Delhi District Court
Tanseer Ali vs Manoj Kumar Jain on 18 December, 2020
IN THE COURT OF SH. AJAY GUPTA, ADDL.SESSIONS
JUDGE02 (EAST) KARKARDOOMA
COURTS, DELHI
Criminal Appeal No.52/2020
Tanseer Ali
S/o Sh. Shamshad Ali
R/o L251, LBlock,
Gali No.8, Gautam Vihar, Delhi110053
....Appellant
Versus
Manoj Kumar Jain
S/o Sh. R.K. Jain
R/o A56, BlockA,
Jitar Nagar, Parwana Road, Delhi110051
....Respondent
Date of institution 06.03.2020
Arguments heard 28.11.2020
Date of order 18.12.2020
JUDGMENT
1. The present appeal has been filed against the Judgment dated 23.01.2020 and the order on sentence dated 07.02.2020 passed by Sh. Dinesh Kumar, Ld. ACMM, East, Karkardooma Courts, Delhi, in a complaint case bearing CC No.59338/16 titled as Manoj Jain vs Tanseer Ali filed u/s 138 of Negotiable Instruments Act (hereinafter referred as NI Act). Vide the aforesaid Judgment Ld. ACMM has convicted the appellant u/s 138 NI Act and vide order dt 07.02.2020, the appellant has been sentenced to undergo simple imprisonment for 16 months and to pay fine of Rs.8,00,000/ out of which Rs.6,20,000/ is payable to complainant as compensation. In Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 1 of 40 default of payment of fine the appellant is to undergo simple imprisonment of six months. In addition to this, the appellant has been directed to pay cost of Rs.10,000/ u/s 359 Cr.P.C. and in default of payment of the said cost, the convict has been sentenced to undergo simple imprisonment of 20 days.
2. The brief facts of present case are that the respondent/complainant filed a complaint u/s 138 of N.I. Act against the appellant/accused (hereinafter both the parties have been referred as per their title in the complaint) on the basis of the following allegations:
(a) that being a friend, the accused approached the complainant for a loan of Rs.4,00,000/ as accused was in financial crisis and needed money. Accordingly, complainant gave him a loan of Rs.4,00,000/. Accused executed a promissory note and a receipt qua the said loan on 04.03.2013 and accused also provided the photocopy of his Election ICard for confirmation of his I.D. and address.
(b) That in discharge of his liability, the accused issued a cheque bearing No.001201 dated 28.04.2014 of Rs.3,00,000/ drawn on P.N.B. Yamuna Vihar Branch, Delhi.
(c) That the complainant presented the said cheque for encashment with his banker Axis Bank, Branch Parliament Street, New Delhi1 but the aforesaid cheque got dishonoured due to insufficient funds in the bank account of accused and it Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 2 of 40 was returned to the complainant by his banker i.e. Axis Bank, vide return memo advice dt.29.04.14.
(d) That complainant got sent a legal demand notice dt. 13.05.2014 through Speed Post on 19.05.2014 which was duly served upon the accused, however, accused did not pay the amount of dishonoured cheque. Thus, it was prayed that accused may be summoned, tried and punished for the offence u/s 138 of N.I Act.
3. On 22.05.2015, a notice u/s 251 Cr.P.C for commission of the offence u/s 138 N. I. Act was served upon the accused to which he pleaded not guilty and replied as under: Q1. What is your defence?
A. I have borrowed Rs.10,000/ from the complainant and same has been returned by me to him. I have, in fact, arranged that amount for one Aslam. He has returned that amount to one Shakir who used to work for Mr. Manoj Kumar Jain. I had issued the cheque in question in blank to the complainant at his request. I do not have any outstanding liability.
4. In support of his case, complainant examined himself as CW1 and his employee Mr. Shakir as CW2. The complainant brought on record the following documents in his evidence:
a) Pronote Dt 04.03.2013 (Ex. CW1/1)
b) Dishonoured Cheque (Ex.CW1/2)
c) Return memo (Ex.CW1/3)
d) Copy of legal demand notice (Ex.CW1/4)
e) Postal Receipt (Ex.CW1/5)
f) Tracking report (Ex.CW1/6) Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 3 of 40
5. After completion of complainant's evidence, the statement of accused was recorded under section 313 Cr.P.C wherein all incriminating evidence was put to him. Accused denied the claim of the complainant and he raised the defence which reads as under: Ans. I am an auto driver. I was in need of Rs.10,000/. Complainant was having his office in my locality and I came to know that he lend money on interest. I approached him to loan of Rs.10,000/. In return, complainant demanded a blank signed cheque as security. As I was in dire need, I agreed for the same and gave him the present cheque which was blank. At the time of giving loan, he also obtained my signatures on some papers. I signed the same in good faith. The said amount was to be returned on daily basis i.e. Rs.100 per day for a period of four months. I repaid the said amount on daily basis, however, complainant did not return my cheque and on demand, he started giving me excuses. He has misused my cheque and falsely implicated me in this case. Accused wants to lead defence evidence.
6. In his defence, the accused examined himself as DW1. The accused deposed that in the year 2014, complainant had opened an office at 3rd Pusta and he came to know that complainant was in the business of providing loan. In the year 2014, he approached the complainant for a loan and he had taken only sum of Rs.10,000/ from the complainant as loan for a period of four month which was repayable on daily basis @ Rs.100/ per day and at the time of taking loan, complainant had asked him to give a blank signed cheque as security. Accused further deposed that he had already paid the total loan amount to the complainant and after repayment of loan when he requested to return the said cheque, complainant told him that he had misplaced the same and he can take back as Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 4 of 40 and when the same is found. Thereafter, he came to know that his cheuqe has been misused when he received the summons from the court. He has no legal liability.
7. On completion of the trial, Ld. Trial Court convicted the accused thereby holding that complainant has proved his case beyond reasonable doubt.
