Delhi District Court
Sandeep Kumar vs Deepak Kumar on 23 December, 2023
IN THE COURT OF SH. ANMOL NOHRIA,
METROPOLITAN MAGISTRATE (NI ACT) Digital Court, KKD Courts, DELHI
CNR No. : DLSH02003592021
CC No. : 859/2021
U/s : 138 N. I. Act
P.S : Farsh Bazar
Sandeep Kumar Vs. Deepak Kumar
JUDGMENT
1. Sl. No. of the case : 859/2021
2. Date of institution of the case : 31.05.2021
3. Name of complainant : Sh. Sandeep Kumar,
S/o Sh. Suresh Chand Sharma,
R/o House No. 1/2166A, East
Ram Nagar, Shahdara, Delhi-32
4. Name of accused, parentage
and address : Sh. Deepak Kumar,
S/o Sh. Prahlad Singh,
R/o D-195, Gali No.7, Jagat Puri,
Mandoli Road, Shahdara,Delhi-
93
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5. Offence complained of : 138 N. I. Act
6. Plea of accused : Accused pleaded not
guilty
7. Final order : Acquitted
8. Date on which order was
reserved : 31.10.2023
9. Date of pronouncement : 23.12.2023
1. The instant matter has originated out of a complaint under section 200 Cr.PC read with Section 142 Negotiable Instruments Act (hereinafter referred to as the 'NI Act'), filed by the complainant against the accused complaining of offence under Section 138 NI Act alleging that cheque bearing No 047812 dt 05.02.2021 for a sum of Rs. 3,50,000/- Punjab National Bank, Shahdara, Delhi-110093 issued by the accused in favour of the complainant, in discharge of a legal debt or other liability, has been dishonored and the accused has not paid the said amount even after receiving the prescribed legal demand notice. By virtue of this judgment, the present complaint is being disposed off.
CC No.859/2021Sandeep Kumar Vs. Deepak Kumar Page no 2 of25 (Anmol Nohria) MM (NI Act) (Digital Court) BRIEF REASONS FOR THE DECISION OF THE CASE Factual Background of the case:
2. Briefly stated facts of this case as per complaint are that the complainant and the accused are known to each other from the last ten years. The accused was facing some financial crises, hence the accused approached to the complainant for financial assistance with an assurance to return the same within time. Thereafter the complainant gave a sum of Rs. 3,50,000/-. The accused had thereafter issued cheque bearing No 047812 dt 05.02.2021 for a sum of Rs. 3,50,000/- Punjab National Bank, Shahdara, Delhi-110093 in discharge of the same. Thereafter, the complainant, as per the accused instruction the complainant presented cheque in his bank Kotak Mahindra Bank, Delhi Shahdara, but however upon presentation the same was dishonoured on 08.02.2021 with the remarks "funds insufficient". Thereafter, the complainant issued a legal notice through speed post dated 05.03.2021 to the accused calling upon the accused to make payment. But, no payment was made by the accused and hence, the present complaint was filed for offence under Section 138 Negotiable Instruments Act.
Proceedings Before Court
3. On the basis of pre-summoning evidence, accused was summoned by the Court for the offence under Section 138 of Negotiable Instrument Act. The accused put in his own appearance and thereafter notice under Section 251 Cr.P.C. was framed upon the accused on 04.11.2022, to which accused pleaded not guilty and claimed trial. In his plea of defence, the accused stated that he had borrowed CC No.859/2021 Sandeep Kumar Vs. Deepak Kumar Page no 3 of25 (Anmol Nohria) MM (NI Act) (Digital Court) Rs. 42,500/- from the complainant. He had issued the cheque in question as security for the same, he regularly kept on paying interest on the same. However, during the pandemic, he could not pay the interest. Thereafter, the complainant misused his cheque and filled the amount in question and got the cheque dishonoured. He does not have the legal liability towards the complainant as stated in the complaint.
4. The accused had orally prayed under section 145 (2) cross examine the complainant. By order dated 04.11.2022, the said request was allowed on the no objection given by the counsel for the complainant with respect to the same and accused was granted the liberty to cross examine the complainant under section 145(2).
