Delhi District Court
Sheikhar Enterprises vs . J.K. Ahuja on 7 October, 2022
IN THE COURT OF MR. VAIBHAV CHAURASIA
METROPOLITAN MAGISTRATE - 04 : NORTH WEST DISTRICT
ROHINI DISTRICT COURTS : NEW DELHI
Sheikhar Enterprises Vs. J.K. Ahuja
PS Shalimar Bagh
U/s 138 Negotiable Instruments Act
Date of Institution : 19.11.2001
Date of Judgment : 07.10.2022
JUDGMENT
(1) Serial number of the case : 23714/2016
(2) Name of the complainant : M/s Shikhar Enterprises, 10872,
Jhandewalan Road, Nabi Karim,
New Delhi110055.
Through: Rajeev Tandon, Manager
(3) Name of the accused : Mr. J.K. Ahuja,
Proprietor, Sindhi Boot House,
6, Sarojini Nagar Market,
New Delhi110023.
(4) Offence complained of/ proved : U/S 138 Negotiable Instruments Act,
1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : Acquittal
(7) Reserved for judgment on : 07.10.2022
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. In brief, it is the case of the complainant that The complainant firm deals in wholesale distributorship of several branded footwears; accused is a Case No. 23714/2016 Shikhar Enterprises Vs. J.K. Ahuja Page No. 1 of 20 regular shopkeeper of footwear items; that accused has been making huge credit purchase of footwear items and against those credit purchase of footwear items, the accused issue his cheque no. 551349 dated 14.08.2001 for the amount of Rs. 10,000; that same was returned dishonoured vide return memo dated 21.09.2001 with remarks 'payment stopped by the drawer'; that mandatory legal notice was sent to the accused vide registered post dated 08.10.2001 and despite the legal notice the accused did not make the payment of the cheque. Hence, the present complaint was filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter "the Act").
2. The complainant led presummoning evidence by way of affidavit of AR of the complainant (Ex PW1/G) and relied upon documents i.e., : cheque bearing no. 551349 dated 14.08.2001 for the amount of Rs. 10,000/ drawn on State Bank of Bikaner and Jaipur, Safdarjung Enclave, New Delhi (Ex.PW1/A); the bank return memo dated 21.09.2001 (Ex PW1/B); legal notice undated (Ex PW1/C), postal receipt (Ex PW1/D), UPC (Ex.PW1/E) which were duly considered by the Ld Predecessor and the accused was summoned vide order dated 15.05.2002 for offence u/s. 138 NI Act.
3. After the accused entered appearance, accused was admitted to bail and notice was framed against accused on 03.10.2002 by the Ld ASJ wherein the accused stated the defence that the cheque was issued as security to the complainant and he do not admit his liability. It was admitted that cheque was issued by the accused. Thereafter on the same day i.e. Ld. ASJ in view of defence revealed adjourned the matter for the crossexamination of the complainant.
Case No. 23714/2016Shikhar Enterprises Vs. J.K. Ahuja Page No. 2 of 20
4. During the evidence, three witnesses were examined as far as complainant evidence is concerned. The AR of the complainant was duly cross examined by the Counsel for accused in which AR stated that he was working as an Accountant in the the complainant company. Accused used to buy footwear items from the complainant company on credit basis. The accused issued cheque Ex.PW1/A for the purchased made by him from the complainant company. The said cheque was presented in the bank for encashment but was dishonoured as per memo Ex. PW1/B as per remark payment stopped. The dishonour advice was received by me on 25.09.2001. Thereafter legal notice E. PW1/C was sent to the accused through registered post but the same was not accepted by the accused and undelivered envelop along with a card containing legal notice is Ex.PW1/D. The legal notice was sent on 08.10.2001 as per postal receipt is Ex.PW1/E The power of attorney pursue the case is Ex.PW1/F. My complaint is Ex.PW1/G. which is signed by me. and is correct. AR was duly crossexamined wherein he deposed that there was no surety for giving the goods on credit to accused as they were dealing with accused since long. The cheque which was dishonoured was not kept as security amount. He voluntarily stated that it was against the payment of goods. There was no intimation to them by the accused that these cheques should not be presented. On that day he did not have the bills on the basis of which goods were supplied to accused. He voluntarily stated that he can produce the same. The credit is given for 30 to 45 days and bill must have been raised accordingly he do not remember exactly, was no such understanding that soon as the cash is paid against the bills, the cheques should be returned by him. It is incorrect that cheques were kept as security. It is incorrect to suggest that despite receiving the part Payment he had not issued the cheques which were kept by accused as security. It is incorrect to suggest that though he had already received part Payment still he insisted the accused to make the total payment again. The credit Case No. 23714/2016 Shikhar Enterprises Vs. J.K. Ahuja Page No. 3 of 20 purchases were made by accused on different dates. The accused had stopped the payment hence the cheques were presented in the bank on the same day. Whatever payments were made by accused they are made though cheques and beside cheques no other payment was made. He had orally informed the accused that the cheques had been dishonoured. It is correct that he had presented these cheques on one date. The cheques were presented in bank on 20th or 21st since it is an extention counter it takes one day more for clearance. It is incorrect to suggest that he have received the intimation about dishonour of the cheque on 22.09.2001. It is further incorrect that the legal notice was sent beyond 15 days after receipt of the intimation about dishonour of the cheque from the bank. It is further incorrect to suggest that the present complaint has been filed after period of limitation.
5. PW2 Pyare Lal Teller / Clerk Punjab National Bank Pitampura Extension Counter deposed that he has been authorized by the Bank to appear as witness. The authority letter issued by the Manager of my bank in this regard is Ex.PW2/A. The complainant is maintaining current account in their Extension Counter of our Bank. (at this stage Ld. counsel for complainant submits that the witness has not brought the certified copy as per banker's book of evidence so the witness may be directed to bring the same. In view of this witness was directed to bring correct copy as per Banker's book of evidence record on next date. The examination was deferred and was recalled on 03.06.2005 and he deposed that he had brought the certified copy of the ledger pertaining to the dishonour of the cheque in question i.e. mark Ex. PW 2/D. He recognize the seal of his bank endorsed on the reverse of the cheque that has been dishonoured in this case. The dishonour advice as sent by the bankers of the accused and marked as PW 1/B was received by his bank. He deposed that he recognize Case No. 23714/2016 Shikhar Enterprises Vs. J.K. Ahuja Page No. 4 of 20 the stamp of his bank but does not recognize the signature of the person who signed on the certificate issued by his bank. The current account in question of the complainant is opened at the Extension Branch of our bank located at Maharaja Agarsen Model School that comes under the main Branch that is located at Shakur Basti. The dishonour advice received from the defaulters bank are received by their main branch and they send it to the Extension Counter on the same day. He further deposed that he do not know the authenticity of the statement that the cheque in question was returned to M/S Shikhar enterprises on 25.9.2001 as contained in the certificate PW2/C because the certificate has been signed by some other officer and thereafter three officers have changed in between. He was duly crossexamined by the Ld. counsel for the accused and he deposed that he recognize the signatures on the certificate issued by the complainant bank dated 24.9.2002. He joined the bank in 2004 but he recognized the Officer of Bank Sh. Anil Sharma. He has been working since the year 1978 and he was thorough with the procedure the banks. The cheque concerned was presented on 21.09.2001 to the concerned bank/ accused bank and was returned back unpaid on 22.09.2001 as per the ledger statement on record. It is general practice when the cheque is dishonoured it is handed over to the party concerned on the same day since M/S Shikhar Enterprises was the current account holder and regular to the bank. He further deposed that he did not know in this case how they were intimated. If the party is regular to the bank the dishonoured cheque is handed over otherwise it is sent through registered post. In the present case he is not aware how the party was intimated.
6. CW2 Sh. Sudir Kumar, Sr. Manager, Punjab National Bank, deposed that he had brought the relevant record pertaining to the present case. At the time of transaction their bank had the extension counter at Maharaja Case No. 23714/2016 Shikhar Enterprises Vs. J.K. Ahuja Page No. 5 of 20 Agrasen Model School, Pitam pura where the complainant was maintaining the cash credit account. He further deposed that as per records the complainant had deposited 23 cheques on 20.09.2001 out of which the cheque in question was one of them. They lodged all the cheques in clearing on 21.09.2001 but on 22.09.2001 all the cheques were returned unpaid including the cheque in question due to the fact that the party has stopped the payment. The cheques were of State Bank of Bikaner and Jaipur. The original cheques were handed over to the party i.e. Shikhar Enterprises on 25.09.2001. Details of the cheques were provided vide our certificate dated 13.02.2003. The certificate was issued by their branch i.e, authorized official. The copy of said certificate is already Mark PW2/C and the original was being presented on that day in court. (OSR). He was duly cross examined by the Ld. counsel for the accused and he deposed that he has joined this branch on 21.10.2010. He was not working in that branch when the said cheque was presented. He further deposed that he is authorized to represent on behalf of the branch where the cheque was deposited. He is the Branch Manager and he has not brought any authority letter from the branch. During the deposition he was questioned as "Have you brought cheque returning register in which record of a cheque bearing No. 551349 dated. 14.08.2001 amounting to sum of Rs. 10,000/ was returned unpaid with remarks" Payment stopped by the drawer" and he replied as "No, I have not brought cheque returning register for the abovesaid cheque". He voluntarily stated that he has brought the original clearing register wherein they lodged the record of clearing cheques and returning thereof. The duly certified copy of the same was presented Ex. PW2/D and the entry of cheque is encircled at point A. He further deposed that Ex PW2/D does not bear his signature. During the deposition he was questioned as "Is it correct that the cheque bearing No. 551349 dated 14.08.2001 for Rs. 10,000/ was deposited by the complainant on 20.09.2001?" and he replied that "Yes it is Case No. 23714/2016 Shikhar Enterprises Vs. J.K. Ahuja Page No. 6 of 20 correct". During the deposition he was questioned as "Is it correct that the cheque in question was dishonored on 21.09.01 as per the cheque returning memo which is Ex as PW1/B?" and he replied that "Yes it is correct." During the deposition he was questioned as "Is it correct that the complainant collected the dishonored cheque on 22.09.01?" and he replied as "No it is incorrect as per our record". During the deposition he was questioned as "By what way did you informed/handed over the abovesaid dishonored cheque in question and he replied as "As per our record that intimation regarding the dishonor of the cheque may be given on 22.09.01 telephonically or verbally". During the deposition he was questioned as "Is it correct that the said dishonored cheque was returned to the bank on 22.09.2001?" and he replied as "Yes, It is correct". He further deposed that he has no knowledge as to certificate dated 24.09.2002 issued by PNB marked as Mark 2. He cannot deny or confirm the marked document.
7. The statement of accused was thereafter recorded under Sec 313 CrPC on 02.08.2011wherein the entire incriminating evidence was put to the accused and accused reiterated the defence taken already. Accused stated that The complainant used to supply the shoes to him as he was having a shoe shop. At the time of receipt of the shoes, he used to supply the PDC as the security against total amount of invoice. He have paid the amount in cash towards the present cheque in question and later on instructions for stop payment was made to the bank. No legal notice was served upon him. He want to lead evidence in defence. In addition he wish to state that he have come to know about present proceedings only after receiving summons of the court.