8. Now the present appeal has been filed by the appellant/accused mainly on the following grounds:
a) That the Ld. Trial Court failed to consider the fact that respondent (complainant) has failed to mention in his complaint and legal notice the date, month and year when appellant had approached him for grant of loan and when did he grant the loan to the appellant. In this regard the appellant has relied upon the Judgment of Hon'ble Supreme Court titled as John K. Abraham Vs Simon C. Abraham & Ors.
b) That Ld. Trial Court failed to consider that respondent admitted in his cross examination that he had met the appellant firstly, in December 2012 and then in January 2013 through his employee Shakir and respondent granted such a huge loan of Rs.4,00,000/ just after one month of meeting him which is not digestible.
c) That Ld. Trial Court has failed to consider that in his cross examination respondent admitted that he was well aware that appellant is an auto driver but despite that he advanced loan of Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 5 of 40 Rs.4 Lakh without any security. Respondent also admitted that he had obtained signatures of appellant on some documents, thus, it is submitted that respondent manipulated the promissory note as at the time of giving loan of Rs.10,000/, he had obtained signatures of appellant on blank promissory note. The rate of interest is also mentioned on the promissory note which proves that respondent is a money lender and engaged in the money lending business. It is further submitted that a blank cheque was given as security which has been misused by the respondent, thus, Judgment and Order on Sentence passed by Ld. Trial Court are liable to be set aside.
d) That Ld. Trial Court has failed to consider that appellant never received any legal notice from the respondent. In the legal notice the address about the Gali Number has been added by writing the gali number in the notice, thus, it cannot be assumed that complete address of the appellant was written on the notice, therefore the alleged notice was never served upon the appellant. The respondent has not summoned any witness from the postal department to prove the service of the notice which is mandatory for filing a case u/s 138 N.I. Act.
e) That ld. Trial Court failed to consider that respondent has admitted in his cross examination that he has filed 34 more cases in Karkardooma Courts, Delhi where amount is more than Rs. One Lakh and those cases are based on pronote and he is not having any money lending licence and it is stated that Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 6 of 40 Shakir is witness in every case. Ld. Trial Court failed to consider that CW2 admitted in his cross examination that respondent is running money lending work and fetching higher rate of interest from the borrowers and the alleged loan amount is not legally recoverable debt. Since the respondent doesn't have money lending licence, thus, the said loan amount is not a legally recoverable debt. In this regard appellant has relied upon the Judgments reported as 2010 Crl. L.J.1217, Anil Baburao Kataria Vs Purshottam Prabhakar Kawane.
f) That Ld. Trial Court failed to consider that respondent admitted that he has mentioned the loan amount in his ITR but he did not file his ITR which creates suspicion about the genuineness of the present case. Respondent further admitted that he gave loan in the presence of his employees Sachin and Shakir but name of Sachin is not mentioned in the list of witness of pronote.
g) That Ld. Trial Court failed to consider that respondent stated that he had given loan of Rs.4 Lakh and appellant issued cheque of Rs. 3 Lakh, however, respondent did not discuss about rest of the amount of Rs.1 lakh in the legal notice as well as in the complaint. Respondent did not mention that appellant had returned the amount of Rs.1,00,000/.
h) That Ld. Trial Court failed to consider that in his examination in chief CW2 stated that appellant had returned Rs.1 Lakh to the respondent alongwith one cheque of Rs.3 Lakh in his presence Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 7 of 40 while in his cross he denied this fact which shows that that CW2 was under pressure of respondent as respondent is the employer of CW2 thus, CW2 is not trustworthy witness.
i) That Ld. Trial Court has failed to consider that respondent did not file his bank statement on record to show that he was having huge amount of Rs.4 Lakh, thus, he failed to prove that the said amount was a legally recoverable debt being accounted money. In this regard the appellant has relied upon the Judgments reported as Sanjay Mishra Vs Kanishka Kapoor and R. Parimala Bai Vs Bhaskar Narasim Haial.
j) That Ld. Trial Court failed to consider that in his cross examination respondent has deposed that in the year 2013, the appellant had approached him for taking loan of Rs.4 Lakh due to financial crisis and for buying an auto though it is clear from the cross examination of Appellant that he had purchased the auto in the year 2012 and this fact is clear from the R.C. and permit of the auto. Thus, there was no need for the appellant to take loan from the respondent for buying an auto in the year 2013. Moreover, during that time the cost of the auto was around Rs.1,70,000/ to 1,80,000/.
k) That the Judgment and Order on Sentence passed by Ld. Trial Court are defective. The amount of the subject cheque is Rs.3 Lakh and the Ld. M.M. can award only upto the double of cheque amount, however, Ld. M.M. awarded fine of Rs.8 Lakh out of which Rs.6,20,000/ is payable to the respondent.
Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 8 of 40 Besides, that a cost of Rs.10,000/ has also been awarded which is not sustainable in the eyes of law.
l) That in the similar manner the Ld. Trial Court has awarded total the sentence of more than two years imprisonment which is also illegal. It is also submitted that Ld. Trial Court has not discussed the contradiction mentioned in the written arguments and points raised during arguments.
9. On these grounds, it has been prayed that the impugned judgment and order on sentence may be set aside.
10.I have heard the submissions of Ld. counsel for the appellant/ accused and also Ld. counsel for the respondent/complainant. I have also gone through the record of the case as well as case laws cited by the Ld. Counsel for appellant. Ld. Counsel for appellant has relied upon following case laws in support of his contentions:
(i) Sanjay Mishra vs Kanishka Kapoor
(ii)R. Parimala Bai vs Bhaskar Narasim Haial
(iii) Anil Baburao Kataria vs Purshottam Prabhakar Kawane
(iv) R. Vijayan vs Baby and another Criminal A. No.1902 of 2011
(v) Krishna Janardhan Bhat vs Dattatraya G. Hegde, Criminal Appeal No.518 of 2006.
(vi) Anil Kataria vs Purshottam Kawane, Criminal Application no.630 of 2009.