5. During the trial, complainant has led the oral and documentary evidence against the accused to prove her case beyond reasonable doubt. The evidence led is as under:
Oral Evidence CW1 Sh. Sandeep Kumar (Complainant) Documentary Evidence Mark A Statement of account of my bank Ex. CW1/1 Cheque bearing no. 047812 dt. 05.02.2021 Ex. CW1/2 Cheque return memo dated 08.02.2021 Ex. CW1/3 Legal demand notice dated 04.03.2021 Ex. CW1/4 Cheque return memo dated 05.07.2021 CC No.859/2021 Sandeep Kumar Vs. Deepak Kumar Page no 4 of25 (Anmol Nohria) MM (NI Act) (Digital Court) Ex. CW1/5 Postal receipts Ex. CW-1/6, CW-1/7 Courier receipts and CW-1/8 Ex. CW1/9 Whatsapp screenshort Ex. CW1/10 Corrigendum dated 08.04.2021 Ex. CW1/11(colly) Postal receipts of corrigendum Ex. CW1/12 Whatsapp screenshort of corrigendum Ex. CW1/13 Tracking reports of corrigendum Ex.CW1/14 Certified u/s 65 B of Indian Evidence Act Mark B Statement of account of complainant's bank CW1/A Complainant's evidence by way of affidavit.
Complainant stepped in witness box as CW-1 and he adopted his affidavit of pre-summoning as his evidence, reiterating almost all facts of complaint, stating all exhibits available on record. The complainant was cross-examined at length by the counsel for the accused on 20.02.2023 and 09.05.2023.
6. Complainant evidence was closed vide order dated 09.05.2023 and thereafter, the statement of accused was recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 on 03.06.2023. Incriminating evidence was put to him. Accused denied all the allegations but admitted the receipt of legal demand notice. He further stated that that he had never received cash from the complainant. He had repaid Rs. 50,000/- in small installments to the complainant and he does not have liability as stated by the complainant in the complaint.
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7. Thereafter, the accused has led the oral evidence and documentary evidence to support his defence. The accused examined HC Ampit Kumar as DW1 and proved the documents Ex. DW1/X/1, Ex. DW1/X/2 and Ex. DW1/X/3.No other witness was examined by accused & defence evidence was closed vide order dated 25.08.2023 and thereafter, matter was fixed for final arguments.
8. Afterwards, final arguments were heard on behalf of both the parties and after hearing the arguments, trial was concluded.
It has been argued on behalf of the complainant that the complainant has been able to prove his case beyond reasonable doubt with help of presumptions and independent evidence; and the accused has not been able to rebut the case of the complainant by his own evidence or by cross examination of the complainant.
Per Contra, it has been argued for the accused that the case of complainant is full of infirmities and the complainant has not been able to withstand the test of cross examination. It is further argued that complainant has failed to prove the advancement of money to the accused and his case is not proved beyond reasonable doubt; hence,the accused is entitled to be acquitted. He has placed reliance upon :-
I. Kamala S. Vs. Vidhyadharan M. J. & Anr., (2007) 2 SCC (Cri.) 498 II. S.K. Jain Vs. Vijay Kalra, 2014 (2) Civil Court Cases 372 (Delhi) III. Devender Kumar Vs. Khemchand, 2016 (1) CLJ 112 Del.
IV. Vijay Vs. Laxman & Anr., 2013 V AD (SC) 243. CC No.859/2021 Sandeep Kumar Vs. Deepak Kumar Page no 6 of25 (Anmol Nohria) MM (NI Act) (Digital Court) V. John Fernandes Vs. Noor Jahan Khan & Anr., 2011 (3) Civil Court Cases 104 (Bombay)
9. I have heard the counsels for both the parties, perused the record and have gone through relevant provisions of the law and the judgments relied upon by both the parties.
INGREDIENTS OF OFFENCE AND DISCUSSION-
10. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 138 of NI Act, the prosecution must fulfill all the essential ingredients of the offence. Perusal of the bare provision reveals the following necessary ingredients of the offence:-
First Ingredient: The cheque was drawn by a person on an account maintained by him for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity; Second Ingredient: The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability; Third Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank; Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank;CC No.859/2021
Sandeep Kumar Vs. Deepak Kumar Page no 7 of25 (Anmol Nohria) MM (NI Act) (Digital Court) Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
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 NI Act.
APPRECIATION OF EVIDENCE- .
11. The accused can only be held guilty of the offence under Section 138 NI Act if the above-mentioned ingredients are proved by the complainant co- extensively. Additionally, the conditions stipulated under Section 142 NI Act have to be fulfilled. Notably, there is no dispute qua the conditions of Section 142. The present complaint has been filed within the limitation period and the bank of the complainant is located in the jurisdiction of PS Farsh Bazaar, which is within the jurisdiction of this court.
12. Notably, there is no dispute qua the proof of first, third, fourth and fifth ingredient. The complainant had proved the original cheque vide Ex. CW1/2 which the accused had not disputed as being drawn on the account of the accused. It was not disputed that the cheque in question was presented within its validity period. The cheque in question was returned unpaid vide return memo Ex. CW1/3 and the same has been admitted by the accused under his statement u/s 313 Cr.P.C but denied by him in his statement u/s 294. However, it is noteworthy that Section 146 NI Act provides that bank's memo is prima facie evidence of the fact of CC No.859/2021 Sandeep Kumar Vs. Deepak Kumar Page no 8 of25 (Anmol Nohria) MM (NI Act) (Digital Court) dishonour of cheque. The complainant had filed original cheque returning memo Ex.CW1/3 pertaining to dishonour of the said cheque which are duly signed and stamped by the bank officials and accused led no evidence to rebut the presumption that the said memo was not issued by his banker in relation to dishonour of the said cheque. As hence, the same stands proved.
So far as the service of demand legal notice Ex. CW1/4 is concerned, the accused has admitted the receipt of same in notice u/s 251 Cr.P.C as well as his statement u/s 294 Cr.P.C as well as his statement u/s 313 Cr.P.C. In view of the admission by the accused of the legal demand notice Ex. CW1/4, the same stands proved as non- disputed. Consequently postal receipt Ex. CW 1/5 (colly), courier receipts Ex. CW1/6 to Ex. CW1/8, also stand proved in view of the admission above.
13. The second ingredient required for proving an offence u/s138 is that "The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability". As per the scheme of the NI Act, once the accused admits signature on the cheque in question, certain presumptions are drawn, which result in shifting of onus. Section 118(a) of the NI Act lays down the presumption that every negotiable instrument was made or drawn for consideration. Another presumption is enumerated in Section 139 of NI Act. The provision lays down the presumption that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability.
14. The combined effect of these two provisions is a presumption that the cheque was drawn for consideration and given by the accused for the discharge of CC No.859/2021 Sandeep Kumar Vs. Deepak Kumar Page no 9 of25 (Anmol Nohria) MM (NI Act) (Digital Court) debt or other liability. Both the sections use the expression "shall", which makes it imperative for the court to raise the presumptions, once the foundational facts required for the same are proved. Reliance is placed upon the judgment of the Hon'ble Supreme Court, Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16.
15. However, the presumptions are rebuttable presumptions and it is for the accused to rebut the same by establishing a probable defence. The principles pertaining to the presumptions and the onus of proof were recently summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418. In the instant case, the accused has raised the contention that there does not exist debt as per the version of the complainant.
16. The primary defence raised by the accused was that he had borrowed Rs. 42500/- from the complainant and issued a security cheque, thereafter he kept on paying interest till Covid lockdown but when he could not pay the same, the com- plainant misused his security cheque to file the present case and that he doesn't have liability as stated in the complaint. Notably, the complainant in his cross ex- amination has stated that the money was advanced to the accused in the year 2014, 2015 and 2016. The Supreme Court in Krishna Janardhan Bhat vs. Dattatraya G. Hedge, (2008) 4 SCC 54, has held as under:-
"The proviso appended to the said section provides for compli- ance of legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the mat-CC No.859/2021
Sandeep Kumar Vs. Deepak Kumar Page no 10 of25 (Anmol Nohria) MM (NI Act) (Digital Court) ter. Existence of legally recoverable debt is not a matter of pre- sumption under Section 139 of the Act. It merely raises a pre- sumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability"
17. Thus, at the threshold it becomes necessary before deciding whether the debt exists or not, to decide whether the alleged debt is legally recoverable or not.