8. The accused however chose lead evidence qua defence and examined himself in defence.
Case No. 23714/2016Shikhar Enterprises Vs. J.K. Ahuja Page No. 7 of 20
9. DW1 Sh. J.K. Ahuja S/o Late Sh. Laxman Dass deposed that he tender his evidence by way of affidavit Ex DW1/A with his signatures at pt. A and B. he is filing on record original cash receipt no. 5669 dated 17/08/2001 as Ex.DW1/1 and cross examination is deferred at the request of Ld. counsel for complainant. Thereafter, he was recalled for crossexamination on 18.01.2012 and he deposed that he does not know the name of the person who gave this receipt but he was representative of complainant. He does not remember whether he filled in the receipt and signed the same in my presence or he had already brought the receipt duly filled. When he made the payment against this receipt, he demanded the cheque back and also telephoned the office of complainant but he does not remember to whom he spoke and the cheque was not returned back to him saying that it will be done later on. He further deposed that he had moved application for dropping the proceedings as the same was time barred. He had mentioned about the payment made by him and about the receipt against payment in para no. 12 and 13 of his application filed in the Court. He denied the suggestion that he has not mentioned about the payment of receipt in his application filed in the Court. He voluntarily stated that the direction to bank for stop payment was issued as the payment was made in cash already. During the deposition he was questioned as "Have you got any reason for not producing this receipt for 11 years before this Court?" and he relied that "he had brought receipt on each date when he came to the Court and so there is no reason for not producing the receipt before the Court". He voluntarily stated that he has filed the receipt alongwith my affidavit for evidence. He denied the suggestion that the receipt Ex. DW1/1 is fake and forged document, not issued by the complainant or any representative. The affidavit filed by him was prepared by his counsel. He does not remember at that time as to where his affidavit was attested. He Case No. 23714/2016 Shikhar Enterprises Vs. J.K. Ahuja Page No. 8 of 20 used to regularly purchase footwear material from complainant. When this case was filed, he had not issued any other cheque. He denied the suggestion that he had issued 23 different cheques to complainant in respect of credit purchases made by him at the time of filing of present complaint. He had never approached the bank of complainant to procure some documents and certificates in my favour. During the deposition the he was shown certificate issued by PNB date 24/09/2002 mark 2 and has been asked whether he has filed the said document in the Court and he has replied the question saying that the document mark 2 had been filed by the Banker of complainant in the Court. He denied the suggestion that the above said document mark 2 has been filed in the Court by him after procuring the document fraudulently from complainant's banker through employee of the bank.
10. Thereafter matter was adjourned for rebuttal evidence and proprietor Sh. Anil Mahajan subjected himself for the rebuttal evidence.
11. CW4 Sh. Anil Mahajan S/o Sh. S.D. Mahajan deposed in rebuttal evidence that he was filing his affidavit of evidence and the same is CW4/A bearing his signatures at point A and B. He deposed that he is also filing copy of a letter dated 15.06.2010 issued in his name from office of Deputy Commissioner, Income Tax and the same is Ex.CW4/1 (OSR) and copy of another letter dated 03.06.2008 issued in his name from the office of Assistant Commissioner, Income Tax, New Delhi and the same is Ex.CW4/2 to show that he is the proprietor of complainant firm namely Shikhar Enterprises. He was duly crossexamined by the Ld. counsel for the accused and he deposed that he has been permitted to prosecute the present case in substitution of previous AR namely Sh. Rajeev Tandon only vide order dated 24.03.2015 of this Court. He has also signed the application dated Case No. 23714/2016 Shikhar Enterprises Vs. J.K. Ahuja Page No. 9 of 20 23.05.2012 and the same is Ex.CW4/D1 at point A and B. he has also signed the application dated 10.02.2012 and the same is Ex.CW4/D2 at point A. he has also signed the application dated 18.01.2014 and the same is Ex.CW4/D3 at point A. He denied the suggestion that signature appearing on document already Ex.PW1/F at point A do not belong to him. He voluntarily stated that during the last 20 years his signatures have changed because he had lot of medical issues. First in the year 2004 he had huge infection in the whole body, he was in hospital for more than 15 days. Then in the year 2012, he was again in hospital for chest infection. Then again in the year 2013, he was again in hospital for the same reason. In the year 2014, he had a hip joint transplant. Then again in the year 2014, he had a heart bipass surgery. During the deposition he was questioned as "Did you suffer any infection of the hands?" and he replied as "My whole body was affected". During the deposition he was questioned as "At present, out of your signatures pointed above, which signature do you use for signing cheques?" and he replied as "I use my signature appearing at point A and B in my affidavit filed today in Court which is already ExCW4/A for signing the cheques". He voluntarily stated that he did not deliberately change his signatures. They got changed on there own due to his medical issues. He denied the suggestion that he has never signed any authority letter in favour of Rajeev Tandon, previous AR in this case. He did not file any general power of attorney in favour of said Rajeev Tandon, during the deposition he again said, he do not remember whether he issued any general power of attorney in favour of above Rajeev Tandon or not. During the deposition he again said, he do not understand what is meant by general power of attorney. He has not signed the present complaint which was originally filed in Court. He did not sign Vakalatnama filed by Sh. Ranjeet Gambhir which was originally filed with the complaint. He voluntarily stated that the said Vakalatnama was signed by Rajeev Tandon, my AR. He do not remember Case No. 23714/2016 Shikhar Enterprises Vs. J.K. Ahuja Page No. 10 of 20 whether he has signed any other Vakalatnama in favour of Sh. Ranjeet Gambhir in any other case filed on behalf of Shikhar Enterprises against the accused u/s 138 NI Act. He further deposed that the document already Ex.PW1/F bears the date 19.11.2001. He denied the suggestion that he do not have personal knowledge of the present cheque.
12. Final arguments advanced by Sh. H.S. Dhillon, Ld. Counsel for the accused. Ample opportunity was given to the complainant to lead the arguement. I have carefully considered the submisions alongwith the entire evidence on record. Written arguement was already filed on behalf of the accused.
13. To prove an offence under Section 138 NI Act, it is required to be proved that:
(i) The accused issued a cheque on an account maintained by him/her with a bank for payment of money to another from out of that account;
(ii) That cheque has been issued for the discharge (either in whole or in part) of any debt or other liability;
(iii)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;
(iv) That cheque has been returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) 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 30 days of the receipt of information by him/her from the bank regarding the return of the cheque as unpaid; and Case No. 23714/2016 Shikhar Enterprises Vs. J.K. Ahuja Page No. 11 of 20
(vi) The drawer of such cheque failed 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.
14. In the case at hand, the accused has not disputed that the cheque in question has been issued on an account maintained by accused with a bank and hence the ingredient (i) is deemed to proved as not disputed.
15. In respect of ingredient (iii) and (iv), the complainant has testified that the cheque in question ie ExPW1/A dated 14.08.2001 was returned dishonoured on 21.09.2001. During the crossexamination of complainant, no questions were put to the complainant nor any suggestions were given to the complainant as to the cheque not having been presented to the bank within the period of its validity. Hence the ingredient (iii) ie the factum of the cheque in question having been presented during the period of its validity is deemed to be proved as not disputed.
16. Further, with the factum of dishonour of the cheque in question being not disputed by the accused and rather as having been admitted by accused in statement under Sec 313 CrPC, the ingredient (iv) is also deemed to be admitted as not disputed.
17. In respect of the legal notice, the complainant has testified that upon dishonour of cheque in question, complainant sent notice dated 08.10.2001(as it is sent on 08.10.2001, it can safely be assumed to be for the date no later than the date on which it was posted) (Ex PW1/C) to the accused for return of the cheque amount vide speed post on 08.10.2001 ie within 30 days of dishonour of the cheque. The complainant Case No. 23714/2016 Shikhar Enterprises Vs. J.K. Ahuja Page No. 12 of 20 also relied uponpostal receipt (Ex PW1/D), UPC (Ex.PW1/E). The accused has however denied receipt of the notice of demand.
18. It is pertinent to note that Section 114 of Evidence Act, 1872 is applicable to communications sent by post and it enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the General Clauses Act envisages that when a registered notice is posted, it is presumed to have been served unless rebuttal is given.
19. In the present case, it is not the case of the accused that the address on which the notice was sent is not accused's address, rather accused has given the same address in the court when accused's statement under Section 281 r/w 313 CrPC was being recorded. Hence the notice was sent by the complainant at accused's correct address. For reasons best known to accused, the accused has not led any evidence in rebuttal to disprove the report given by the postal official either.