(vii) John K. Abraham vs Simon C. Abraham and Anr., Appeal No.2043 of 2013
(viii) M/s Dalmia Cement (Bharat) Ltd. Vs M/s Galaxy Traders and Agencies Ltd. Decided on 19.01.2001
(ix)Sanjay Mishra vs Kanishka Kapoor @ Nikki and Anr, Criminal Application No.4694 of 2008.
Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 9 of 40
11.It is held by Hon'ble Supreme Court in the case of 2000(2) SCC 745 titled as M/s Kusum Ingots & Alloys Ltd. Vs M/s Pennar Peterson Securities Ltd that to constitute an offence u/s 138 of Negotiable Instruments Act the following requirements are to fulfilled:
a) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;
b) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
c) that cheque is 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 makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days(after amendment 30 days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
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.
12.Now, let us see, if the aforesaid requirements have been fulfilled in the present case. The complainant has claimed that vide pronote date 04.03.2013, he had advanced loan of Rs.4 Lakh to the accused. The accused has denied the claim of the complainant and contended that he had only taken a loan of Rs.10,000/ against Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 10 of 40 which he had signed some blank documents and had also given a blank signed cheque towards security. Accused contended that he had paid back the loan amount yet the complainant did not return his cheque and has misused the same. The defence taken by the accused will be considered in the later part of the order, however, it is clear that admittedly, the accused had given the subject cheque Ex.CW1/2 to the complainant. It is clear from the cheque returning memo Ex.CW1/3, that the complainant had presented the subject cheque for encashment and it got dishonoured due to insufficient funds in the bank account of the accused. Now it is to be seen whether the complainant had served the accused with the requisite legal notice u/s 138 N.I. Act. The accused has denied the service of the legal notice. The accused has disputed the service of the legal notice mainly on the ground that in the legal notice Ex CW1/4, the gali number has been added manually. This court doesn't find any substance in this plea raised by the accused for several reasons.
13.The complainant has contended in his complaint as well as in his evidence that for confirmation of the address, the accused had provided copy of his Election ID Card which was duly signed by him and this fact has not been disputed by the accused. It is clear from the perusal of the ID card that it was issued in the year 2009 and accused had given a copy of this ID card to the complainant in the year 2013. This fact clearly establishes that the correct address of the accused was mentioned on his ID Card and same was the Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 11 of 40 perfect address for communication with the accused else accused must have got the same rectified, immediately, after the same was issued to him. It is clear that in the address mentioned on the ID card, gali number has not been mentioned. Thus, in view of the settled law, the complainant was duty bound to send the legal notice at the address provided by the accused and once the notice is sent at the same very address, this is deemed to be sufficient compliance of the settled law. Thus, even if it is assumed that in the notice gali number has not been mentioned yet it is to be presumed that notice has been duly served as same has been sent at the correct address. In this regard this court is supported with the case law reported as 2007 Cri LJ 3214 titled as C.C. Alavi Hazi Vs Palapetty Muhammed & another.
14.Furthermore, even if the gali number has been manually added in copy of the notice yet it cannot be assumed that the gali number was not mentioned on the notice sent to the accused. There is no legal bar in making necessary addition and correction in the document which is mechanically typed. Even if it is assumed that gali number has not been mentioned in the notice, the only aspect which is to be considered is whether the notice was actually served upon the accused or not. It is clear that accused has disputed the service of the legal notice only on the basis of one single point that gali number has been manually written on the mechanically typed legal notice. There is no substance in this objection as it is clear Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 12 of 40 from the record that besides the postal receipt Ex.CW1/5, the complainant has also filed the proof of delivery (Ex.CW1/6) of legal notice which has been taken from the website of India Post and it is clear from Ex.CW1/6 that the legal notice was delivered at the end of the accused. The accused has simply denied the service of legal notice; however, accused has not assailed the authenticity of this document during the evidence of complainant and thus, this document stood proved and consequently, the service of the legal notice stood established. Thus, it is clear from these discussions that the legal notice was sent at the correct address of the accused and same was duly served upon him. Thus, under these circumstances, the onus was on the accused to rebut the factum of service of legal notice by summoning the relevant witness from the Postal Authorities, however accused did not examine any witness in support of the plea raised by him in regard to the nonreceipt of legal notice. In view of these discussions it is held that factum of service legal notice stood established.
15.It is further clear from the record that accused did not pay the cheque amount neither within 15 days of the service of the legal notice nor thereafter. It has been held by the Hon'ble Apex Court in the case of C.C. Alavi Hazi vs. Palapetti Muhammed and Anr 2007 (6) SCC 555 that in case, accused disputes the service of the statutory notice then he can also make payment of the subject cheque within 15 days of the receipt of the summons of the Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 13 of 40 complaint but in the instant case, the accused has not made the payment even after the service of the summons. Thus, it is clear from the record that all necessary requirements to constitute the offence u/s 138 N.I. Act, have been fulfilled except that whether on the date of presentation of cheque by the complainant, the cheque was against due debt or was without consideration as claimed by the accused. This point will be discussed in the later part of the order and before making further discussions on the factual aspects of the case, it is deemed necessary to firstly discuss the relevant provisions of N.I Act and the legal position which is required to be taken into consideration for appropriate disposal of the complaint U/s 138 of N.I Act.
16.The claim based under the provisions of negotiable instruments act are exception to the general rule of law that burden of proof lies on the prosecution. There are two specific provisions in negotiable instruments acts i.e. section 118 (a) and 139 of NI Act which contemplates that a presumption is attached in regard to each and every negotiable instrument that the same was drawn and issued against due discharge of the liability and thus, whenever any claim is made on the basis of a negotiable instrument, the presumption has to be drawn in favour of the holder of the cheque (drawee) and the law has put the burden to rebut the presumption on the accused that the cheque was not issued by him against discharge of a debt or a liability. In case, the accused is not able to rebut the Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 14 of 40 presumption and fails to prove his defence, the presumption becomes absolute and it has to be assumed that the cheque was issued by the accused in discharge of debt or liability and consequently, accused has to be assumed guilty of the offence. The relevant provisions of section 118 (a) and section 139 of NI Act reads as under: Sec 118 Presumptions to negotiable instruments.Until the contrary is proved, the following presumption shall be made:
(a) of consideration 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.