18. The proviso appended to the section 138 section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.
19. As per the explanation appended to Section 138 the meaning of the expression "debt or other liability" for the purpose of Section 138 means a legally enforceable debt or other liability. The Explanation leaves no manner of doubt that to attract an offence under Section 138, there should be a legally enforceable debt or other liability subsisting on the date of drawl of the cheque. Thus, it is upon the complainant to prove the existence of debt that was legally recoverable it is then only that the presumption under Section 139 will come into play and the court can presume that the dishonoured cheque was issued for legally recoverable debt or other liability.
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20. At this stage reference can be drawn from the case titled as Jage Ram Karan Singh and Anr vs. State and Anr, [2019 SCC online Del. 9486] wherein it has been held:
"33. Therefore, I do not agree with the contention raised by the learned counsel for the petitioners that the Appellate Court has misinterpreted Section 139 of the NI Act. The Appellate Court has rightly held that the alleged responsibility of the respondent No.2, if any, had already become time-barred as on the date of the issuance of cheque and, therefore, the same cannot be said to be in discharge of a legally enforceable debt or liability. The judgments relied upon by the petitioners are of no help in view of the legal position and the law discussed hereinabove."
21. Also the Hon'ble Kerala High Court in Sasseriyil Joseph v. Devassia in SLP (Crl.) 1785/2001 has observed as follows:
"We have heard learned counsel for the petitioner. We have perused the judgment of the High Court of Kerala in Crim- inal Appeal No. 161 of 1994 confirming the judgment/order of acquittal passed by the Addl. Sessions Judge, Thalassery in Criminal Appeal No. 212 of 1992 holding inter alia that the cheque in question having been issued by the accused for due which was barred by limitation the penal provision under Section 138 of the Negotiable Instruments Act is not attracted in the case.
On the facts of the case as available on the records and the clear and unambiguous provision in the explanation to Sec- tion 138 of the Negotiable Instruments Act the judgment of the lower appellate Court as confirmed by the High Court is unassailed.
Therefore, the special leave petition is dismissed"CC No.859/2021
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22. Further, the Hon'ble Supreme Court in Vijay Polymers Pvt. Ltd. & Anr. v. Vinnay Aggarwal, 2009 (110) DRJ 592 has observed that, cheques issued for a time-barred debt would not fall within the definition of 'legally enforceable debt', which is the essential requirement for a complaint under Section 138 of the NI Act; the extended meaning of debt or liability has been explained in the Explanation to the Section which means a legally enforceable debt or liability.
23. In the instant case the complainant has not mentioned any date of advancement in his pleadings/complaint; however, during the cross examination he has stated that he had advanced money to the accused in 2014,2015 and 2016 after withdrawing the same from his bank account but he does not remember any specific date of advancement to the accused.
24. As per the law of limitation the said amount was recoverable within a period of 3 years from when the same became due, however the complainant neither in his complainant nor in his cross examination has stated when the amount was said to be returned by the accused. Thus as per the law of limitation the limitation period of 3 years for recovering the said amount runs from the date of advancement. In the instant case the complainant has advanced money on several occasions in various years and the last one being somewhere in 2016 .i.e. the amount was recoverable legally till somewhere of 2019, however the date on the cheque in question is 08.02.2021, which is beyond the period of limitation.
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25. It is noteworthy that section 19 of the Limitation Act deals with the extension of limitation in cases where an payment on account of debt or of interest on legacy has been done by the debtor during the period of limitation, in such a case a fresh period of limitation would start running from the date of the payment. Notably, the accused in his plea of defence as well as by way of suggestion in the cross examination of the complainant has admitted that he has been paying the complainant interest till covid lockdown and has paid an interest of Rs. 100000 till that time.
26. Thus, the accused by himself admitting that he has been making regular payments till Covid lockdown which was apparently in March of 2020 has himself extended the period of limitation as covered u/s19 of the Limitation Act and thus the period of limitation for recovering the debt of the complainant automatically by virtue of Section 19 stands extended to March of 2023. However, the cheque in the instant case is drawn on 08.02.2021 and is very well within the limitation period.
27. Ergo, it can be concluded that the debt of the complainant is not barred by limitation and in view of the discussion and authorities cited above the same is a legally recoverable debt and not beyond the ambit of Section 138.
28. Now that it has been determined that the debt of the complainant is not barred by limitation the point for determination that arises is whether the accused has been able to rebut the presumptions raised under the NI Act. It has been held by a three-judge bench of the Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption contemplated under Section 139 CC No.859/2021 Sandeep Kumar Vs. Deepak Kumar Page no 14 of25 (Anmol Nohria) MM (NI Act) (Digital Court) of NI Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence. The principles pertaining to the presumptions and the onus of proof were recently summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 as under:
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarize the principles enumerated by this Court in the following manner:
25.1. Once the execution of cheque is admitted Section 139 of the Act 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 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."
29. In the instant case the defences taken by the accused is:
i. That the cheque in question as a security cheque;
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ii. That he had borrowed only Rs.42500 from the complainant and does not have liability as per the version of the complainant.
I will be discussing both the defences separately.
i) The cheque was issued as a blank security cheque;
30. It has been stated by the accused that the cheque in question was given as a blank security cheque to the complainant for security purposes and the complainant has himself filled the particulars of the same before presenting it.
31. Section 20 of the NI Act talks about inchoate instruments. As per this provision if a person gives a duly signed cheque which is either blank or partly filled then he is deemed to have given implied authority to the holder to fill up the particular in it and complete the cheque, thus making the drawer liable for the payment mentioned in it. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provision of section 138 would be attracted. 20. At this stage, reference may be sought from the decision of Hon'ble Supreme Court in the case of Bir Singh vs. Mukesh Kumar (2019) 4 SCC 197 wherein the Apex Court while upholding the validity of blank signed cheque in a proceeding u/s 138 of the Act has inter-alia held the following:
"If a signed blank cheque is voluntarily presented to a payee,towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the CC No.859/2021 Sandeep Kumar Vs. Deepak Kumar Page no 16 of25 (Anmol Nohria) MM (NI Act) (Digital Court) cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence."
32. With regards to a security cheque, it is a settled of the proposition of law that a cheque issued as a security in pursuit of financial transaction, cannot be considered as a worthless piece of paper. It is given to ensure the fulfillment of an obligation undertaken. If a cheque issued to secure repayment of a loan advanced and if the loan is not repaid on or before the due date, the drawee would be entitled to get the cheque for payment, and if such a cheque is disordered, the consequences contemplated under section 138 NI Act would follow. Reliance is placed upon Sripati Singh v. State of Jharkhand,2021 SCCOnline1002. Further as to the plea of cheque being a security cheque, it was held in ICDS v. Beena Shabir & Anr. (2002)6 SCC 426, that security cheque would also fall within the purview of section 138 NI Act and a person cannot escape is liability unless he proves that the debt or liability for which cheque was issued as security is satisfied otherwise.
33. Ergo, in light of the above discussion, this court is of the considered view that, the ground that the cheque in question is a blank security cheque does not hold water with this court and even in case of blank signed cheques, the statutory presumptions under section 118(a) and 139 would be raised in favour of the complainant. Therefore, in instant case, since, the accused has admitted the execution of impugned cheque, the aforementioned statutory presumptions would be raised in favour of the complainant regarding the fact that the impugned cheque CC No.859/2021 Sandeep Kumar Vs. Deepak Kumar Page no 17 of25 (Anmol Nohria) MM (NI Act) (Digital Court) has been drawn for consideration and issued by the accused in discharge of legally enforceable debt.
ii.) That he had borrowed only Rs. 42,500/- from the complainant and does not have liability as per the version of the complainant.
34. It has been argued by the counsel for the accused that the complainant has not disclosed complete facts in his complaint and his case is full of infirmities and by way of cross examination he has been able to point out the contradictions and infirmities in the case of the complainant.
35. Perusal of the complaint and evidence affidavit Ex. CW1/A shows that the complainant has not mentioned any dates or time line of advancement of money to the accused, but in his cross examination he has deposed that he has advanced amount of Rs42500 in the year 2014, Rs.50000 in the year 2015 and Rs. 150000 and Rs. 105000 in the year 2016 to the accused. This itself is not a material contradiction in the version of the complainant. However, it has also been stated by the complainant that the amount advanced to the accused in the year 2016 was advanced as he himself had taken a loan from the bank; it is pertinent to note here that as per the version of the complainant he was not charging any interest to the accused. This very fact does not inspire the confidence of the court that any prudent man would advance money to a third person without interest after taking a loan from the bank himself.
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36. Also, the amount advanced to the accused after taking the loan from the bank has been advanced in cash, whereas on earlier occasions the money has been advanced through banking channels. It is beyond the comprehension of a prudent person that a salaried person who has taken loan for himself in white would chose to advance the same to someone else without interest and that too in cash after withdrawing from the bank when he himself had advanced money through banking channels earlier. No explanation has been put forward by the complainant qua this fact in his testimony as to why he chose to do the same, as such a serious doubt is cast upon the version put forward by the complainant.
37. Further, the complainant in his cross examination has admitted that the apart from the last transaction the money was advanced to the accused in the presence of his wife, but the complainant has chosen not examine his wife as a witness, for the reasons best known to him, even after coming aware of the fact that a doubt is being cast upon the advancements alleged to be made by him. Thus, another dent is cast upon the version put forward by the complainant.
38. The complainant in his complaint has not mentioned any dates and mode of advancement, however, in his cross examination dated 20.02.2023 he has stated that he had given the money in 2014 via cheque, in 2015 some by bank transfer and some by cheque and in 2016 he has given the amount twice in cash. Interestingly, later on the cross examination dated 09.05.2023 he has stated that he has given the money to the accused twice from banking channels i.e. once through online mode and once through cheque; and has given cash to the accused 3-4 times. Both the statements given by the complainant on different dates are contrary CC No.859/2021 Sandeep Kumar Vs. Deepak Kumar Page no 19 of25 (Anmol Nohria) MM (NI Act) (Digital Court) to each other as to how the money was advanced and cast a serious doubt upon the veracity of his testimony and his version.
39. Also, the complainant in his cross examination dated 09.05.2023 has stated that he does not remember the exact amounts of cash advanced but can tell the same after looking at his dairy. But the complainant, for the reasons best known to him, has never produced any such dairy in the court and even after having possession of a dairy which shows the exact transactions has chosen not to incorporate the said facts in the complaint or evidence affidavit Ex. CW1/A.
40. Furthermore, the complainant in his cross examination has admitted that he had requested the accused time and again to return his money and had sent him complete details over whatsapp but he cannot produce the same as he has changed his phone.
41. Interestingly, the complainant has deposed that he had given the money from 2014 to 2016 on multiple occasions and kept on paying the accused even when he did not return the money advanced earlier. Furthermore, the complainant in his cross examination upon court question has answered that the accused had assured him that he will pay in one go so he kept on advancing him money,further the accused had sent him photographs of his sister who was undergoing treatment for burn injuries. However, upon questioning the complainant has stated that he does not have the above mentioned photographs available with him. Notably, complainant himself has admitted to the suggestion that accused was not in financial crisis in 2016.
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42. It is noteworthy, that the complainant in his cross examination, has though denied the cheque in question to be a security cheque and stated that the cheque in question was given to him in the February 2021; however later on in his cross examination dated 09.05.2023, he has stated that he has taken 2 cheques from the accused and he does not remember whether the other cheque is duly filled or blank. This very fact itself does not corroborate the version of the complainant that the accused has not given him a security cheque but a filled cheque in February 2021 to discharge the liability as mentioned in the cheque. It simply does not make sense to one's prudent understanding that a person would issue two cheques in order to discharge one single debt. Hence, the factum that the story of complainant is not true and is a false one cannot be ruled out.
43. At this stage, reference may be drawn to Section 114 of Indian Evidence Act which has conferred this court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Furthermore, illustration (g) of the same states that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
44. Thus, in view of the multiple contradictions and non-production of stated documents, a negative inference can be drawn against the complainant and it becomes highly unbelievable that complainant made multiple advancements CC No.859/2021 Sandeep Kumar Vs. Deepak Kumar Page no 21 of25 (Anmol Nohria) MM (NI Act) (Digital Court) without return of the previous as stated by the complainant, and consequently his version does not inspire the confidence of the court.
