Delhi District Court
Raj Kumari vs Pardeep Gupta on 17 September, 2024
IN THE COURT OF MS. SANJANA KASANA
LD. JUDICIAL MAGISTRATE FIRST CLASS (NI ACT),
DIGITAL COURT-09, SOUTH-WEST, DWARKA
COURT, NEW DELHI.
Presided over by :- Ms. Sanjana Kasana, DJS
CC No. NI ACT 3023/2021
Unique case ID No. DLSW02-005914-2021
Ms. Raj Kumari,
W/o Sh. Satish Chander
R/o A-203, Janki Apartment,
Plot NO. 7, Sector-22, Dwarka.
Raj Nagar-II,
New Delhi- 110077 ... Complainant
VERSUS
Sh. Pradeep Gupta,
R/o B-312, B- Block,
Sheesha Godam Road,
Mohan Garden, Uttam Nagar,
New Delhi- 110059 ... Accused
Complainant Case no. 3023/2021
CNR No. DLSW02-005914-2021
Title Raj Kumari Vs. Pradeep Gupta.
Name of Complainant Raj Kumari
Name of Accused Pradeep Gupta
Date of Institution of Complaint 21.01.2021
Date of Final Arguments 13.03.2024
Date of Pronouncement of 17.09.2024
Judgment
Offence Involved Sec 138 NI Act
Plea of the Accused Pleaded not guilty
Final order Conviction
SANJA Digitally
NA signed by
KASAN SANJANA
Page No. 1 of 21 A KASANA
JUDGMENT
1. Present complaint has been filed by complainant alleging an offence under Section 138 of Negotiable Instruments Act (hereinafter referred to as the "NI Act").
2. Facts, in brief, as alleged in the complaint are that accused took a friendly loan of Rs. 3,00,000/- from the complainant as there were friendly relation between the accused and complainant's son. In discharge of his legally enforceable debt, the accused had issued a cheque bearing No. 403851 dated 15.12.2020 for a sum of Rs. 3,00,000/-(Ex. CW-1/A) (hereinafter referred to as the "cheque-in-question") for encashment, which was dishonored with the remarks "88-dormant account" vide return memo dated 16.12.2020 (Ex. CW-1/B). Complainant then sent a legal demand notice dated 22.12.2020 (Ex. CW-1/C) to accused calling upon him to make the payment of cheque amount within the statutory period of 15 days. However, accused did not make the payment of amount in question and hence, present complaint alleging an offence under Section 138 NI Act was instituted by the complainant.
APPEARNCE OF ACCUSED AND FRAMING OF NOTICE
3. This court took cognizance of offence under Section 138 NI Act and accused was summoned vide order dated 25.02.2021. Thereafter, accused entered appearance before this Court on 01.04.2021. Notice as per mandate of Section 251 of Code of Criminal Procedure, 1973 (hereinafter referred to as the "Cr.P.C.") was framed against the accused on 30.11.2021 to which accused pleaded not guilty and claimed trial. In his plea of defense, accused had stated that he had handed over a blank SANJA Digitally NA signed by KASAN SANJANA Page No. 2 of 21 A KASANA cheque to the complainant and he had already made a payment of Rs 1,00,000/- in cash to the complainant.
4. The matter was then listed for complainant's evidence.
COMPLAINANT'S EVIDENCE
5. In proof of his case, the complainant had relied upon the following documents: -
i. Ex. CW1/A : Cheque in question bearing No. 403851 dated 15.12.2020 for a sum of Rs.3,00,000/-
ii. Ex. CW1/B : Return memo dated 16.12.2020 iii. Ex.CW1/C: Legal Demand notice dated 22.12.2020 iv. Ex. CW1/D : Postal Receipt of Legal Demand Notice.
v. Ex. CW1/E : Delivery Report of Legal Demand Notice.
6. Admission-Denial of documents in terms of Section 294 of Cr.P.C. was also recorded wherein accused has not disputed the genuineness of cheque-in-question, i.e., Ex. CW-1/A, the bank return memo, i.e., Ex. CW-1/B, Legal Demand notice Ex. CW- 1/C, Postal receipts Ex. CW-1/D as well as Delivery report Ex. CW-1/E . On 03.03.2022, accused moved an oral application under Section 145 (2) of NI Act which was allowed, and complainant was cross-examined.
7. In his cross-examination, complainant (CW-1), deposed that accused Pradeep gupta was friend of her son namely Siddhant @ Siddharth. She further deposed that she had given Rs. 3,00,000/- to accused Pradeep Gupta and in discharge of legal liability he had given the cheque in question to the complainant. She again deposed that she had given Rs. 3,00,000/-
SANJA Digitally
NA signed by
KASAN SANJANA
KASANA
A
Page No. 3 of 21
to her son Siddhant @ Siddharth who had further given the said amount to accused Pradeep Gupta. She stated that she is not aware whether Rs. 3,00,000/- were given to accused Pradeep Gupta by her son by way of cash or bank transfer. She further deposed that she cannot furnish any receipt of the transaction as considerable time has elapsed since the loan was given to accused and further she had shifter her residence and in that process the receipt must have been lost. She further stated that when the loan was disbursed, she used to reside in Sec 22, Dwarka and it has now been 1.5 years that she had shifted to Aligarh, UP. Complainant denied the suggestion that her son had disbursed a sum of Rs. 1,80,000/- to the accused instead of Rs. 3,00,000/-. She further denied the suggestion that she had nothing to do with the transaction between her son and accused. Complainant deposed that she had given the loan amount to her son and at the time of giving the loan amount to her son she had enquired as to why he is giving the loan to the accused. She further deposed that her informed her that accused was in dire need of money and he had certain liabilities. Complainant further denied the suggestion that her son and accused Pradeep Gupta had dome transactions going on between them regarding match fixing. She further denied the suggestion that accused Pradeep Gupta had paid back any amount to her son or herself. She had agreed to the suggestion that earlier some transactions were going on between her son and accused Pradeep Gupta and accused had earlier paid back certain sum. However, no money was ever paid by the accused qua Rs. 3,00,000/- which was disbursed by her through her son to accused Pradeep Gupta.
SANJAN Digitally
8. Complainant then closed CE 0n 28.04.2022 A signed by SANJANA KASANA KASANA Page No. 4 of 21 STATEMENT OF ACCUSED UNDER SECTION 313 R/W 281 Cr.P.C.
9. Thereafter, all incriminating piece of evidence were put to accused and his statement in terms of Section 313 r/w Section 281 of CrPC was recorded wherein accused stated that she had given one blank signed cheque to Mr. Sidharth singh who is the son of the complainant when he had taken a loan of Rs. 2,00,000/- from him. Out of which he had paid back Rs. 50,000/- to Mr. Sidharth singh himself and rest of Rs.1,50,000/- was given by him to a friend of Mr. Sidharth singh on his instance and assurance that the said amount would be adjusted in the sum of Rs. 2,00,000/- which he had taken from him. However, the same was not done by him and when he asked him to return his security cheque the same was not done by him.
10. Accused opted to lead Defence Evidence.
DEFENCE EVIDENCE
11. