Delhi District Court
Ravinder Kr Gupta vs Grace Advertising on 2 May, 2024
CC NI ACT/2416/2021 Ravinder Kumar Gupta Vs. Grace Date of Pronouncement 02.05.2024
IN THE COURT OF MS SHRUTI SHARMA-II METROPOLITAN
MAGISTRATE (NI ACT) DIGITAL COURT-01, NORTH WEST,
ROHINI COURTS, NEW DELHI
CC NI ACT/2416/2021
RAVINDER KUMAR GUPTA
PROPRIETOR OF M/S GUPTA PRINTERS
R/O A-238, POCKET-00,
SECTOR-2, ROHINI,
DELHI-110085.
................Complainant
Versus
GRACE ADVERTISING
PROPRIETOR OF BHAGAT LAMBA
R/O FLAT NO. 173, MOON LIGHT APARTMENTS,
POCKET-14, SECTOR-20, ROHINI,
DELHI-110085.
.......................Accused
PS. Mangol Puri
Digitally signed
SHRUTI by SHRUTI
SHARMA
Page no. 1/17 SHARMA Date: 2024.05.02
15:55:47 +0300
CC NI ACT/2416/2021 Ravinder Kumar Gupta Vs. Grace Date of Pronouncement 02.05.2024
DLNW020112402021
Complaint case no CC NI ACT/2416/2021
CNR No. DLNW020112402021
Title Ravinder Kumar Gupta Vs.
Grace Advertising
Name of complainant Sh. Ravinder Kumar Gupta
Name of accused M/S Grace Advertising Through
Proprietor Sh. Bhagat Lamba
Date of institution of complainant 28.06.2021
Date of final arguments 28.02.2024
Date of pronouncement 02.05.2024
Offence complained of Under section 138 NI Act
Offence charged with Under section 138 NI Act
Plea of accused Pleaded not guilty and claimed
trial
Final Order Acquittal
Page no. 2/17 Digitally signed
by SHRUTI
SHRUTI SHARMA
SHARMA Date:
2024.05.02
15:55:51 +0300
CC NI ACT/2416/2021 Ravinder Kumar Gupta Vs. Grace Date of Pronouncement 02.05.2024
JUDGMENT
Vide this Judgement I shall dispose of the present complaint under Section 138 Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act) filed by the complainant against the accused on account of dishonour of cheque bearing no.947331, dated 24.12.2020, for a sum of Rs. 2,00,000/-, drawn on ICICI Bank, Sector 24, Rohini Branch, Delhi 110085 allegedly issued by the accused in favour of the complainant (hereinafter referred to as the cheque in question).
FACTS AS PER COMPLAINT
1.The present complaint has been filed by Sh. Ravinder Kumar Gupta, proprietor of Gupta Printers against M/s Grace Advertising through its proprietor Sh. Bhagat Lamba. Briefly stated, the case of the complainant is that the both the accused and the complainant were known to each other on account of longtime business relationship and on account of the same, in the first week of September, 2019, the accused had approached the complainant for a credit/loan with a promise to repay the loan amount within 3 months of the disbursement. The accused had also promised that he will pay the interest @ 2.5 % per month to the complainant for the loan amount so taken. Acting on that promise, the complainant had lent a sum of Rs. 2,00,000/- to the accused in the month of September/October, 2019 . It is further case of the complainant that this loan of Rs. 2,00,000/- was given to the accused in cash. The accused thereafter failed to make the repayment of the loan and interest amount to the complainant even after the expiry of 3 months as promised. However, on account of continuous follow up by the complainant, the accused in discharge of his legal liability of repaying the aforesaid loan amount handed over a cheque bearing no. 947331 dated 24.12.2020 drawn on ICICI Bank, Rohini Sector-24, Delhi-110085 in the name of the complainant's proprietorship Page no. 3/17 Digitally signed by SHRUTI SHRUTI SHARMA SHARMA Date: 2024.05.02 15:55:55 +0300 CC NI ACT/2416/2021 Ravinder Kumar Gupta Vs. Grace Date of Pronouncement 02.05.2024 firm (Cheque in question). The Cheque in question was presented by the complainant on different occasions on the direction of the accused and finally when the cheque in question was presented by the complainant with his banker, the same returned unpaid with the remarks "Account Blocked" vide returning memo dated 06.04.2021. Thereafter, the complainant sent a legal notice dated 12.04.2021 through speed post to the accused demanding the amount of the cheque in question from him. The said legal notice was duly delivered to the accused on 19.04.2021. However, despite service of the legal demand notice, the accused failed to pay the said amount within the stipulated period of 15 days. Hence, the present complaint under Section 138 of NI Act has been filed.
