the accused comprehended the same, the court recorded his plea.
5. Plea of the accused: The accused pleaded not guilty and claimed trial. He admitted his signatures on the impugned cheque however, denied filling particulars of the same. He also admitted that the address mentioned in the demand notice is his correct address, however he denied having received the legal demand notice. In his defence, he stated that he had business relations with the complainant and that he had given the cheque in question to the complainant as security for their transaction and that he has already paid the amount in cash but the complainant did not return him the cheque in question and has misused the same. On the same day the statement of accused for admission and denial was recorded U/S 294 Cr.P.C wherein he has admitted the correctness of dishonor memo.
6. Evidence on behalf of complainant: To prove his case prima facie, the complainant has filed his evidence under Section 200 of the Cr.P.C. by way of an affidavit which is Ex. CW1/A wherein the complainant has averred the same facts as are averred in the complaint. To prove the above claims, the complainant has also filed his bank statement EX. CW1/1 (Colly) to show the amount transferred to the complainant, EX. CW1/2 the original cheque in question bearing no. 586260 dated 13.03.2021 drawn in Indusind Bank, Janakpuri, New Delhi for Rs. 1,00,000/, EX. CW1/3 the return memo dated 17.03.2021, EX. CW1/4 the legal demand notice dated 02.04.2021 along with it's postal receipt EX.CW1/5 and tracking report EX. CW1/6 along with certificate U/S 65 B of Indian Evidence Act. Thereafter, the Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.30 15:25:48 +0530 CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.4 complainant was cross examined by Ld. Counsel for accused.
7. During his cross examination, CW1 stated that he is residing at 40A/1,3rd Floor, Ashok Nagar, New Delhi for the last 18 years and he is known to accused for the last 56 years. He stated that the accused is having his office at Tilak Nagar and he has been to the office of accused at the time of advancement of loan amount to the accused somewhere in November 2018 January 2019 and even prior to that with their common friend Sh. Ashok Ashrani, on whose instance, he had advanced loan of Rs. 3,30,000/ to the accused in four installments by RTGS from October 2018 to December 2018. He stated that no written agreement was executed at the time of advancement of loan as he had given the loan at the instance of their common friend. He admitted that though he files ITR, this loan is not reflected in his ITR. He further deposed that for the repayment of the loan advanced, the accused had given him one cheque of Rs. 1.5 lacs in February 2019, however, the same was dishonored. He has admitted receiving Rs. 1 Lakh out of the loan advanced from the accused. However, he stated that he has not received the balance amount of Rs. 2,30,000/. He also stated that after 13.03.2021, the accused has not given any amount to him in cash towards repayment of loan. This witness was shown bank statement of account of accused i.e. Ex. DW1/A and asked if he has received Rs 1 lacs from the accused on dated 05.02.2021 to which this witness answered in affirmative. He denied that he has received Rs. 50,000/ from the accused on 27.07.2019 by way of cheque. He also denied the suggestion he had business transaction with the accused for the last 56 years. He further denied the suggestion that accused had given him Rs 2 lacs after withdrawing the same from his account on 31.10.2018 for some business transaction / purchase of property. He further denied the suggestion that that in lieu the same, he had given two security cheques to the accused. He also denied that out of total Rs 3.30 lacs given by him to the accused, the accused had deducted Rs 2 lacs for the transaction above mentioned and thus, the Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.30 15:25:57 +0530 CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.5 accused had only liability for repayment of remaining Rs. 1.30 lacs. He also denied the suggestion that the accused had returned him his security cheques on 04.12.2018 and stated that he had never given any security cheque. He also denied the suggestion that on 04.12.2018, he had taken two blank security cheques from the accused. He also denied the suggestion that the accused had no legally enforceable liability towards him and he has misused the cheques of the accused and did not return the same despite demand of return of the same by the accused. Thereafter, CE was closed vide separate statement of complainant.