139. Punishment in favour of holder: It shall be presumed, unless the contrary is provided, 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.
17.It has been held by Hon'ble Supreme Court in the case reported as 2001 (6) SCC 16 titled as Hiten P. Dalal v. Bratindranath Banerjee that the presumption mentioned in the section 139 of NI Act, is a presumption of law and not the presumption of fact and thus, this presumption has to be drawn in favour of the drawee and burden to rebut the presumption with the probable defence is on the accused. The relevant para of the aforesaid case law reads as under:
21. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 15 of 40 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" [Section 3 : Evidence Act]. 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.
18.It has been held by the Hon'ble Supreme Court in the case of reported as 2010 (11) SCC 441 titled as Rangappa v. Mohan that presumption of section 139 of N.I. Act also includes the existence of legally enforceable debt. The relevant para of the said judgment reads as under:
14. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability.
19.In Bharat Barrel v. Drum Manufacturing AIR 1999 SC 1008, the Hon'ble Supreme Court held that the accused has to rebut the presumption and mere denial of passing of consideration is no defence.
20.Thus, in view of the law laid down by the Hon'ble Supreme Court in the aforesaid cases, the presumption as contemplated under section 139 N.I. Act has to be drawn in favour of the drawee that the cheque in question was issued in discharge of legally enforceable liability. Thus, in the present case also complainant was not required to prove that the cheque in question was issued Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 16 of 40 by the accused towards the repayment of the amount taken by him and initially, the claim of the complainant was to be assumed to be correct by drawing the presumption of section 139 of N.I. Act and burden to rebut the presumption with his probable defence was on the accused.
21.Thus, the accused was required to establish on record the aforesaid defence taken by him. However, after considering the record and the evidence, it is clear that the defence of the accused is apparently not trustworthy for the following various reasons:
(a)In reply to the notice u/s 251 Cr.P.C. the accused had stated that he had borrowed Rs.10,000/ and the same was returned by him to the complainant, however, in the same breath he took another plea that he had arranged the said amount for one Aslam who returned the borrowed amount to Shakir, the employee of the complainant. The accused has taken a contradictory stand from the very first opportunity given by the Ld. Trial Court to explain the accusation. On one hand he says that he himself had returned the borrowed amount to the complainant and on the other hand he says Aslam had given the said amount to the employee of complainant. As such, the defence of the accused that he had only borrowed Rs.10,000/ is not trustworthy on this point alone. Further, the onus was on the accused to establish the said defence, however, it is clear that accused did not lead any evidence to prove the said fact. No suggestion was given to Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 17 of 40 the complainant that accused had borrowed the said amount for one Aslam who had returned the borrowed amount to the complainant through his employee Shakir. Further, the accused had examined himself as defence witness and in his evidence also he did not depose anything about his aforesaid defence. In his evidence, the complainant has examined his employee Shakir as CW2 to prove the factum of grant of loan of Rs.4 lakh. Thus, accused had got ample opportunity to prove his defence during the cross examination of CW2. It is clear from the record that CW2 was cross examined at length, however, CW2 was not cross examined on this aspect. No suggestion was put to CW2 that the said loan was taken by the accused for Aslam and he had returned the said amount to CW2. It is clear that the accused did not pursue his said defence taken at the state of notice and instead of proving the said defence taken by him at the first instance, he subsequently, changed his defence and stated that he had taken the said amount for the medical treatment of his wife. In case, the accused would have taken loan of Rs.10,000/ for said Aslam, he would have been consistent with his this defence which he had taken at the very initial stage of the case but it is clear that at subsequent stage, he changed his defence substantially, which shows that there is no substance in his defence and he took this defence for the purpose of the defence only.
Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 18 of 40
(b)It is also to be seen whether another defence taken by the accused is also trustworthy or not. The accused has taken another defence that he had borrowed Rs.10,000/ from the complainant for four months and while granting the said loan the complainant had obtained his signatures on some blank documents and besides that complainant had also taken one blank signed cheque towards the security of the said loan. According to the accused, he was to repay the said loan by paying Rs.100/ per day to the complainant and he paid back the entire loan amount in the said manner to the complainant and despite repayment, the complainant did not return his security cheque on the pretext that he has misplaced it and it is contended that complainant has misused his cheque. It is admitted position of fact that the promissory note bears the signatures of the accused and now it is to be seen from the facts and circumstances of the present case whether there is some substance in the plea of the accused that he had signed a blank promissory note in good faith as claimed by him. According to accused, he had taken only Rs.10,000/ but subsequently, complainant has misused the blank promissory note and has mentioned a sum of Rs.4,00,000/ over this document. As per accused, he had approached the complainant for taking the said loan after he came to know that complainant is into the business of granting loan. It is undisputed that before granting the loan, the complainant had verified the particulars of the accused by Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 19 of 40 taking a duly signed copy of voter card of the accused. The complainant had also sought a photo of the accused. It is also claimed by the accused that complainant had also taken a blank signed cheque as security. Thus, it is clear that before granting the loan, the complainant made all efforts to ensure security of the loan amount. All these facts show that complainant and accused might know each other or would have come to know each other through somebody yet they did not have blind faith on each other. In case, they would have had blind faith on each other then probably no documentation would have been done qua the loan transaction. It is clear that when complainant was taking all measures to ensure security of the loan being given to the accused and was getting all the necessary documents signed from the accused, then it cannot be assumed that accused would sign any blank document. Under these circumstances, it can be safely assumed that before signing the promissory note, the accused would have also ensured that the correct amount borrowed by him has been mentioned therein and also that it is completely filled in all regards.
(c) As per accused he had to repay the said loan by paying Rs.100/ per day for four months and he made the repayment in the said manner only. Accused contended that after repayment of loan, he had demanded back his cheque but complainant evaded the same on the pretext he has misplaced the same. Again all these Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 20 of 40 pleas of the accused do not inspire any confidence. As discussed above, it is clear from the facts and circumstances of the case that both the parties did not have blind faith on each other and therefore, it cannot be assumed that accused would repay the loan amount without seeking proper receipt of the same. Under these circumstances, the accused would surely take acknowledgement of the all the payments made by him towards repayment of loan. As per accused after repayment, he had sought return of the cheque, however, accused remained completely silent about the promissory note. In case, the accused would have repaid the loan amount, he must have ensured that the promissory note is also returned to him or shredded, however, accused did not say anything about the same as to what did he do about the promissory note. This fact itself is sufficient to establish that accused has taken a flimsy ground in this regard. As per accused, he had repaid the amount and after said payment, the complainant was holding the cheque without consideration and according to him, he was informed by the complainant that he has misplaced the cheque. Thus, admittedly a blank signed cheque had got misplaced and in case, if the same would have the actual scenario, the accused would have immediately informed his banker about the same and issued necessary directions regarding his cheque but accused did not do the needful. It is clear from the facts and circumstances discussed above that from the time of taking loan Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 21 of 40 till the time of alleged repayment, the accused has not conducted himself as any other person would conduct himself under these circumstances and this particular fact itself is sufficient to disbelieve the version of the accused put forth by him in regard to the loan amount as well as repayment.
(d)According to the accused, he had sought return of his cheque but complainant did not return and told that same has been misplaced. Thus, according to the accused he had paid back the amount borrowed by him and therefore, subject cheque was lying with the complainant without consideration. Thus, in case, the defence is believed then complainant had no right even to retain the cheque but instead of returning the cheque, he deposited the cheque with his banker for encashment which eventually got dishonoured due to insufficient funds in the bank account of the accused. Thus, as per accused the complainant had presented the said cheque without any legal right and had misused the same. It is clear from the record that complainant had present the cheque for encashment much before filing of the complainant, however, after dishonour of the cheque accused did not seek return of his cheque from the complainant nor took any appropriate action against the complainant for his allegedly misusing his blank cheque. In the absence of any relevant material, it is to be presumed that accused kept silent after dishonour of the cheque and this conduct of the accused further Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 22 of 40 strengthens the fact that accused had issued the subject cheque towards the repayment of the remaining loan amount and therefore, despite complainant seeking encashment of the cheque, he remained silent.
(e)As discussed in the preceding paras that prior to filing of the complaint, the complainant had served the accused with the legal notice. It is clear from the record that accused did not reply the legal notice. It is clear from the legal notice that the complainant had demanded the amount of the dishonoured cheque which according to the accused was meant for the security of loan and has been misused by the complainant. According to the accused, the subject cheque was with the complainant without any consideration yet the accused neither rebutted the claim of the complainant made in the legal notice nor sought return of the cheque from the complainant after service of legal notice and kept mum. The inaction the part of the accused speaks for itself that the accused did not send any reply or sought return of his cheque as the complainant had raised a genuine claim in his legal notice.
(f) According to the accused, the complainant had raised a false claim in his legal notice and had misused the cheque which was lying with him without consideration yet the accused did not take any action for the alleged misdeed committed by the complainant till date. It has been held by Hon'ble Delhi High Court in the case Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 23 of 40 reported as 172 (2010) DLT 561 V.S. Yadav Vs. Reena that it is for the accused to rebut the presumption of section 139 of N.I. Act and also that under what circumstances he had issued the cheque to the complainant as issuing a cheque is a serious business. It is also held that if the cheque was not issued in discharge of the debt then accused is supposed to take appropriate action seeking return of his cheque. In case, the accused failed to establish the reason for issuance of cheque and also why he did not seek return of the cheque then it is to be assumed that he failed to rebut the presumption. The relevant portion of the para no.7 of the said case reads as under: '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.
In the instant case also the accused has failed to take any action seeking return of the cheque neither prior to service of legal notice nor after service and he has not taken any action against the complainant till date. Thus, the plea taken by the Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 24 of 40 accused that the subject cheque is without consideration is not reliable.
(g)It has been submitted on behalf of appellant/accused that the complainant admitted in his cross examination that he had mentioned the loan transaction in his Income Tax but complainant has not produced his Income Tax Return in regard to the loan transaction. Thus, from this ground it seems that it has been endeavored to contend that the complainant has not shown this transaction in his Income Tax which raises doubt about the claim of the complainant regard grant of loan. It is well settled law that the complainant can file his complaint for dishonour of cheque even where the complainant has not shown the transaction in the ITR. It has been held in the case reported as 2013(5) AIR Bom.R 294 titled as that Mr. Krishna P. Morajkar Vs Mr. Joe Ferrao that the complaint u/s 138 N.I. Act is maintainable even where the transaction has not been shown in the Income Tax Return. The relevant para of the case is reproduced as under: 'The underlined observations do not disclose as to where can one find a prohibition on recovering amounts not disclosed in income tax returns. With utmost humility, I have to state that I have not come across any provision of Income Tax Act, which makes an amount not shown in the income tax returns unrecoverable. The entire scheme of the Income Tax Act is for ensuring that all amounts are accounted for. If some amounts are not accounted for, the person would be visited with the penalty or at times even prosecution under the Income Tax Act, Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 25 of 40 but it does not mean that the borrower can refuse to pay the amount which he has borrowed simply, because there is some infraction of the provisions of the Income Tax Act. Infraction of provisions of Income Tax Act would be a matter between the revenue and the defaulter and advantage thereof cannot be taken by the borrower. In my humble view, to say that an amount not disclosed in the income tax returns becomes irrecoverable would itself defeat the provisions of section 138 of the Negotiable Instruments Act. Thus, it is held that the present complaint is maintainable.' Thus, in view of the settled law, the claim of the complainant cannot be seen with a suspicion on the ground of non mentioning the loan transaction in the Income Tax.