APPEARANCE OF ACCUSED AND TRIAL
2. The cognizance of the present complaint was taken by Ld. predecessor of this court on 26.11.2021 and the accused was summoned. Upon service of summons, accused entered his appearance for the first time and was admitted to bail on 30.03.2022. Notice under Section 251 Cr. PC was framed upon the accused on 15.07.2022, in reply to which he pleaded not guilty and claimed trial, thus, his plea of defence was recorded.
In response to notice u/s 251, CrPC, the accused had denied the allegations of the complainant. He submitted that he runs an advertising company and he was approached by the complainant for working together. He had also submitted that he used to bring clients and the complainant used to manufacture flex boards. For the purpose of doing business together, the complainant had invested more amount than the accused therefore the present cheque in question was given to the complainant as security. He had also stated that no written agreement could be executed between him and the complainant for working together on account of difference of opinion on the point of sharing of profits. Lastly, he had submitted that the dispute between him and the complainant was already settled and there remains no amount due from Digitally signed SHRUTI by SHRUTI Page no. 4/17 SHARMA SHARMA Date: 2024.05.02 15:56:00 +0300 CC NI ACT/2416/2021 Ravinder Kumar Gupta Vs. Grace Date of Pronouncement 02.05.2024 his side to the complainant. The accused had also admitted his signature on the cheque in question however denied that he had filled particulars on the same. Accused further had denied the receipt of legal demand notice from the complainant.
3. Thereafter, vide the order dated 15.07.2022, Ld. Predecessor of this court observed that the accused should be given the right to cross-examine the complainant as he had denied his liability in toto towards the complainant and qua cheque in question in notice so framed u/s 251 Cr. PC. Accordingly, vide order dated 19.12.2022 after giving due opportunity to the accused to cross examine the complainant witness, the complainant evidence was closed.
4. After closing of complainant evidence, matter was fixed for statement of accused under section 313 Cr. PC and the same was recorded on 15.05.20223 wherein the incriminating evidence were put to the accused wherein the accused again reiterated his previous stand and stated that it was the complainant who had approached him to work together in the year 2017 and it was orally agreed between them to execute a written contact to work together, however on account of dispute a written agreement could not be executed. He further reiterated that the cheque in question was given for the purpose of security and he has no liability qua the cheque in question and the case filed by the complainant against him is false and he has been falsely implicated in the present complaint.
Thereafter, vide order dated 15.05.2023, accused was allowed to lead DE. the accused had opted to examine himself as witness under Section 315 CrPC. The application of the accused to examine himself as defence witness was allowed by the Court on 24.06.2023 and thereafter the accused was examined, cross-examined and discharged as DW-1 on 06.07.2023. As no other defence witnesses were examined by the accused to support his case, the DE was closed on 01.08.2023 and the matter was put up for final arguments. The final arguments were Digitally signed by SHRUTI SHRUTI SHARMA SHARMA Date: 2024.05.02 Page no. 5/17 15:56:03 +0300 CC NI ACT/2416/2021 Ravinder Kumar Gupta Vs. Grace Date of Pronouncement 02.05.2024 heard on both the sides in length on 28.02.2024 and the matter was reserved for judgement on 02.05.2024.
EVIDENCE ON BEHALF OF THE COMPLAINANT
5. To support its case, the complainant has led oral as well as documentary evidences. Firstly, complainant himself had stepped into witness box and had examined himself as CW-1. In his examination in chief, he had adopted his pre-summoning evidence by way of affidavit. Complainant as CW-1 relied on the following documents: -
1. Ex. CW1/X: Evidence by way of Affidavit.
2. Ex.CW1/1: Original Cheque bearing no. 947331
3. Ex.CW1/2: Cheque returning Memo dated 06.04.2021
4. Ex.CW1/3: Legal Demand Notice dated 12.04.2022
5. Ex.CW1/4: Postal Receipts dated 12.04.2022 Thereafter CW1 i.e., the complainant himself was duly cross examined by the Ld. Counsel for the accused and was discharged on 14.09.2022. The complainant also had not opted to bring any other witnesses to support his case. Accordingly, CE of the complainant was closed by recording a separate statement on 19.12.2022.