8. Examination of the accused under section 313 Cr.P.C.: The accused was examined under section 313 Cr.P.C. on 07.06.2022, wherein he stated that he was introduced to the complainant by one common friend Sh.Ashok Asrani, in October November 2018 as the complainant was also doing property business. He admitted that the complainant had given him Rs. 3,30,000/ in the year 2018 by account transfer in four installments. However, he stated that he had given Rs. 2 lakh in cash to the complainant on 31.10.2018. He denied having issued the cheque in question in partial discharge of his liability for the loan amount advanced by the complainant and stated that he gave his blank signed cheque as security to the complainant and the same has been misused by the complainant as he has adjusted Rs. 2 Lakh given by him to the complainant in cash on 31.10.2018 and for remaining amount, he had given Rs. 1 lakh to the complainant on 05.02.2019 by way of one cheque and further, Rs. 50,000/ to the complainant on 23.07.20219 by way of another cheque, thus, he gave Rs. 20,000/ extra to the complainant for his needs with the assurance that the same will be returned in 2025 days and the complainant had returned the same. Thus, he claimed that he has no liability towards the complainant and the complainant did not return his cheques despite demand on the pretext that the same was misplaced during shifting of his house and he claimed that the complainant is also in possession of his other blank cheque. He admitted his signatures on the Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.30 15:26:10 +0530 CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.6 cheque in question however, denied filling particulars of the same. He claimed that he did not receive legal demand notice. He admitted that the cheque in question was dishonoured with remarks "funds Insufficient" vide return memo dated 17.03.2021. he stated that he intends to lead DE.
9. Defence Evidence: The accused got himself examined as a witness U/S 315 Cr.PC as DW1 and stated that he knows the complainant for the last 5 6 years due to their property dealing business. He stated that on 25.10.2018, the complainant approached him demanding Rs. 2 lakh and he assured the complainant to give this amount in 45 days. Thereafter, he had withdrawn Rs. 2 lakh from his account on 31.10.2018 and had given this amount in cash to the complainant and entry of the same is also reflected in his bank pass book EX. DW1/A. He stated that he took two blank cheques from the complainant as security towards the loan taken by him and after 25 days of this transaction, he was in need of Rs. 3,30,000/ and demanded this amount from the complainant asking him to adjust his Rs. 2 Lakh and then complainant had transferred total Rs. 3,30,000/ in his bank account in 4 installments and also took back his two cheques which were given as security. He further stated that the complainant also obtained two blank cheques from him. He deposed that out of the balance amount of Rs. 1,30,000/, he had returned Rs. 1 lakh to the complainant by way of cheque on 05.02.2019. Thereafter, for payment of balance amount he had given Rs. 50,000/ to the complainant on 23.07.2019 against the remaining balance amount of Rs. 30,000/ as the complainant demanded Rs. 20,000/ extra for his needs. After 20 days of 23.07.2019, the complainant had returned Rs. 20,000/ to him in cash. He stated that since he had no outstanding liability towards the complainant, he demanded his cheques from the complainant, however, the complainant told him that he had lost the cheques during shifting of his house and assured to return the same after finding it. He also stated that apart from this complainant, the complainant has also filed one civil suit against him for recovery of Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.30 15:26:17 +0530 CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.7 Rs. 2,86,575/ in Tis Hazari Courts, Delhi and the record of the same is Ex. DW1/B. Thereafter, the accused was cross examined by Ld. Counsel for complainant.
10. During his cross examination, DW1 stated that he is engaged in property dealing business since last 2025 years and he was not aware of the occupation of the complainant and he got acquainted with the complainant through his friend Sh. Ashok Asrani who is also neighbour of the complainant. This witness was shown his account statement Ex.DW1/A and was asked to explain about debit entry of Rs. 2 Lakh on 31.10.2018 and he stated that he has withdrawn this amount of Rs. 2 lakh on 31.10.2018 and had given the same to the complainant. He further stated that he did not obtain any receipt from the complainant while handing over this amount of Rs 2 Lakh to the complainant. He admitted that he did not give any stop payment to his bank, when the complaint refused to return his cheques on the pretext that he has lost or misplaced the same. He also admitted that he did not file any police complaint against the complainant when he did not return his cheque. He further stated that he does not remember the cheque numbers which he had given as security to the complainant. Thereafter, DE was closed vide separate statement of accused.