(h)The accused has raised another plea that complainant has admitted in his cross examination that he has filed 34 more cases on the basis of pronote and he has also admitted that he doesn't have any money lending licence. It is stated that since the complainant doesn't have money lending licence therefore, the loan of the present case is not legally recoverable debt. As per accused, besides taking his signature on some blank documents, the complainant had also taken the subject cheque towards the security of the loan. It is well settled law that the provisions of Punjab Money Lenders Act only applies to Civil Suits and the complaint filed u/s 138 N.I. Act are not barred under Punjab Money Lenders Act. In this regard this court is supported by the Judgment of Hon'ble Delhi High Court reported Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 26 of 40 as 2014(6) AD(Delhi) 733 Kajal Vs Vikas Marwah. The relevant para of this judgment is reproduced as under: In my view, even if the appellant/complainant was engaged in lending money, that would not debar her from filing a complaint under Section 138 of the Negotiable Instruments Act, if a cheque issued to her towards repayment of the loan advanced by her is dishonoured by the bank for want of funds and the drawer of the cheques fails to make payment within the prescribed time, after receipt of legal notice from the lender. Section 3 of the Punjab Registration of Money Lenders' Act, 1938, which applies to Delhi, to the extent it is relevant provides that notwithstanding anything contained in any other enactment for the time being in force, a suit by a money lender for the recovery of a loan shall, after the commencement of the Act, be dismissed unless the money lender at the time of institution of the suit is registered and holds a valid license or holds a certificate from the Commissioner granted under Section 11 of the Act, specifying the loan in respect of which the suit is instituted or if he is not already a registered or licensed money lender, he satisfies the court that he has applied for such registration or license but the application is pending. The aforesaid provision does not debar a money lender from instituting a complaint under Section 138 of the Negotiable Instruments Act, 1881, which is a remedy enforceable before a criminal court, and totally independent of a civil suit. The criminal liability is incurred only in case a cheque is issued in discharge of a debt or other liability, the said cheque is dishonoured for want of funds and the borrower fails to make payment of the amount of the cheque even after receipt of a notice from the lender.
(i) The accused has raised another plea that complainant has not mentioned about the date, month and year of advancing the loan in his complaint/legal notice. This plea is also without any substance as it is clear from the para no.2 of the complaint that complainant has specifically mentioned that against the loan of Rs.4 lakh accused had executed a promissory note on Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 27 of 40 04.03.2013. Thus, complainant has clearly mentioned the relevant date when he had advanced the loan to the accused.
(j) In order to prove the loan transaction complainant examined himself as CW1 and his employee Shakir and attesting witness to the promissory note as CW2. In his evidence, the complainant has reiterated the facts mentioned in the complaint about the loan transaction. CW2 has very well supported the version of the complainant in regard to the loan transaction. It is also clear from the cross examination of complainant and CW2 that in their cross examination also they remained firm on the aspect of the grant of loan and no material contradiction has surfaced in their cross examination to have doubt about the loan transaction. Thus, complainant through his own testimony and testimony of his employee Shakir has proved that complainant had granted loan of Rs.4 Lakh to the accused vide Promissory note Ex.CW1/1. As already discussed that the plea raised by the accused regarding signing of blank Promissory note is not trust worthy. There is one more reason to disbelieve the version of the accused. The accused has only stated that complainant had obtained his signatures on the blank papers, however, he has not discussed one more fact that he had also put his thumb impression on Promissory note. This fact itself shows that the defence taken by the accused about signing of the blank Promissory note is completely after thought and a concocted one Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 28 of 40 else he would have also given reasons for putting his thumb impressions on this document. All these facts clearly show that the complainant had advanced the loan of Rs.4 Lakh to the accused regarding which Promissory note was prepared and it was signed by the accused, besides, putting his thumb impressions, only after ensuring that it contains the correct particulars about the loan. It is contended on behalf of the accused that complainant has deposed that his two employees namely Sachin and Shakir were present while granting loan, however, his another employee has not signed the promissory note. Again there is no substance in this plea as it is not mandatory that promissory should be signed by two witnesses. The promissory note was signed by one of the employees who has very well supported the case.
(k) It is also contended on behalf of accused that as per complainant he had advanced loan of Rs.4 lakh and he also says that accused had issued cheque of Rs.3 lakh. It is stated that complainant has not mentioned in his complaint/notice about the payment of Rs. One Lakh by the accused. It is also stated that in his examination in chief CW2 has stated that accused had given Rs.One Lakh alongwith cheque of Rs.3 Lakh to the complainant in his presence, however, CW2 has denied this fact in his cross examination which fact proves that CW2 has deposed under pressure of complainant being his employee and Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 29 of 40 thus, he is not a trust worthy witness. It is clear from the discussions made in the preceding paras that complainant has proved that he had advanced a loan of Rs.4 Lakh. It is also clear from the record that CW2 stood firm during his cross examination about the grant of loan of Rs.4 Lakh by the complainant to the accused. It is also clear from the record that CW2 was cross examined after a considerable time. Further it is also well settled law that even the entire testimony of a hostile witness cannot be discarded and here is a case where this witness has not supported his version only regarding the part payment and delivery of the cheque, thus, in view of the settled law it cannot be said that CW2 is not a trust worthy witness as he did not support the case on the aspect of part payment. Even if it is assumed that accused did not make part payment of Rs. One Lakh even then the subject cheque can be considered qua the part payment of the loan amount. Furthermore, as per accused the blank cheque was lying in the custody of the complainant and in case, the accused would not have paid Rs. One Lakh, the complainant could have filled the amount of Rs.4 Lakh and claimed the same. If the version of accused is relied regarding giving the subject cheque as security then claiming Rs.3 Lakh by the complainant would prove that complainant has only claimed what was actually due. As far as misusing of the security cheque is concerned it is well settled law that in case, the complainant possess a cheque then he has a right to fill and Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 30 of 40 present the same with his banker, if the claimed amount is due and payable to the complainant. In the instant case also it is clear that complainant has proved that he had advanced loan of Rs.4 Lakh, however, accused has failed to prove the repayment of the same. In this regard, this court is supported by the case law reported as AIR 2019 SC 2446 titled as Bir Singh Vs Mukesh Kumar.