45. The Hon'ble Supreme Court in the case of M.S. Narayana Menon @ Mani v. State of Kerala (2006) 6 SCC 39 has observed as under, "32. A Division Bench of this Court in Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal [(1999) 3 SCC 35] albeit in a civil case laid down the law in the following terms:
"Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non- existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non- existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies."
46. The primary burden upon the accused was to punch holes in the version of the complainant in order to rebut the presumptions and the standard of proof required from him was preponderance of probabilities; and the accused has been able to do the same by bringing out the inconsistencies and contradcitions in the CC No.859/2021 Sandeep Kumar Vs. Deepak Kumar Page no 22 of25 (Anmol Nohria) MM (NI Act) (Digital Court) version put forward by the complainant. Reliance is placed upon Basalingappa vs. Mudibasappa(Supra).
47. Since, the accused has discharged his initial burden upon him, the burden of proving that the debt as alleged by the complainant exists has now shifted upon the complainant. The counsel for the complainant in order to buttress the case of the complainant has submitted that the accused in his cross examination and plea of defence has taken varying stands; and the complaint filed by the accused Ex. DW1/X/1 is an afterthought only to create a sham defence. It is further submitted that by way of examination of DW1 nothing substantive has been brought forarwd by the accused; and that the accused in his complaint Ex.DW1/X/1 has himself stated that he owes Rs. 100000 to the complainant. It is further argued that the accused has himself not stepped into the witness box to prove his version and a negative inference may be drawn against him.
48. At this stage reference may be drawn from Section 101 of Indian Evidence Act which clearly states that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. One who asserts a particular fact is in existence, then he has to prove the said fact unless and until the law says that the burden lies anymore else.
CC No.859/2021Sandeep Kumar Vs. Deepak Kumar Page no 23 of25 (Anmol Nohria) MM (NI Act) (Digital Court)
49. The complainant has not lead any additional evidence or pointed out to anything substantial on record to cure the infirmities and contradictions brought forward in his version and has failed to discharge the burden cast upon him and prove the existence of the facts asserted by him.
50. It is a cardinal principle of criminal jurisprudence that "that the prosecution has to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence; and the subtle proposition of criminal law that in order to successfully bring home the guilt of the accused, the prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused"; and in view of the discussion above the case of the complainant does not stand on its own legs, being full of infirmities and contradictions.
51. Ergo, this court is of the considered opinion that the complainant has not been able to prove the transactions with the accused and accused has been able to rebut the presumption of legally enforceable debt to the amount of cheque in question. Thereafter, the onus had shifted back upon the complainant to prove the ingredients of the offence under Section 138 of NI Act against the accused beyond reasonable doubt and the complainant has failed to discharge the said onus and prove beyond reasonable doubt, the factum of a legally enforceable debt upon the accused as contemplated under Section 138 of NI Act. Consequently, it can be said that no legal liability exists in favour of the complainant qua the cheque amount, thus, the second ingredient to the offence under section 138 of NI Act does not stands proved.
CC No.859/2021Sandeep Kumar Vs. Deepak Kumar Page no 24 of25 (Anmol Nohria) MM (NI Act) (Digital Court) CONCLUSION:
52. To recapitulate the above discussion, the accused has been successful in establishing a probable defence on a standard of preponderance of probabilities to rebut the presumption under section 118 and 139 of the NI Act. Cogent evidence is required to be proved beyond reasonable doubt to secure conviction in a criminal trial. The accused has been successful in establishing a probable defence by way of pointing out the material inconsistencies in the case of the complainant and thereby proving that the cheque was not given in discharge of legal debt or liability owed to the complainant. In the result of the analysis of the present case, the accused Deepak Kumar is hereby acquitted of the offence punishable under Section 138, Negotiable Instruments Act, 1881.
53. This judgment contains 25 pages. This judgment has been signed and pronounced by the undersigned in open court.
54. Let a copy of the judgment be uploaded on the official website of District Courts, Karkardooma forthwith.
Announced in the open Court On 23.12.2023 (Anmol Nohria) MM (NI ACT) Digital Court Shahdara/KKD/Delhi 23.12.2023 CC No.859/2021 Sandeep Kumar Vs. Deepak Kumar Page no 25 of25 (Anmol Nohria) MM (NI Act) (Digital Court)