11. Final Arguments: Learned counsel for the complainant with the help of Section 118 (a) and Section 139 of the Act argued that complainant has successfully proved guilt of accused for the commission of offence punishable under Section 138 of the Act beyond all reasonable doubt by way of ocular as well as documentary evidence on record. He further argued that the accused has failed to establish the return of entire loan amount in favour of the complainant as he has failed to furnish any receipt or other proof for the alleged amount of Rs. 2 Lakh given in cash to the complainant on 31.10.2018. On the other hand, Learned counsel for the accused argued that complainant has failed to establish the guilt of accused for the commission of offence under Section 138 of the Act beyond all reasonable doubts Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.30 15:26:27 +0530 CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.8 and the security cheque given by accused in lieu of loan transaction has been misused by complainant despite the fact that the accused had already returned entire loan amount to the complainant which is also established from the account statement of the accused, thus, the accused did not have any liability towards complainant as accused had made payment of entire borrowed amount in cash and by way of account transfer upto 23.07.2019.
12. I have heard both the learned counsel, pursued the material on record and considered the submissions advanced.
13. Appreciation of evidence and finding: Now coming to the merits of the case, I first deem it pertinent to enunciate the law relating to dishonour of cheque.
14. To bring home a liability under section 138 of The Negotiable Instruments Act, 1881, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, viz,
a) A person must have drawn a cheque on an account maintained 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;
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 unpaid; and
e) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.30 15:26:36 +0530 CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.9 due course of the cheque within 15 days of the receipt of the said notice.
Explanation: For the purpose ofor misplaced the same. He also admitted that he did not file any police complaint against the complainant when he did not return his cheque. this section, "debt or other liability" means a legally enforceable debt or other liability.
15. Thus, for securing conviction under section 138 of NIA following points are required to be proved:
a) The cheque was issued by the drawer in discharge of any debt or other liability.
b) It must be legally enforceable debt or liability.
c) The cheque must be presented by payee within period of 3 months or
it's validity whichever is earlier.
d) The cheque is dishonoured because of insufficient funds or it exceeds
the arrangement.
e) A legal notice in writing demanding the payment of cheque is issued
within 30 days of the receipt of information from the bank.
f) There is default by the drawer to make the payment within 15 days from the date of the receipt of notice.
g) The complaint is filed within 30 days from the date of cause of action.
16. 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 under Section 138 of the Act.
17. Since criminal liability can be attached by proving each element of the Section under which liability is sought to be enforced, I shall now go on to appreciate Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.30 15:27:00 +0530 CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.10 the evidence documentary and oral, in light of how compellingly it satisfies each of such ingredient, if at all.
A. A person must have drawn a cheque on an account maintained 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:
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 present case, the accused has admitted during his cross examination as well as during his statement under Section 313 of CrPC and NOA that he has obtained loan of Rs.3,30,000/from the complainant by way of account transfer in 4 instalments in November and December, 2018. Though Ld. Counsel for accused has tried to disprove the transaction by putting question to CW1 in his cross examination that he has not shown the loan transaction in his ITR, however, the same holds no relevance in view of admission of accused about receipt of Rs.3,30,000/from the complainant which is further corroborated by bank account statement of the complainant i.e. EX. CW1/1 (Colly). Though, the accused has denied having issued the cheque in question in partial discharge of his liability for payment of the loan amount, however, he has admitted having issued the cheque in question as security at the time of advancement of loan. The accused has also not disputed the fact that the cheque was not drawn from the account maintained by him. He has also admitted his signatures on the cheque in question, however, he has denied filling particulars of the same and claimed that the complainant has misused the same, by presenting the cheque despite repayment of entire loan amount. The accused has taken the defence that he was introduced to the complainant by a common friend Mr.Ashok Asrani in October November, 2018, as the complainant was also engaged in property dealing business and on demand of the complainant on 25.10.2018, he had given him Rs. 2 lakh in cash after withdrawing Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.30 15:27:09 +0530 CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.11 the same from his account on 31.10.2018 without executing any receipt of it and in lieu of the same, the complainant has issued two security cheques in his favour. Accused has claimed that after 2025 days of this transaction, he was in need of money and demanded Rs.3,30,000/ from the complainant which were transferred to him by the complainant in 4 instalments from 26.11.2018 to 04.12.2018, after adjusting his Rs. 2 Lakhs pursuant to which he has returned the security cheques of the complainant and the complainant had obtained two blank security cheques from the accused on 04.12.2018. However, later on he had returned Rs. 1 Lakh to the complainant by way of cheque on 05.02.2019 and for remaining Rs. 30,000/ he had given Rs. 50,000/ to the complainant on 23.07.2019 as the complainant demanded extra Rs. 20,000/ for his personal needs which is returned by complainant after few days.