20. Further, in CC Alavi Haji Vs. Palapetty Muhammed & Anr. (Crl.
Appeal No. 767 of 2007), the Hon'ble Apex Court has held that "Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint u/s. 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court alongwith the copy of the complaint u/s. 138 of the Act, cannot obviously contend that there was no proper service of notice as Case No. 23714/2016 Shikhar Enterprises Vs. J.K. Ahuja Page No. 13 of 20 required u/s. 138, by ignoring statutory presumption to the contrary u/s. 27 of the General Clauses Act and Section 114 of the Evidence Act".
21. Thus, keeping in view that except mere denial of receipt of notice of demand, no evidence in rebuttal has been led by the accused as also keeping in view the dictum of the Hon'ble Apex Court, merely on the account of non service of legal notice (Ex. PW1/C) the present complaint cannot be rejected and the same is presumed to have been duly served upon the accused. The argument by the Ld. Counsel for the accused is not sustaibable that since it was communicated vide 25.09.2001 is not sustainable. On fact, the cheque was dishonoured on 21.09.2001.The notice was to be issued within 30 days of dishonour of cheque.Even assuming any date, the notice is not barred.
22. In respect of ingredient (vi), it is pertinent to note that admittedly the accused has not made any payment to the complainant in respect of the cheque in question till date. Hence even the ingredient (vi) stands proved.
23. As to mainatinablity issue as raised by Ld. Counsel for the accused, in case of A.C. Narayanan v. State of Maharashtra, (2014) 11 SCC 790 : 2013 SCC OnLine SC 839 at page 803 [Full Bench, reference],five point of reference were framed and were duly answered as follows - 21.1. Whether a powerofattorney holder can sign and file a complaint petition on behalf of the complainant?/Whether the eligibility criteria prescribed by Section 142(a) of the NI Act would stand satisfied if the complaint petition itself is filed in the name of the payee or the holder in due course of the cheque?
33.1. Filing of complaint petition under Section 138 of the NI Act through power of attorney is perfectly legal and competent.
Case No. 23714/2016Shikhar Enterprises Vs. J.K. Ahuja Page No. 14 of 20 21.2. Whether a powerofattorney holder can be verified on oath under Section 200 of the Code?
33.2. The powerofattorney holder can depose and verify on oath before the court in order to prove the contents of the complaint. However, the powerofattorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.
21.3. Whether specific averments as to the knowledge of the powerof attorney holder in the impugned transaction must be explicitly asserted in the complaint?
33.3. It is required by the complainant to make specific assertion as to the knowledge of the powerofattorney holder in the said transaction explicitly in the complaint and the powerofattorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case. 21.4. If the powerofattorney holder fails to assert explicitly his knowledge in the complaint then can the powerofattorney holder verify the complaint on oath on such presumption of knowledge?
33.4. In the light of Section 145 of the NI Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the NI Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the NI Act.
21.5. Whether the proceedings contemplated under Section 200 of the Code can be dispensed with in the light of Section 145 of the NI Act which was introduced by an amendment in the year 2002?
33.5. The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in Case No. 23714/2016 Shikhar Enterprises Vs. J.K. Ahuja Page No. 15 of 20 the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person.
24. On the reference as answered above, it is clear that there is no scope that case is not maintainable via AR of the Complainant firm and there is no bar in case the AR has left the job and proprietor himself be subjected to as complainant.
DEBT/LIABILITY
25. It is a well settled position of law that once execution of the negotiable instrument is admitted, the presumption under Section 118(a) NI Act would arise that it is supported by a consideration. However, such presumption is rebuttable and the accused can prove the nonexistence of consideration by raising a probable defence. If the accused is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the accused of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the accused is entitled under law to rely upon all the evidence led in the case including that of the complainant as well. To disprove the presumption, the accused has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist." (Reliance placed on Bharat Barrel Case No. 23714/2016 Shikhar Enterprises Vs. J.K. Ahuja Page No. 16 of 20 & Drum Manufacturing Company v. Amin Chand Pyarelal, (1993) 3 SCC 35).
26. The NI Act also provides under Section 139 that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. Thus, Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. It is a settled position that when an accused has to rebut the presumption under Section 139 , the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. (Reliance placed on Rangappa vs Sri Mohan, (Criminal Appeal no 1020 of 2010 decided by the Hon'ble Supreme Court).
