Delhi District Court
Pardeep Soni vs Mohit Saxena on 31 October, 2023
IN THE COURT OF MS. VINERJEET KAUR
MM (N.I. ACT-03) SOUTH-WEST: DWARKA COURTS: NEW DELHI
CNR No.DLSW02-005852/2020
Ct. Case No.4314/2020
PS: Bindapur
U/s.138 N.I. Act.
PRADEEP SONI VS. MOHIT SAXENA
Date of Institution of case: 03.02.2020
Date of which Judgment reserved: 21.10.2023
Date on which judgment pronounced: 31.10.2023
JUDGMENT
1) Unique ID no. of the case : DLSW02-005852/2020
2) Name of complainant : Pradeep Soni,
S/o Sh. Prahlad Soni,
R/o WZG-48, School Road, Uttam
Nagar, New Delhi-59.
3) Name and address of accused : Mohit Saxena,
S/o Sh. Gyan Mohan Saxena,
R/o H.No. D/10, Pariyavaran
Complex, Delhi-110030.
4) Offence complained of : Section 138 N.I. Act
5) Plea of accused : Accused pleaded not guilty
and claimed trial
6) Final Order : Acquitted for the offence
punishable U/s.138 N.I. Act
7) Date of order : 31.10.2023
Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 1/23
BRIEF STATEMENT OF REASONS FOR THE DECISION:-
1. The present complaint has been filed under section 138 of the Negotiable Instruments Act, 1881 (hereinafter "NI Act") by Pardeep Soni (hereinafter "complainant") against Mohit Saxena (hereinafter "accused").
2. The substance of allegations, as contained in the complaint, are as follows:
A. That the complainant has a business of construction and interior material supplies and was on good terms with the accused. In the month of August, 2019, the accused had approach the complainant and bought material worth Rs.7,30,000/- on credit from him.
B. In discharge of his liability, the accused had issued a cheque bearing No. 000032 for Rs. 7,30,000/- dated 17.11.2019 drawn on HDFC Bank, DLF Quatab Enclave, Phase-I, Gurugram, Haryana with the assurance that the same would be encashed. C. That on instructions and assurances of the accused, complainant had presented the above said cheque bearing No. 000032 for Rs.7,30,000/- dated 17.11.2019 with his banker Andhra Bank, Uttam Nagar, New Delhi-59 for encashment. The same was returned unpaid by the bankers of the accused with the reasons "Payment stopped by drawer" vide cheque return memo dated 20.11.2019. D. That thereafter, the complainant sent the accused a legal notice dated 23.12.2019 through his counsel via speed post on 23.12.2019.
3. Accused's stance, on the contrary, at the stage of framing of notice under section Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 2/23 251 CrPC was that he denied any liability towards the complainant. He stayed that the complainant and accused were friends and used to work in the same office. Through a third party, they had together invested in crypto currency. Later, in 2017, they sustained losses. At that time, he had given the cheque in question to the complainant towards the losses incurred, as the complainant had put the entire blame of loss on him and was threatening him. Accused had also made certain online transfers of money in the account of the complainant to make good the losses. Accused further stated that the cheque in question has been misused by the complainant. He further stated that he had receive the legal notice but did not reply thereto. Accused admitted his signature on the cheque in question but denied the filling of other particulars there on.
4. Pre-summoning evidence was led by the complainant and on finding a prima facie case, the accused was summoned to face trial vide order dated 03.02.2020. On appearance, the accused was served with the notice of accusation under Section 251, Code of Criminal Procedure, 1973 (hereinafter "CrPC") on 06.05.2022, to which the accused pleaded not guilty and claimed trial. The accused admitted his signature on the cheque in question but denied filling of other details at this stage. The accused was granted an opportunity to cross-examine the complainant.
5. During the trial, the complainant has led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:-
Oral Evidence Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 3/23 CW-1/1 Testimony of complainant Documentary Evidence Ex. CW1/1 Cheque in question Ex. CW1/2 Cheque Return Memo Ex.CW1/3 (Colly.) Legal notice dated 23.12.2019 Ex.CW1/4 Postal receipt Ex.CW1/5 Tracking report Ex.CW1/A Evidence by way of affidavit Ex.CW1/6 (Colly.) Bills/Invoices (running into 15 pages). Ex.CW1/7 (Colly.) ITR for A.Y 2018-19, 2019-20, 2020-21, 2021-22 and 2022-23.
Ex.CW1/8 (Colly.) GST Registration Certificate, attested balance sheet, GST R-1 & GST R-3B.
6. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the circumstances appearing in evidence against him, his statement under Section 313 CrPC was recorded without oath. In reply, the accused submitted the following in his statement under section 313 CrPC:
● The accused stated that after year 2018, when the complainant had left the job from the company NTT Data, he was not in contact with the complainant. Accused further stated that he never visited the shop of the complainant nor is he aware about the nature of his business. He further stated that he had never purchased any goods from the complainant nor issued the aforementioned cheque in his favour towards the Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 4/23 alleged transaction.
● The accused further stated that the cheque in question was issued under pressure in 2017-18 when they had invested money in crypto currency. The cheque was issued in blank for security purposes and the words 'security cheque' were written with a pencil at the back side of the cheque. He has asked the complainant to return his cheque but he did not do so. He further stated that he had made the request to his bank to stop payment when he was scared that the complainant would misuse the cheque in question and had later tried enquiring from the bank as to who had tried to get the cheque encashed but the bank did not provide him with any information. Accused had never purchased any goods from the complainant either in cash or on credit. He had no intimation about the present complaint prior to receiving summons from the court. ● The accused further denied the receiving of legal notice sent by the complainant and the address mentioned thereon is incomplete. The accused took the same stance as in his defence while framing notice under Section 251 CrPC.
7. The accused opted to lead defence evidence during the statement under Section 313 CrPC, and he examined four witnesses DW-1 accused himself, DW-2 Sh. Balram Sharma, DW-3 Sh. Purushottam Mishra and DW-4 Sh. Harish Yadav.
8. Thereafter, the matter was listed for final arguments. After listening to final arguments from both sides, the matter was reserved for pronouncement. I have heard the learned counsels on both the sides and have given my thoughtful consideration to Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 5/23 the material appearing on record. The accused had relied upon the following Judgments i.e. Vijay Vs. Laxman & Anr. [(2013)3SCC86] by the Hon'ble Supreme Court of India, Birender Singh Vs. Sate (NCT of Delhi) [2008(1)JCC(NI)15] by the Hon'ble Delhi High Court, Mohd. Aslam Vs. Ramesh Thakur, [Crl. L.P. 103/2015, dt. 18.12.2015], by the Hon'ble Delhi High Court, M/s. Pinak Bharat and Company Vs. Anil Ramrao Naik (Criminal Appeal Nos. 1630 and 1631 of 2011) by Hon'ble the Bombay High Court, Mr. Kishor Sharma Vs. Sachin Dubey (Criminal Appeal 1325 of 2019) by the Hon'ble Supreme Court of India, Ajeet Seeds Limited Vs. K. Gopala Krishnaiah (2014) 12 SCC 685 by the Hon'ble supreme Court of India and Pulsive Technologies P. Ltd. Vs. State of Gujarat & Ors., (2014) 5SCC (Cri) 511 by the Hon'ble Supreme Court of India. I have pursued them and considered them at the time of writing this Judgment.
9. Before appreciation of evidence led on behalf of the parties, I would like to narrate the legal principles, relevant for adjudication of complaint under Section 138 of NI Act.
10. Section 138 of Negotiable Instruments Act, 1881 makes dishonour of cheques an offence. It provides that:
"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 Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 6/23 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 be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both".
11. 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:
(i) 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.
(ii) 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 by an agreement made with that bank.
(iii) 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 said to have committed an offence u/s 138 NI Act. Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 7/23
12. It is important to reproduce Sec.118 and Sec.139 of the NI Act here. Section 118
(a) of the NI Act provides that:
"until the contrary is proved, it shall be presumed that "that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration."
Further, Section 139 of the NI Act lays down that:
"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, of any debt or other liability.
13. The combined effect of section 118(a) NI Act and section 139 of the NI Act is that a presumption exists that the cheque was drawn for consideration and given by the accused for the discharge of debt or other liability. In Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 SCC 16), their Lordships of Hon'ble Supreme Court 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. Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 8/23 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 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" (ibid). 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.
In this regard, the Hon'ble Apex Court, having analysed all the concerned provisions in Basalingappa Vs. Mudibasappa, (2019) 5 SCC 418 : 2019 SCC OnLine SC 491 at page 432, came down to the following conclusion:
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner: 25.1. Once the execution of cheque is admitted Section 139 of theAct mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 9/23 presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come in the witness box to support his defence."