19. It is pertinent to point out that accused has given all these suggestions to the complainant during his cross examination, however, the complainant has denied all these facts except that he has received Rs.1 lakh from the accused out of the total amount of Rs. 3,30,000/ advanced by him to the accused. It is pertinent to point out that the accused has no where mentioned or disclosed the details of the cheque which were supposedly handed over by the complainant to the accused at the time of advancement of Rs. 2 lakhs in cash on 31.10.2018. Further, though the accused has claimed that the complainant had taken 2 security cheques from him including the cheque in question at the time of advancement of loan, however, the accused has nowhere disclosed the particulars of other security cheque given by him to the complainant. The accused has claimed that he had given Rs.2 Lakhs to the complainant on 31.10.2018. However, he has not disclosed any ground /reason for which this amount was demanded by the complainant. It becomes relevant considering the fact that as per the bank account statement of the complainant, he already had balance of Rs. 3,89,027/ in his account on 31.10.2018. Similarly, the Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.30 15:27:18 +0530 CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.12 accused has claimed that he has given extra Rs. 20,000/ to the complainant for his personal needs on 23.07.2019, however, the same cannot be relied upon without corroboration as the complainant himself is having in hand monthly salary of Rs. 1,97,521/ . Further, the accused has claimed that the complainant is engaged in the same property dealing business, however, he has failed to furnish proof of the same and bank statement of the complainant supports his version that he is a Professional, drawing fixed monthly salary. The accused has also claimed that he has returned Rs. 1 lakh to the complainant out of the loan advanced on 05.02.2019 and this fact has not been disputed by the complainant. The accused has claimed that he has transferred Rs. 50,000/ to the complainant on 23.07.2019, however, this fact has been denied by the complainant. In the bank account statement, there is entry of transfer of Rs. 50,000/ in favor of one Sunil on 23.07.2019, however, the complainant during his arguments submitted that it could be some other person with the same name and he has never received Rs. 50,000/ from the accused on 23.07.2019. Even if the version of the accused is taken to be true and it is believed that he has transferred this amont of Rs. 50,000/ in favor of the complainant on 23.07.2019, even then, the accused has only been able to establish repayment of Rs. 1,50,000/ in favour of the complainant. After deducting this amount, the accused still had outstanding liability for payment of Rs.1,80,000/ towards the complainant which supports the version of the complainant that the cheque in question has been issued by the accused in partial discharge of loan liability. Though the accused has claimed to have made payment of entire cheque amount, however, as discussed above, he has failed to prove the same, as except for the bare averments made by accused, there is nothing on record to show that the amount of Rs. 2 lakh withdrawn by accused on 31.10.2018 was handed over by him to the complainant. Further, the same cannot be believed considering the fact that the parties did not know each other prior to October, 2018, so without execution of any written document, no reasonable Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.30 15:27:28 +0530 CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.13 person would hand over such a big sum of money to other person with whom he had no prior acquaintance. Though the accused has claimed that he gave this amount of Rs. 2 Lakh to the complainant after taking two security cheques from the complainant, however, the complainant has denied this fact and despite such denial of the complainant, the accused has nowhere disclosed details of such security cheques. The accused also has not examined any other person in his defence witness, though he could have examined their common friend Mr. Ashok Asrani to corroborate his version that he had given Rs. 2 Lakh in cash to the complainant on 31.10.2018. Thus, the defence of accused cannot be believed as the same is unsubstantiated and uncorroborated. On this point, I find support from the judgment pronounced by the Hon'ble High Court of Delhi in 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 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 presumption under Section 139 of N.I. Act, the accused, by cogent evidence, has to prove the circumstance under which cheques were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque. Unless the accused had proved that he acted like a normal businessman/prudent person entering into a contract he could not have rebutted the presumption u/s 139 N.I. Act. If no loan was given, but cheques were retained, he immediately would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant. Nothing was proved in this case."