(l) It is further contended that complainant has not placed on record his bank statement to show that he had such a huge amount with him. This plea of the accused is also not tenable. In this regard the accused has taken a contradictory plea as on one hand accused contended that complainant is into the business of money lending and has filed several other cases where the loan amount is more than Rs.One Lakh. Thus, from the admission of the accused it is clear that complainant was financially capable to part with the loan amount given to the accused. Furthermore, It is well settled law that in view the provisions of Sec 118 as well as 139 N.I. Act initially, it has to be presumed that the subject cheque was drawn against due consideration and firstly, onus is always on the accused to rebut the settled legal presumptions with his probable defence, however, it is clear from the discussions already made in the preceding paras that accused has miserably failed to prove his defence. Accused has not brought on record any evidence to support his defence that he Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 31 of 40 had only taken loan of Rs.10,000/ which he returned to the complainant. Thus, the defence of the accused is not supported by any relevant evidence and it is well settled law that simple denial of liability cannot be taken as rebuttal to the settled/statutory presumption. Accused was required to establish on record that the subject cheque had entered in the hands of the complainant as claimed by him. It is well settled law that the presumption u/s 139 NI Act cannot be rebutted by simply making statement and accused has to bring on record the evidence to prove the defence taken by him. In this regard, this court is supported with the case law reported as "Hiten P. Dalal v. Bratindranath Banerjee, (SC) : 2001(5) BCR 820". The relevant para of the judgment reads as under:
21. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the Court but 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" [Section 3 : Evidence Act]. 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'.
22. Judicial statements have differed as to the quantum of rebutting evidence required. In Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay, AIR 1961 Supreme Court 1316, this Court held that the presumption of law under Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 32 of 40 Section 118 of Negotiable Instruments Act could be rebutted, in certain circumstances, by a presumption of fact raised under Section 114 of the Evidence Act. The decision must be limited to the facts of that case. The more authoritative view has been laid down in the subsequent decision of the Constitution Bench in Dhanvantrai Balwantrai Desai v. State of Maharashtra, AIR 1964 Supreme Court 575, where this Court reiterated the principle enunciated in State of Madras v. Vaidyanath Iyer (supra) and clarified that the distinction between the two kinds of presumption lay not only in the mandate to the Court, but also in the nature of the evidence required to rebut the two. In the case of a discretionary presumption the presumption if drawn may be rebutted by an explanation which "might reasonably be true and which is consistent with the innocence" of the accused. On the other hand in the case of a mandatory presumption "the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before if the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted........."
[See also V.D. Jhingan v. State of Uttar Pradesh, AIR 1966 Supreme Court 1762; Sailendranath Bose v. The State of Bihar, AIR 1968 Supreme Court 1292 and Ram Krishna Bedu Rane v. State of Maharashtra, 1973(1) SCC 366.]
23. We will therefore have to consider whether in the case before us, the appellant had supported his defence by any proof sufficient to rebut the presumption drawn against him.
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(m)It is well settled law that simple denial of liability cannot be termed to be a valid defence of the accused. In "K.N. Beena v. Maniyappan (SC), Criminal Appeal No. 1066 of 2001", it has also been held by the Hon'ble Supreme Court that the burden is on accused to prove his defence by way of cogent defence evidence and if he fails to prove that the cheque was not issued against debt or liability then presumption u/s 139 NI Act would remain unrebutted. Relevant paras reads as under:
6. In our view the impugned Judgment cannot be sustained at all. The Judgment erroneously proceeds on the basis that the burden of proving consideration for a dishonoured cheque is on the complainant. It appears that the learned Judge had lost sight of Sections 118 and 139 of the Negotiable Instruments Act. Under Section 118, unless the contrary was proved, it is to be presumed that the Negotiable Instrument (including a cheque) had been made or drawn for consideration. Under Section 139 the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. Thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However the burden of proving that a cheque had not been issued for a debt or liability is on the accused. This Court in the case of Hiten P. Dalal v. Bratindranath Banerjee, 2001 (3) RCR (Crl.) 460 SC : 2001(6) SCC 16 has also taken an identical view.
7. In this case admittedly the 1st Respondent has led no evidence except some formal evidence. The High Court appears to have proceeded on the basis that the denials/averments in his reply dated 21st May 1993 were sufficient to shift the burden of proof onto the Appellant/Complainant to prove that the cheque was issued for a debt or liability. This is an entirely erroneous approach. The 1st Respondent had to prove in the trial, by leading cogent evidence, that there was no debt or liability. The 1st Respondent not having led any evidence could not be said to have Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 34 of 40 discharged the burden cast on him. The 1st Respondent not having discharged the burden of proving that the cheque was not issued for a debt or liability, the convection as awarded by the Magistrate was correct. The High Court erroneously set aside that conviction.
(n)It has been held by the Hon'ble Delhi High Court in the case reported as "Sanjay Arora vs. Monika Singh (Cri. Appeal no.98/2017)" that the onus is on the accused to rebut the presumption either by direct evidence or by bringing on record the required material, however, the simple denial of liability is not sufficient to rebut the presumption.
(o)In view of the facts and circumstances of the present case, it is clear that accused failed to rebut the presumptions exist in favour of the complainant, consequently, in view of the settled legal position, it is to be held that the subject cheque was drawn by the accused against due consideration. Furthermore, it is clear from the above detailed discussions that the transaction as claimed by complainant had taken place between the parties, Further, the accused has been completely inactive and dormant throughout and this conduct of the accused also makes everything amply clear that he kept mum for the sole reason as the complaint has raised a genuine claim. As far as proving the financial capacity it concerned, It has been held in recent pronouncement of Hon'ble Apex Court reported as SLP (Cri. No.3858/2019) titled Pavan Diliprao Dike vs Vishal Narenderbhai Parmar that heavy burden to prove the financial Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 35 of 40 capability cannot be laid on the complainant in a cheque bounce case. In the case of T. Vasanthakumar Vs Vijaykumari reported as 2015(3) SCC(Cri) 609, also the complainant had failed to prove the source of payment of loan amount of Rs.5 Lakh to the accused. In the case of T. Vasanthakumar, the Hon'ble Apex Court has held that the presumption of Sec 139 N.I. Act can be drawn in the cases where accused has admitted the issuance of cheque as well as his signature on the cheque and in case, he has failed to prove his defence, it is to be held that he has failed to rebut the presumption. In the case of T. Vasanthakumar while making the above said observations, Hon'ble Apex Court has relied upon the Judgment of Rangappa case.