14. In this case, issuance of cheque, its presentation and dishonouring are not in dispute, inasmuch as the same have been duly proved on the basis of cogent evidence as well as admitted by the accused. The signature on the cheque in question Ex.CW1/1 is admitted by the accused. The aforesaid cheque in question was returned unpaid vide return memo bearing Ex.CW1/2. The legal notice bearing Ex.CW1/3 was sent to the accused vide postal receipt bearing Ex.CW1/4. The tracking report is Ex.CW1/5. In this regard, plea of defence of the accused in notice of accusation framed against him Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 10/23 under section 251 CrPC as well as in his statement recorded under Section 313 Cr.PC, the accused admitted that the cheque in question was signed by him. As far as the receipt of legal demand notice is concerned, the accused, at the time when notice was framed against him stated that he had received the legal notice, but did not reply to the same but at the stage of recording his statement under section 313 CrPC he said that he did not received the legal notice as the address mentioned thereon was incomplete. As per an affidavit furnished by the accused at the time of furnishing his bail bonds, his address is the same as mentioned on the legal notice. The only difference is that 'Paryavaran Complex' has not been mentioned in his address on the legal notice. Otherwise the address is the same. This does not seem to be a major anomaly and the accused has also admitted during the framing of notice against him, that he had received the legal notice. Therefore, It emerges that the legal demand notice has been properly addressed and posted by the complainant, as also proved by the postal receipts, therefore the same is presumed to have been delivered under section 114 of the Indian Evidence Act, 1872 and Section 27 of General Clauses Act and in view of the law laid down in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 3 SCC (Cri) wherein the Hon'ble Supreme Court held as follows:
"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 statutory presumption to the contrary under Section 27 of the GC Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 11/23 Act and Section 114 of the Evidence Act."
In K. Bhaskaran vs Sankaran Vaidhyan Balan and Anr, Appeal (crl.) 1015 of 1999 (SC) (hereinafter K Bhaskaran), the Hon'ble SC observed:
On the part of the payee he has to make a demand by `giving a notice' in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within
15 days from the date of such `giving' the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days `of the receipt' of the said notice. It is, therefore, clear that `giving notice' in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer in the correct address.
Thus, once the notice is served at the correct address, the payee has a presumption which accrues in his favour. In the present matter, the correctness of address has been admitted by the accused, therefore, the presumption under section 27 GCA applies.
15. In view of the above-mentioned circumstances, the presumptions under sections 139 and 118 NI Act that the cheque in question was for a legally recoverable debt/liability stand activated.
Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 12/23
16. Simply stated, the accused has to offer on something that makes his version probable. This the accused can do by both successfully raising and proving competing version to the case of the complainant or by perforating the case of the complainant. Opportunity to do this arises for the accused at four stages: -
(i) When the accused puts forth defence at the time when his plea of defence as recorded after the substance of acquisition explained to him u/s 251 CrPC
(ii) When the accused cross examines the complainant pursuant to his application u/S.145(2) N.I. Act being allowed.
(iii) When statement of the accused is recorded u/s 313 CrPC and
(iv) When defence witness was examined.
The stand taken by the accused at all these stages shall be examined to determine if the accused could raise a probable defence.
17. Now, it is evident that the onus was on the accused to rebut the statutory presumption. Therefore, the accused was required to bring on record such facts and circumstances, which would make the court believe that he had not issued the cheque in question for the alleged purpose and that the complainant had misused his cheque.
18. The arguments of the complainant are that the accused has failed to repay the amount due from him, and the cheque issued by the accused in discharge of his legally Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 13/23 enforceable dues has been dishonoured. The ingredients of the offence under section 138 NI act have been fulfilled and the presumption under section 118 and 139 of the act stands activated. Therefore, the accused is liable for the offence of dishonour of cheque. The complainant further argues that the accused person has been unable to prove his version of events with any substantial evidence. He argues that the accused has taken a false and frivolous defence and has been inconsistent. His contention is that the presumption is raised against the accused and he has not been able to adduce any evidence to rebut the same. The complainant produced his GST registration certificate to prove that he is the proprietor of Soni constructions and interiors. The same is exhibit CW 1/7 and has not been challenged by the accused.
19. Per contra, the case of the accused is that he had not purchased any goods from the complainant. The cheque in question was handed over to the complainant under pressure as security in 2017- 2018 when they worked together in an IT firm, and had invested money in crypto currency. He stated that they had suffered losses in the above mentioned investment and thereafter the complainant had started threatening him and had demanded a cheque stating that it was merely security and he would not use it. He stated that he had also made some payments to the complainant to make good the losses that they had incurred together. The accused stated that he feared that the complainant might misuse his cheque, therefore he had informed his bank that the payment was not to be made against the said cheque. He further argued that the receipts brought on record by the complainant are fake and he has never visited the Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 14/23 shop of the complainant or purchased any goods from him. He has also pointed out various contradictions in the testimony of the complainant and the documents produced by him which show that the complainant has not come to the court with clean hands.
20. The first objection raised by the counsel for the accused is that the present complaint is not maintainable as the legal notice dated 23.12.2019 is beyond the statutory period of 30 days from the date of dishonour of the cheque in question. The cheque return memo shows the return date as 20.11.2019. However, on 04.02.2020, Andhra bank issued a clarification, which stated that though the cheque was dishonoured on 20.11.2019, the said cheque was returned to the depositor on 26.11.2019 with the return memo. The legal notice has to be sent within 30 days of receiving the information about the dishonour of the cheque. The legal notice dated 23.12.2019 was sent on 23.12.2019 as per the postal receipts in this case. Therefore the legal notice was not sent beyond limitation. Hence, the first objection by the counsel stands rejected.
21. Thereafter, In his defence, the accused examined two other witnesses who affirmed that there were no transactions related to the sale or purchase of goods as alleged by the complainant. He examined one Balram Sharma as DW2 who corroborated the version of the accused. In fact, the complainant has filed a complaint against the said witness under section 138 NI Act on similar grounds and the trial of Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 15/23 that case took place parallel to the trial of the present case at the request of the parties. DW2 stated that the cheque in question was handed by the accused to the complainant under coercion after they had incurred losses in their crypto currency investment. During his cross-examination, complainant failed to discredit his testimony other than by questioning his credibility on the ground that he or the accused had failed to file any police complaint or a complaint before any court with regard to the threats extended by the complaint. Thereafter one Sri Purushottam Mishra was examined as DW3 and he stated that he along with the complainant Pradeep Soni, DW2 Balram Sharma, and the accused had invested some money in crypto currency and the venture had incurred losses. He stated that the complainant thereafter started threatening Mohit Saxena, Balram Sharma and him and obtained blank signed cheques from Balram Sharma and the accused. He stated that the complainant had repeatedly asked him for a cheque but he refused to give it to him. He stated that as per his knowledge the accused or Mr. Mohit Saxena had never purchased any goods from the complainant. During his cross-examination, as with the case of DW2, the complainant failed to discredit his testimony other than by questioning his credibility on the ground that he had not filed any complaint regarding the threats extended by the complainant. Although the failure of the witnesses to file a police complaint is important, it is not such as to take away the credibility of their testimony. It is true that they gave the evidence at the asking of the accused but the accused has placed reliance on certain other evidences which corroborate the version of the accused and his witnesses. Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 16/23
22. The accused also examined a bank witness from HDFC bank. He brought on record a document which is exhibit DW4/A and as per the document the accused had issued an instruction on 21.06.2019 that the payment to cheque number 000032 was to be stopped as he had lost his cheque-book. As per the complainant, the cheque was issued to him in November 2019. It seems improbable that the accused would first issue a stop payment instruction on a cheque and then issued the same cheque to a person in discharge of some liability. It is more probable that the accused had handed over the cheque to the complainant sometime in 2018 and had thereafter issued a stop payment instruction. This explanation is also in keeping with the version narrated by the accused. The counsel for the complainant has argued that the reason the accused gave to the bank, for stopping payment is that he had lost his cheque-book whereas in the present complaint case he has stated that he gave the stop payment instruction as he had a fear that the complainant would misuse his cheque. He argued that the accused had lied and was therefore not to be believed. Although the counsel for the complainant is right that the accused has given different reasons for stopping payment, but this has been explained by the counsel for the accused by stating that the accused had simply selected one of the reasons offered as he did not feel the need to go into details while issuing the instructions to the bank. This explanation is to the satisfaction of the court. The counsel for the accused has then pointed out that the accused has not been able to give a straight answer as to when he was handed over the cheque in question by the accused. He has made contradictory statements during his cross- examination at the stage of complainant's evidence and in his evidence affidavit. He Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 17/23 has constantly changed his stand when subjected to questioning. These facts are sufficient to shift the burden on the complainant to prove his case beyond reasonable doubt.
23. The counsel for the accused has pointed out that there are multiple discrepancies in the testimony of the complainant and the documents produced by him. He stated that the complainant has filed the present complaint for the sum of Rs.7,30,000/- only and during his cross-examination, he stated that he had sold goods worth Rs.7,33,000/- to the accused. The total calculation of the invoices filed by him that is Ex.CW1/6 (colly) in the court is Rs.7,32,456/-and as per his balance sheet for the closing year 2020, Ex.CW1/8 the amount that is due from the accused is shown as Rs.7,33,781/-. The complainant has failed to explain any of these discrepancies. On being asked if he had offered any discount to the accused he responded that he did not offer any such discount. Further he has not shown any of these amounts in his income tax or GST returns. This fact goes on to raise some doubt about the credibility of the complainant's case.