20. Section 103 of the Indian Evidence Act, 1872 enunciates that the person who asserts a fact must prove the same unless the law otherwise provides. In the Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.30 15:27:39 +0530 CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.14 present case, the onus to prove that the accused has not issued the cheque in question to complainant for the purpose so alleged by the complainant rests on accused. The only recourse Accused took to prove his case is by examining himself as DW1 and he has claimed repayment of entire loan amount. However, as discussed above, the accused has failed to prove the factum of repayment of entire loan amount to the complainant. Further, if the version of the accused is taken to be true and it is believed that he had already returned the alleged amount taken from the complainant by 23.07.2019, then he must have taken some action seeking return of his security cheque from the complainant, especially when the cheque in question was dishonored on 17.03.2021 ,which is more than 1.5 years after the alleged date of repayment of entire amount i.e.23.07.2019. However, the accused has admittedly not taken any action for return of cheque and he has not lodged any complaint, this causes dubiety to lurk around the story of the defence and adverse interest can safely be drawn against the accused who has otherwise, failed to adduce any cogent evidence to show that he indeed did everything within his power and control, as a prudent person would do, to ensure that the cheque tendered by him was not misused. Failure, of the accused to prevent such misuse, renders the defence evidence weak. If the accused had no liability towards the complainant, to prevent misuse of his cheque, the accused could have at least given 'stop payment' instruction to his bank. However, admittedly, the cheque in question was dishonoured with remarks 'funds insufficient', thus, the version of the accused cannot be believed. Though the accused has claimed that he demanded return of his cheque from the complainant and the complainant did not return the same on the pretext that he has misplaced it during shifting of his house. However, the accused has not led any evidence of such demand made from the complainant and further, his version is also falsified from the fact that the complainant during his cross examination stated that he is living at the same address for last 18 years and the accused did not further cross examine and Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.30 15:27:45 +0530 CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.15 controverted the complainant with respect to this fact which shows that there was no relocation or shifting of the house by the complainant during relevant period.
21. Accused has also tried to disprove his liability by claiming that his blank signed cheque has been obtained by the complainant at the time of advancement of loan and the same has been misused by the complainant, despite repayment of the loan after filling it's particulars. However, as discussed above, the accused has failed to bring on record any substantive evidence to establish the factum of repayment and thus, to establish that the cheque was given as security at the time of advancement of loan and not in partial discharge of repayment of the loan amount. Even if, it is presumed for the sake of arguments that blank Cheque had been obtained by Complainant from accused as security and the contents of the same have not been filled by the accused, the said fact cannot extend any help to accused in the present case. The liability of accused has been assessed on the record. So, Complainant was having authority to fill and present said Cheque for encashment. When any person issues duly signed blank Cheque to another person, there is implied consent on his behalf, whereby, he gives authority to payee/holder that he may complete Cheque in all respect and present same for payment. As per provisions of Section 20 of Act, it is open to a person to sign and deliver blank and incomplete instrument and it is equally open for the holder to fill up blank and specify amount therein. Thus, the proof of the fact that dishonour Cheque had been obtained by Complainant as blank and later on filled in by officials of Complainant Corporation, by itself shall not be of any use for the accused. Similar position has also been laid down in cases titled as General Auto Sales v. Vijaylakshmi 2005(1) CCC 654(Kerala), Purushottam V. Manohar K. Deshmukh & Anr. 2007 STPL(DC) 988(BOM), Moideen V. Johny 2006 STPL(DC) 700(KER) and Prabhakar Xembhu V. Surendra V. Pai And Another 2006 STPL(DC) 660 (BOM), Sripati Singh V. State of Jharkhand & Ors Appeal Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.30 15:27:53 +0530 CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.16 No. 12691270 of 2021.