(p)Furthermore, it has been recently held by Hon'ble Supreme court in the case of M. Abbas Haji vs T.N. Channakeshva (2019) 9 SCC 606 that it is for the accused to establish as to how his cheques entered into the hands of the complainant. The same view has been taken by the Hon'ble High Court of Madras in the case reported as 2019(4) AICLR 873 titled as S. Ravi vs Kumarsan, Cr. Appeal No.63/2012. In the present case, the accused has taken a defence that he had handed over subject cheque to the complainant against a loan, however, as discussed above that the accused has not brought on record the requisite evidence in this regard. Thus, it is clear that in the Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 36 of 40 instant case, the accused had made only assertion that he had given the subject cheque as security for the loan, however, he has failed to bring on record the relevant evidence in this regard. It has been held in the case of Binoy Bothra v. Jitendra Singh, Crl.Rev.P. 310 of 2014 that for proving existence of a fact, the relevant evidence is to be led and a particular fact cannot be proved by merely making an assertion about the same. The relevant para of the judgment reads as under:
20. Relying to the decisions of: (i) (2008) 7 SCC 655, Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm and another; (ii)(2001) 6 SCC 16, Hiten P. Dalal v. Bratindranath Banerjee as well as (iii)Bir Singh v. Mukesh Kumar reported in (2019) 106 ACC 923, it has been submitted that unless the accused/petitioner failed to rebut the presumption created under the N.I. Act, the accused cannot succeed to deny such legal presumption under the law. Relevant observation of the decision in Hiten P. Dalal (Supra) is extracted hereinbelow for ready reference:
"23. Judicial statements have differed as to the quantum of rebutting evidence required. In Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay AIR 1961 SC 1316, this Court held that the presumption of law under section 118 of Negotiable Instruments Act could be rebutted, in certain circumstances, by a presumption of fact raised under Section 114 of the Evidence Act. The decision must be limited to the facts of that case. The more authoritative view has been laid down in the subsequent decision of the Constitution Bench in Dhanvantrai Balwantrai Desai v. State of Maharashtra AIR 1964 SC 575, where this Court reiterated the principle enunciated in State of Madras v. Vaidyanath Iyer (Supra) and clarified that the distinction between the two kinds of presumption lay not only in the mandate to the Court, but also in the nature of evidence required to rebut the two. In the case of a discretionary presumption the presumption if drawn may be rebutted by an Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 37 of 40 explanation which "might reasonably be true and which is consistent with the innocence" of the accused. On the other hand in the case of a mandatory presumption "the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted......".
(q)Furthermore, the present case is a fit case where adverse inference should be drawn against the accused. It is clear from the aforesaid discussions that the legal notice was duly served upon the accused, however, it is clear from the record that accused did not reply to the said notice. It is clear from the legal notice that complainant claimed that the accused had issued the subject cheque to return the loan amount and the same got dishonoured. Thus it is clear that after the service of legal notice the accused must have come to know that the complainant would use the subject cheque in the legal proceedings to claim the said amount, however, accused kept mum and did not take any action whatsoever against the complainant for his allegedly misusing the cheques and making a false claim. If the cheque was issued only towards security of loan and at the time of Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 38 of 40 sending legal notice by the complainant, he did not owe any amount and complainant had issued a false notice, the accused must have taken appropriate action against complainant for his alleged misdeeds but he kept silent. In the case reported as 2014 (8) AD (Delhi) 26 and titled as 'Santosh Mittal Vs. Sudha Dayal, the Hon'ble High Court has held that the adverse inference can be drawn against the accused where accused has failed to controvert the allegation by sending a reply to the legal notice. The relevant para of the said case reads as under: '21. Admittedly, no reply to the legal notice was sent by her thereby rebutting the allegations made by the complainant. As far back in the year 1980, in Kaluram v. Sita Ram, 1980 RCR Note 44, it was held by this Court that when serious allegations are made in a notice and defendant failed to send any reply, then the allegations are deemed to have been admitted. Even in Rangappa (supra) relied upon by the learned counsel for the appellant it was observed that failure on the part of the accused to reply to the statutory notice under section 138 of the Act lead to inference that there was merit in complainant's version.'
22.In such circumstances, it is held that accused has failed to prove his defence. Consequently, the presumption of section 139 of N.I. Act remained unrebutted and accordingly it is to be presumed that accused had issued the cheque in question qua the repayment of balance amount of loan i.e.Rs.3,00,000/ as claimed by the complainant. In view of these discussions, it is held that accused has failed to establish his defence. It is most respectfully observed that the case laws cited by the Ld. Counsel for appellant/accused Cr. Appl No. 52/2020 Tanseer Ali vs Manoj Kumar Jain 39 of 40 are not applicable to the peculiar facts and circumstances of the present case.
23.Thus, it is held that the accused has failed to rebut the presumption and complainant by way of his evidence has established that accused had issued the cheque in question for repayment of the balance loan amount.
24.Since, the appellant/accused has failed to repay the cheque amount despite service of legal notice, thus, he is guilty of commission offence u/s 138 N.I Act. In view the aforesaid discussions, this court does not find any infirmity in the order passed by Ld. Trial Court. and holds that the appellant/accused has been rightly convicted u/s 138 N.I Act. Hence, the present appeal is liable to be dismissed and accordingly, the same is dismissed.
Digitally signed by AJAY GUPTA AJAY Date:
GUPTA 2020.12.18
15:35:27
+0530
(Ajay Gupta)
ASJ02/KKD/East/Delhi
Announced in open
court on 18.12.2020
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