EVIDENCE ON BEHALF OF THE ACCUSED
6. The accused has examined himself as a witness under Section 315 CrPC as DW-1 however apart from his own examination no oral or documentary evidences were led by the accused. Accordingly, after recording a separate statement DE was closed on 01.08.2023.
Digitally signed by SHRUTISHRUTI SHARMA SHARMA Date:
2024.05.02 Page no. 6/17 15:56:06 +0300 CC NI ACT/2416/2021 Ravinder Kumar Gupta Vs. Grace Date of Pronouncement 02.05.2024 FINAL ARGUMENTS
7. Final arguments have been heard at length on 28.02.2024 from both the sides. Ld. Counsel for complainant had vehemently argued that the accused has failed to rebut the statutory presumptions envisaged under Section 118 read with Section 139 of the NI Act and therefore, he is liable to be convicted for the commission of offence under section 138 of the Negotiable Instruments Act, 1881. Per contra, Ld. Counsel for accused had vehemently argued that the accused has never admitted his liability qua the complainant or qua the cheque in question and submitted that the case of the complainant is false and lacks merit therefore, the accused is not liable under Section 138 NI Act.
DISCUSSION, ANALYSIS AND OBSERVATIONS
8. For the offences under Section 138 of the NI Act, there are following three ingredients as held by the Hon'ble Supreme court of India in Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54: -
I. That there should be a legally enforceable debt; II. That the cheque is drawn up from the account of bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt; and III. That the cheque so issued had been returned due to insufficiency of funds.
9. The proviso appended to Section 138 of the Act provides for compliance of legal requirements before the complaint petition could be acted upon by a Court of Law.
Digitally signed by SHRUTISHRUTI SHARMA SHARMA Date:
2024.05.02 15:56:10 +0300 Page no. 7/17 CC NI ACT/2416/2021 Ravinder Kumar Gupta Vs. Grace Date of Pronouncement 02.05.2024
10. Section 139 of the NI Act reads as under:
"139. Presumption in favour of holder- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
11. It is well-settled law that section 139 of the NI Act merely raises a presumption in favour of the holder of a cheque that the same has been issued for discharge of any debt or other liability. The existence of a legally recoverable debt is not presumed under Section 139 of the Act.
12. The three -Judge Bench of Hon'ble Supreme Court in Rangappa Vs. Sri Mohan, (2010) 11 SCC 441 has held that where the fact of signature on the cheque is acknowledged, a presumption has to be raised that the cheque pertains to a legally enforceable debt or liability, however, this presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence.
13. Coming to the facts of the present case, it is not in dispute that the original cheque in question was drawn on an account maintained by the accused. The signature on the cheque in question are also not disputed as a specific question was put to the accused at the stage of framing of notice under Section 251 CrPC, wherein the accused had stated that the cheque in question bears his signature. The factum of dishonour of the cheques in question for the reason "Account Blocked" can be seen from the returning memo i.e., Ex.CW1/2 issued by the complainant bank.
The accused however had denied the receipt of legal demand notice from the complainant in his notice under Section 251 CrPC. However the complainant has duly submitted the proof of service of the legal demand notice upon the accused by way of tracking Page no. 8/17 Digitally signed SHRUTI by SHRUTI SHARMA SHARMA Date: 2024.05.02 15:56:14 +0300 CC NI ACT/2416/2021 Ravinder Kumar Gupta Vs. Grace Date of Pronouncement 02.05.2024 report of the postal receipt issued by the India post website, which stands duly exhibited as Ex. CW1/4 in evidence. The tracking report clearly shows that the legal demand notice was duly delivered upon the accused on 19.04.2021 at 16.04.58 pm. Furthermore, the complainant stands benefited with the presumption of service of legal demand notice raised by way of Section 27 of the General Clauses Act. No evidences have been led by the accused to support this averment that the legal demand notice from the side of complainant was not delivered to him. Furthermore, it is also not a part of the defence of the accused as well that the legal demand notice was not delivered upon him by the complainant. Therefore, it can be said that the fact of non-payment, as asked for in the statutory notice of demand, within 15 days of its receipt is also not a disputed fact. Therefore, in view of section 139, NI Act and decision of the Hon'ble Supreme Court in Rangappa (supra), the presumption under Section. 139 of the NI Act for legally enforceable debt can be very well raised and the burden now shifts upon the accused to rebut the said presumption by raising probable defence in his favour.
14. It is pertinent to mention here that Section 139 NI Act only raises the presumption on fulfilment of its conditions that the cheque was issued for discharge of in whole or in part any debt or other liability but there is no presumption as to the existence of the legally enforceable debt or liability as such. In Rangappa (supra), it has been held that:
"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."
15.The Hon'ble Apex Court after analysing various judicial pronouncements in Basalingappa v. Mudibasappa, AIR 2019 SC 1983, summarized the principles as follows: -
Digitally signed by SHRUTI SHRUTI SHARMA
Page no. 9/17 SHARMA Date:
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CC NI ACT/2416/2021 Ravinder Kumar Gupta Vs. Grace Date of Pronouncement 02.05.2024
"(i) 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.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or 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.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposes an evidentiary burden and not a persuasive burden.
POINT FOR DETERMINATION
16. Applying the preposition of law as noted above, in facts of the present case, the signature on the cheque having been admitted, a presumption shall be raised under Section 139 NI Act that the cheque weas issued in discharge of debt or liability. The question now to be examined as to whether any probable defence was raised by the accused by way of which the existence of a legally enforceable debt or liability has been made doubtful from the standard of preponderance of probabilities. Therefore, the point of determination shall be limited to existence of legally enforceable debt or liability on the part of the accused exclusively, as the other ingredients of the Section 138 NI Act are not in dispute.
Digitally signed by SHRUTISHRUTI SHARMA SHARMA Date:
2024.05.02 15:56:21 +0300 Page no. 10/17 CC NI ACT/2416/2021 Ravinder Kumar Gupta Vs. Grace Date of Pronouncement 02.05.2024 CONTENTIONS OF THE PARTIES
17. The accused has to prove his case on the basis of 'preponderance of probabilities' and the defence should not only be a 'possible' defence but also be probable in nature, which should lead the court to conclude that the defence for the issuance of the dishonoured cheque is a probable one.
The primary defence taken by the accused in this case is that there is no legally enforceable debt or liability in favour of the complainant as no transaction as stated in the complaint has ever taken place between the accused and the complainant. He has further taken a defence that the cheque in question was issued to the complainant for the security purposes as the complainant had invested more money than the accused for the purpose of doing business together which ultimately could not fructify. Further at the stage of evidence the accused in his defence has also raised questions with regards to the financial capacity of the complainant and has further taken a defence that the complainant did not have the necessary financial capacity or source to advance the alleged loan amount to the him when the transaction in question took place.
18. Per Contra, Ld. Counsel for the complainant has submitted that the accused has not led any evidence in his favour to prove his abovesaid defence. Therefore, as the complainant has a presumption of Section 139 NI Act with him and the burden of proof to rebut the same has not been sufficiently discharged by the accused.
APPRECIATION OF THE EVIDENCE
19. The case of the complainant is mainly that on account of trusted relation of over 5 years with the accused a loan of Rs. 2,00,000/- was given by him to the accused by way of cash. In Digitally signed by Page no. 11/17 SHRUTI SHRUTI SHARMA SHARMA Date: 2024.05.02 15:56:24 +0300 CC NI ACT/2416/2021 Ravinder Kumar Gupta Vs. Grace Date of Pronouncement 02.05.2024 his cross examination CW-1 had stated that the loan amount was given to the accused out of his savings however he does not remember the denomination of the amount which was given as a loan to the accused. Admittedly, no document was executed between the accused and the complainant for the purpose of giving the loan and there were no eye witnesses present at the time when loan was finally handed over. In his evidence the complainant had denied the defence taken by the accused and had stated that the amount was given to the accused as a friendly loan and not as an investment for any business as the accused was known to him since many years. The complainant had clearly denied the fact that there was ever any plan to start a business venture with the accused. CW-1 in his deposition had further submitted that his monthly income from his printing business is of Rs. 50,000/- and apart from him there are four other members in his family and after the deduction of monthly expenses he is able to save around Rs. 30,000/- per month. It was further stated that the amount of loan given to the accused was not mentioned in the ITR filed by the complainant.
20. From the abovesaid it is clear that the accused had raised questions with regards to the financial capacity of the complainant to give loan to the accused however, even after this the complainant has not led any evidence, documentary or oral, in his pre summoning evidence or post summoning evidence to show his financial position to the Court. The law regarding the presumption is very clear that, as soon as the presumption is rebutted by the opposite side, the burden of proof shifts again upon the party in whose favour the presumption originally stood. In the present case, as soon as questions were raised with regards to the financial capacity of the complainant by way of defence of the accused, the burden of proof shifted again upon the complainant to show that he was financially sound enough to grant the alleged loan amount to the accused. Rather in his cross examination CW-1 had stated that "I am a very poor person so I have not extended loan to any other person except accused."