22. The statement of CW1 Sh.Sunil Kumar which is quite natural and seems to be trustworthy, establishes that the cheque in question was given by accused to complainant in discharge of loan given by complainant to accused, as complainant knew accused through their common fiend Sh. Ashok Asrani. Accused also admitted that he knew complainant through their common friend Sh. Ashok Asrani and the accused has also admitted obtaining loan of Rs. 3,30,000/ from the complainant and issuance of the cheque in question at the time of availing the loan. Section 139 of The Negotiable Instruments Act, 1881 also carves out a 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 the Section 118 of the same enactment which spells out another presumption in favour of the drawee that every negotiable instrument was drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. Having said that, what follows from the above is that the web of proof in a 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 in a trial under Section 138 NI Act thus, 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 fact. The court is obligated to draw presumptions and only when the contrary are proved by the defence, the same will be said to be rebutted. Whereas the standard of proof remains the same in such a trial, the reverse onus of proof on the defence is guided by the principle of preponderance of probabilities only. As rebuttal evidence, the accused merely has to prove that the cheque was not given for any consideration or that there was no legal liability in existence against him for which the negotiable instrument was given. In this regard, reliance can be placed on Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.30 15:28:01 +0530 CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.17 Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 SCC 16 wherein it was held as under:
"22. 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, ..., it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption has been established. 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 (...). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court may presume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable probability of the nonexistence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exists, the discretion is left with the Court to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man."Digitally signed by AISHWARYA
AISHWARYA SHARMA
SHARMA Date: 2022.07.30
15:28:18 +0530
CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.18
23. To rebut the presumption existing in favor of the complainant, the accused is required to prove that no legal liability was in existence against him on the date of drawl of the cheque and the accused has claimed so by stating that he had repaid the entire loan amount by 23.07.2019, however, as discussed above, he has failed to prove the same. Other defences taken by the accused also stands beseeched and the complainant's story along with the documents produced and admission by the accused regarding issuance of the cheque in favor of the complainant voluntarily, along with the statutory presumptions in the NI act under section 139 makes the complainant's version strong and believable. Therefore, considering the weight of the attending circumstances viz, the consistency in the prosecution story, the compelling documentary evidence adduced by the complainant and lastly, that the accused has not proved his defence to cause the probabilities to lie in his favour, the first element of Section 138 NI Act stands assembled.
B. That 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:
24. As far as this condition is concerned, the same is satisfied upon the perusal of the cheque in question, Ex. CW1/2 dated 13.03.2021 and the return memo Ex CW1/3 dt 17.03.2021, thus, being presented within prescribed period of limitation of three months. The defence did not adduce any evidence whatsoever to contradict the same.
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 Digitally signed by an agreement made with the bank: AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.30 15:28:36 +0530 CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.19
25. Section 146 of The Negotiable Instruments Act, 1881, in this regard comes into play which raises a presumption that the court shall presume the fact of dishonour of the cheque in case the cheque is returned vide a return memo having thereon the official mark denoting that the cheque has been dishonoured. Such bank slip or memo is a prima facie proof of dishonor. Further, the fact that the cheque in question has been dishonoured due to insufficient funds has not been disputed by the accused during trial, rather during his statement u/s 313 CrPC and his statement of admission and denial recorded U/S 294 CrPC, the accused has admitted correctness of the dishonor memo. Such admission of the accused clearly shows that he issued cheque from the account in question intentionally despite being aware that the same will not be honoured. Further, the defence has failed to rebut the said presumption as well. Hence, the condition is fulfilled.