24. The complainant during his cross-examination stated that he had supplied goods to the accused between the months of August 2019 and November 2009. However, he has not produced any invoices for the months of August, September and October. Also, the invoices of the goods purchased that the complainant has produced are dated from 1 November 2019 till 14 November 2019 and are numbered between 018 and 046. The Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 18/23 counsel for the accused has brought to the attention of the court that the invoice that are produced by the complainant in the case of Pradeep Soni Vs. Balram Sharma,(case number.4689/2020), are dated from 1 November till 15 November 2019 and are numbered between 021 and 047. He has argued that going by the invoice numbers, it can be presumed that the complainant did not sell any goods to any other customer in these 15 days. This seems unreasonable and abnormal considering the normal course of business. Moreover, during the cross-examination, the complainant has admitted that other than for the accused and for Balram Sharma, he has not mentioned the father's name of any of his customers on the invoices. Further and most importantly, there is no receiving on any of these invoices on any date. These four point go on to show that the invoices are not genuine and have been created on a later date to create evidence against the accused. Once this point has been raised, the burden of proof shifts on the complainant to give an explanation with regard to the above raised point. This raises serious doubt about the veracity of the complainant.
25. The accused has argued that in his cross-examination the complainant has stated that there was one other person who helped him with the every day affairs of his firm, but he has not examined him as a witnesses to the alleged sale and purchase transaction. This leads to presumption that he did not examine this witness as the sale purchase transaction did not take place and had he examined him, his testimony would not have been favourable to him. The complainant has also stated that he gave goods on credit basis to two of his other friends besides the complainant and Balram Sharma. Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 19/23 Despite the counsel for the accused specifically requesting him to produce the invoices wherein he had given goods on credit basis to his friend, he failed to produce said documents, or to examine those friends. His failure to produce the invoices or examine his friends further make his testimony unreliable.
26. The accused submits that there are multiple contradictions in the testimony of the complainant. For example, on one hand, he has stated that he can tell the address where the goods were delivered to the accused and on the other hand, he has deposed that the accused used to come and collect the goods himself. The second example is that he stated that the accused had purchased the alleged goods for his business but he had also said that the accused had purchased goods for his flat situated in Dwarka. He has failed to bring on record any evidence in favour of any of these statements or offered any clarification regarding them. These points further establish the defence of the accused.
27. The accused was required to prove his case on the touchstone of benchmark set in the judgment as held by Hon'ble Supreme Court of India in Kumar Exports vs Sharma Carpets (2009)2 SCC 513, wherein the Hon'ble Apex Court had held as follows:
"The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the nonexistence of Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 20/23 consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. 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 consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither 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 served 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 accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 21/23 accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act.
The accused has also an option to prove the nonexistence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue."
28. The accused was required to bring on record such facts and circumstances, which would make the court believe that he did not owe the complainant a sum of Rs.7,30,000/- and he has misused the cheque which was given under pressure. Considering the discussion above, it seems reasonable to say that the accused has been Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 22/23 able to establish his version of events. He has been consistent in his defence and has produced sufficient evidence to support his case. Therefore, the court is of the view that the cheque is question was not issued for discharge of legally enforceable debt of Rs.7,30,000/-. The complainant has misused the cheque. The accused has been able to raise a probable defence. Since the accused has discharged the burden it was the complainant who has to prove the guilt of accused beyond reasonable doubt.
29. To recapitulate the above discussion, the complainant has been unsuccessful in establishing his case beyond reasonable doubt that the accused had issued the cheque in question in discharge of her legally enforceable liability. The presumptions under Section 118 and Section 139 of N.I. Act have been successfully rebutted. The accused has been able to raise a probable defence. The defence of the accused that the complainant misused the cheque in question and there was no legal liability of Rs.7,30,000/- is proved beyond reasonable doubt.
30. Resultantly, the complaint of the complainant is dismissed, and the accused Mohit Saxena, is hereby acquitted of the offence under Section 138 of the Negotiable Instruments Act, 1881. Digitally signed Vinerjeet by Vinerjeet kaur Sandhu Pronounced in the open court kaur Date:
on 31.10.2023 Sandhu 2023.10.31
15:11:35 +0530
(VINERJEET KAUR)
MM (NI Act-03), Dwarka Courts,
New Delhi (South West)
31.10.2023.
Ct. Case No.4314/2020 Pardeep Soni Vs. Mohit Saxena 23/23