Digitally signedSHRUTI by SHRUTI SHARMA SHARMA Date: 2024.05.02 15:56:29 +0300 Page no. 12/17 CC NI ACT/2416/2021 Ravinder Kumar Gupta Vs. Grace Date of Pronouncement 02.05.2024
21. Hon'ble Supreme Court in the case of Sunitha vs. Sheela Antony, 2020 SCC OnLine Ker 1750 had laid down that:
"The complainant has no obligation, in all cases under Section 138 of the Act, to prove his financial capacity. But, when the case of the complainant is that he lent money to the accused by cash and that the accused issued the cheque in question discharge of the liability, and if the accused challenges the financial capacity of the complainant to advance the money, despite the presumption under Section 139 of the Act, the complainant has the obligation to prove his financial capacity or the source of the money allegedly lent by him to the accused. The complainant has no initial burden to prove his financial capacity or the source of money. The obligation in that regard would arise only when his capacity or capability to advance the money is challenged by the accused."
In APS Forex Services Pvt. Ltd. Vs. Shakti International Fashion Linkers and Ors., (2020) 12 SCC 724 it was laid down by the Hon'ble Supreme Court as follows:
"We are of the view that whenever the accused had questioned the financial capacity of the complainant in support of his probable defence, despite the presumption under Section 139 of the NI Act about the presumption of legally enforceable debt and such presumption is rebuttable, thereafter the onus shifts again on the complainant to prove his financial capacity and at that stage the complainant is required lead the evidence to prove his financial capacity, more particularly when it is a case of giving loan by cash and thereafter issuance of cheque."
Further in Basalingappa vs. Mudibasappa (2019) 5 SCC 418, it was held by the Hon'ble Supreme Court of India that the accused can always show that the complainant had no financial Digitally signed Page no. 13/17 SHRUTI by SHRUTI SHARMA SHARMA Date: 2024.05.02 15:56:38 +0300 CC NI ACT/2416/2021 Ravinder Kumar Gupta Vs. Grace Date of Pronouncement 02.05.2024 capacity to advance the alleged loan and the same shall be a probable defence which the accused can raise.
22. The complainant has not brought on record his ITR statements to show his financial capacity even after the same was challenged by the accused. No document, or eye witness is produced to prove the factum of grant alleged loan to the accused. Furthermore, there is a clear admission on the part of the complainant that he has not shown the loan amount given to the accused in his ITR. Here, it is pertinent to note that Section 269 SS of the Income-Tax Act, 1961 clearly lays down that if a loan is advanced for an amount which is more than Rs. 20,000/-, it has to be by way of writing, duly reflected in the books of account. Even though non-compliance of Section 269 SS of the Income Tax Act does not make the amount of loan per se non recoverable, however still an adverse inference can be drawn against the complainant as to why no mentioning of the loan so advanced was done by him in his Income Tax Returns, especially when monthly interest was charged by him on the loan amount so advanced to the accused. This obviously, clearly creates a doubt regarding the truthfulness of the stand taken by the complainant that he had advanced a loan of Rs. 2,00,000/- to the accused. Moreover, the presumption of law which is to be drawn in favour of the drawee of the cheque, namely, the complainant, that the cheque has been issued to him for the valid discharge of his debt, gets dislodged by a plausible explanation furnished by the accused wherein he states that the cheque in question was given for the purpose of security on account of starting business together. Even though the accused has not led any evidences to support his defence however, it is safe to say that the accused nevertheless has been able to poke holes in the case of the complainant and the complainant has not been able to withstand or justify the gaps that have been pointed out by the accused during the stage of the evidence.
In the case of Kulvinder Singh vs. Kafeel Ahmed, 2013 SCC OnLine Del 32 the Hon'ble High Court of Delhi had clearly laid down that "The basic principle in criminal law is Digitally signed by SHRUTI SHRUTI SHARMA Page no. 14/17 SHARMA Date:
2024.05.02 15:56:43 +0300 CC NI ACT/2416/2021 Ravinder Kumar Gupta Vs. Grace Date of Pronouncement 02.05.2024 that the guilt of the respondent/accused must be proved beyond reasonable doubt and if there is a slightest doubt about the commission of an offence then the benefit has to accrue to him."