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 unpaid
26. As far as the making of demand by sending a legal notice is concerned, the complainant had sent the legal notice Ex. CW1/4 dt. 02.04.2021 vide postal receipt EX. CW1/5 to the accused and as per the tracking report along with certificate U/S. 65 B of IEA, EX. CW1/6, the notice has been delivered upon the accused on 06.04.2021. The accused has however disputed service of legal notice. It has been argued that there is no material on record to show that legal notice was duly served upon the accused as per law. I have considered the submissions. However, there are no merits in it. The complainant has filed the copy of legal notice and postal receipt along with tracking report. The accused has admitted in his notice U/S 251 Cr.P.C that the address mentioned on the legal notice is his address. Once it is shown Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.30 15:29:21 +0530 CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.20 by the complainant that he had posted the legal notice at the correct address of the accused, the requirement of law stands satisfied. No further proof of service of legal notice is required. Further, as per the tracking report, the legal notice has been delivered upon the accused on 06.04.2021. The duty of the complainant was to give a legal notice. He has proved that he had given a legal notice to the accused under Section 138 N. I. Act. Hence, he has discharged the burden. It has been proved that complainant had issued a legal notice under Section 138 N.I. Act within limitation period after dishonouring of the cheque. The complaint is therefore maintainable on this aspect. I get strength from the judgment of the Hon'ble High Court of Delhi in Mayank Pathak Vs. Elcome Trading Company Pvt. Ltd. and Anr. 231 (2016) DLT
308. In the abovesaid matter before the Hon'ble High Court of Delhi, one of the ground of defence taken by the accused was that legal notice under Section 138 N. I. Act was not served upon him as it was not sent at the correct address of the petitioner. The Hon'ble High Court of Delhi, while dismissing this ground, has held that service of summons in such cases can be considered as service of notice and drawer of the cheque is having option to make the payment within 15 days of the receipt of the summons of the Court alongwith the copy of the complaint under Section 138 of the Act. The Hon'ble High Court has held as under:
"...17. Perusal of record shows that legal notice Ex.CW1/9 was sent on two addresses of the petitioner i.e. L7, Back Side Ground Floor, Lajpat NagarII, New Delhi and I90, Lower Ground Floor, Lajpat Nagar, Delhi. The legal notice sent on the former address was received back with the report that the addressee had left the address. Whereas, the notice sent on the latter address was not received back. The contention of the petitioner is that his address was never of I90, Lajpat Nagar but was L90, Lajpat NagarII. Even if for the sake of arguments, it is believed that the address was not correctly mentioned on the legal notice, the judgment of Hon'ble Apex Court in the case of Alavi Haji v. Papaletty Muhammed & Anr. 2007 (2) JCC (NI) 25 makes it clear that a if person does not pay within 15 days of Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.30 15:29:38 +0530 CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.21 receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot contend that there was no proper service of notice as required under Section 138 of the Act. Relevant para from the judgments is quoted hereunder: "It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. 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 under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring the statutory presumption to the contrary under Section 17 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran's case (supra), if the "giving of notice" in the context of Clause (b) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act." "12. In C.C. Alavi Haji's case (supra), it is made clear that drawer of the cheque is having option to make the payment within 15 days of the receipt of the summons of the Court along with the copy of the complaint under Section 138 of the Act. But in the present case, it is nowhere the case of the petitioner that despite having received the copy of the summons of the Court along with a copy of the complaint under Section 138 of the Act, he had made the payment. So, the service of legal notice was not mandated and the petitioner was having the opportunity to make the payment within 15 days of the receipt of the summons of the Court. Now, he cannot contend that there was no proper service of notice..."