27. In the present case, from the evidence on record, the accused has been able to bring on record certain facts which make the case of the complainant improbable.
28. Firstly, relationship between the parties stands admitted as both were into business relationship and it is on evidences that material was supplied on credit basis. The possibility of cheques given as security in such cases cannot be ruled out.
Case No. 23714/2016Shikhar Enterprises Vs. J.K. Ahuja Page No. 17 of 20
29. Secondly, PW1 in his deposition has Admitted that "he do not bills on the basis of which were supplied to the accused". Despite opportunity, the bills were not produced on record. Even otherwise, during rebuttal evidence also, the bills were not brought on record by the CW4 Sh. Anil Mahajan. It is essential ingredient that prosecution has to prove its case beyond reasonable doubt. It is duty of the complainant to place on record the bills which were raised against the material supplied, as to on how many items, on what date, via through and to whom the material were supplied. The complainant has miserably failed to substantiate this part of debt/liability on the part of accused. It is not prudent of a business who claims his money upon the material supplied to omit to place on record bills against which the cheque has been issued. This is inferred as adversed to the complainant.
30. Thirdly, the accused has placed on record Ex. DW1/1 which is the receipt against material supplied. Nothing has come on record or through cross examination to raise doubt upon Ex. DW1/1. Moreover by bringing forth Ex. DW1/1, the accused has raised doubt upon the case of the complainant by displacing the case on preponderance of probablity. Already complainant has not been able to prove it case beyond reasonable doubt, even taking into the presumption of S. 139 of the Act, as he has omitted to place bills on record and despite opportunity, he has failed to place on record and in view of Ex. DW1/1, benefit of doubt is given to accused.
31. Hence, by bring forth the circumstances as enumerated above, the accused has discharged the initial onus of proof showing that the existence of debt/liability/consideration was improbable/doubtful and hence the onus shifted back to the complainant to prove it as a matter of fact.
Case No. 23714/2016Shikhar Enterprises Vs. J.K. Ahuja Page No. 18 of 20
32. However, the complainant herein has miserably failed to do so. It is a settled law that standard of proof on the part of an accused and that of the prosecution a criminal case is different and while prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities (Reliance placed on Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54).
33. In view of the above discussion and in the totality of the facts and circumstances of this case, the complainant has miserably failed to prove that the cheque in question was issued in discharge of any existing legally enforceable debt or other liability.
34. Hence, with the presumptions arising in favour of the complainant under Sections 118 and 139 of the Act having been rebutted by the accused by preponderance of probabilities, and with the complainant failing to lead clear, cogent and credible evidence to prove that the cheques in question were issued in discharge of any legally enforceable debt or liability, the accused J.K. Ahuja S/o Sh. L. D. Ahuja is held not guilty for the offence punishable under Section 138 of the Negotiable Act and hence, accused stands acquitted.
35. Accused J.K. Ahuja S/o Sh. L.D. Ahuja is directed to furnish bail bond and surety bond in the sum of Rs. 10,000/ under section 437(A) of the Code of Criminal Procedure and is directed to be present before the Ld. Appellate Court as and when notice is served upon the accused.
36. File be consigned to Record Room after due compliance.
Case No. 23714/2016Shikhar Enterprises Vs. J.K. Ahuja Page No. 19 of 20
Announced in the open court Digitally signed by
VAIBHAV VAIBHAV CHAURASIA
on 07.10.2022 CHAURASIA Date: 2022.10.07
17:49:18 +0530
(VAIBHAV CHAURASIA)
Metropolitan Magistrate04/ North West District
Rohini District Court/New Delhi
Certified that this judgment contains 18 pages and each page bears my signature. Digitally signed by VAIBHAV VAIBHAV CHAURASIA CHAURASIA Date: 2022.10.07 17:49:25 +0530 (VAIBHAV CHAURASIA) Metropolitan Magistrate04/ North West District Rohini District Court/New Delhi Case No. 23714/2016 Shikhar Enterprises Vs. J.K. Ahuja Page No. 20 of 20