In the case of Ashok Baugh vs. Kamal Baugh and Anr, 2015 SCC OnLine Del 12577 Hon'ble High Court of Delhi has held that:
"25. Section 138 of the NI Act provides for speedy remedy in a criminal forum, in relation to dishonour of cheques. Nonetheless, the Supreme Court cautions that the offence under Section 138 of the NI Act is at best a regulatory offence and largely falls in the arena of a civil wrong and therefore the test of proportionality ought to guide the interpretation of the reverse onus clause. An accused may not be expected to discharge an unduly high standard of proof. A reverse onus clause requires the accused to raise a probable defence for creating doubt about the existence of a legally enforceable debt or liability for thwarting the prosecution. The standard of proof for doing so would necessarily be on the basis of "preponderance of probabilities" and not "beyond shadow of any doubt".
26. Keeping the above proposition of law in mind, on an analysis of the facts, the scale of balance tilts in favour of the Respondent (accused). The Respondent appears to have rebutted the presumption under Section 139 of the NI Act of the existence of a legally enforceable debt by establishing that there was no receipt of the loan; such advance was not shown in the ITR return of the petitioner complainant; paying capacity of the complainant being doubtful and the Respondent/accused himself of having advanced loan in the past to the petitioner/complainant and his wife."
23. The phase "Preponderance of probabilities" in the case of Charles R. Cooper v. F.W. Slade (1857-59) was held to mean "more probable and rational view of the case" and this definition Digitally signed by SHRUTI SHRUTI SHARMA Page no. 15/17 SHARMA Date: 2024.05.02 15:56:46 +0300 CC NI ACT/2416/2021 Ravinder Kumar Gupta Vs. Grace Date of Pronouncement 02.05.2024 has stood the test of time, having been quoted with approval several times by Indian Courts, including recently as in 2022 in Ramanand v. State of U.P. 2022 SCC OnLine SC 1396 para
100. Therefore, it is also imperative to understand that in order to pronounce a conviction in a criminal case, the accused "must be" guilty. And for an accused to be guilty, guilt should not be based on mere surmises and conjectures but it should be based on cogent evidences.
24. In the above conspectus, accused has successfully rebutted the presumption under Section 118 r/w. Section 139 NI Act and the complainant has failed to prove its case beyond reasonable doubt qua the accused in respect of the cheque in question. Henceforth, the legally enforceable debt, which is the only ingredient of Section 138 NI Act up for consideration as noted above, not having been sufficiently established, the offence under Section 138 NI Act is not made out and the prosecution fails.
25. In view of the aforesaid accused Grace Advertising through its proprietor Bhagat Lamba is hereby acquitted of the offence under Section 138 NI Act.
26. Vide Order dated 11.03.2024 it had come on record upon the mentioning of the Ld. Counsel for the Complainant that a cost of Rs. 1000/- was imposed upon the accused on 21.11.2023, which was directed to be paid to the complainant for cancellation of NBWs issued against the accused vide order dated 06.11.2023. Repeatedly, it had come on record that accused had not made the payment of the above said cost to the complainant. As the cost was imposed upon the accused for delaying the proceedings of this case, therefore the imposition of the cost shall stand valid despite the acquittal of the accused. The accused by way of this Judgement is directed to make the payment of cost of Rs. 1000/- to the complainant before the Court today, or by way of Account transfer/UPI transfer. The proof of payment shall be submitted before the Court thereafter. Any failure on the part of the accused to make the payment as aforesaid shall Page no. 16/17 Digitally signed by SHRUTI SHRUTI SHARMA SHARMA Date: 2024.05.02 15:56:51 +0300 CC NI ACT/2416/2021 Ravinder Kumar Gupta Vs. Grace Date of Pronouncement 02.05.2024 result in initiation of attachment proceedings against him under the relevant provision of the law.
The application of the accused and complainant filed against each other under Section 340 CrPC has been dealt with separately and vide a separate order both the applications stands disposed off.
Note: This judgement contains 16 signed pages and 26 paragraphs and each page of this judgement has been digitally signed by the undersigned.
Announced in the open court on 02.05.2024.
Digitally signedSHRUTI by SHRUTI SHARMA SHARMA Date: 2024.05.02 15:56:55 +0300 (SHRUTI SHARMA-II) MM (NI Act) Digital Court-01, North West, Rohini Courts, Delhi Page no. 17/17