27. On this point, I also find strength from the judgment of the Division Bench Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.30 15:29:45 +0530 CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.22 of the Hon'ble High Court of Delhi in Prakash Jewellers vs A.K. Jewellers 99 (2002) DLT 244. In this case also, the accused had taken the defence that he had not received the notice under Section 138 N. I. Act. The Hon'ble High Court dismissed the objections and held as under:
"8. There is no dispute with the proposition that a statutory obligation is cast on the holder of the cheque or the payee to give notice of demand to the drawer of the cheque asking him to make a payment of the amount covered by the cheque. It is a mandatory requirement to be satisfied for constituting an offence under Section
138. "9. It is also settled that it is not the giving of the notice which makes out an offence but its receipt which furnishes a cause of action to the complainant to file the complaint within statutory period.
"10. As it is, Section 138 does not prescribe any mode for giving of demand notice by the payee or holder of the cheque. But where such notice is served by post through registered post or postal certificate, etc. with the correct address of the drawer written on it, it would raise a presumption of service unless the drawer proves that it was not received by him in fact and that he was not responsible for such nonservice. This is in tune with the principle embodied in Section 27 of the General Clauses Act or even Rule 19A of Order V CPC.
"11. Section 27 of General Clauses Act deals with the presumption of service of notice sent by post and provides that service of such notice shall be deemed to have been affected unless the contrary is proved. This principles is equally applicable to the service of notice for purpose of Section 138 of Negotiable Instrument Act also. The same could be said about the provision of Rule 19A or Order V CPC which requires a court to make a declaration of summons having been duly served and dispatched through registered post notwithstanding that AD Card had been lost or misplaced or not received back within 30 days for some other reason. The relevant proviso provides: "Provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgement due, the declaration referred to in this subrule Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.30 15:30:09 +0530 CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.23 shall be made notwithstanding the fact that the acknowledgement having been lost or mislaid, or for other reason, has not been received by the Court within thirty days from the date of the issue of the summons." "12. Proceeding on this premise and going by this logic, we find no hitch in taking the view that payee or the holder of a cheque was as much entitled to claim the benefit of presumption of service once he had dispatched the demand notice through registered post or postal certificate on the correct address of the sendee written on it and where he had proved such dispatch through original receipts. It becomes inconsequential whether sender had not received back the AD card or that he could not produce or prove it for having misplaced it or for some other reason." (Emphasis supplied).
28. In the present case also, the complainant has proved that he had issued a legal notice under Section 138 N.I. Act at the correct address of the accused and as per the tracking report the same has been delivered. In any case, the service of legal notice is to be presumed in view of the judgment of the Hon'ble High Court of Delhi in Mayank Pathak Vs. Elcome Trading Company Pvt. Ltd. and Anr. 231 (2016) DLT 308. Therefore, the argument that the complaint is not maintainable on the ground of non service of legal notice is without any merits. I hold that the complaint is maintainable on this aspect. Thus, the fourth condition, to entail liability under section 138 of the Negotiable Instruments Act, 1881, in light of the above cited law and judgments, is fulfilled.
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:
29. The last condition is that the 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 fifteen days on the pretext that he owes no liability towards the complainant. Thus, the last limb of what Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.30 15:30:16 +0530 CC NI Act No.4720/2021 Sunil Kumar Vs.Usman Salmani Page No.24 will entail the liability against the accused is also structured.
30. Ratio: Since in the instant case, the accused has failed to lead any evidence to aid him in discharge of his onus and the presumption of law operates in favour of existence of debt or liability, I am of the opinion that the complainant has successfully proved all the essential ingredients of Section 138 of the Act. Accordingly, accused Usman Salmani is found guilty of offence U/S 138 NI Act. Let he be heard on point of sentence on another date.
31. Let the copy of this judgment be given to the convict free of cost and the same be also uploaded on CIS and Layers forthwith.
Digitally signed by AISHWARYA AISHWARYA SHARMA
SHARMA Date: 2022.07.30
15:30:23 +0530
Announced in the open court on (Aishwarya Sharma)
this day i.e. 30.07.2022 MM (N.I. ACT)Digital Court02/SED,
Saket Courts, New Delhi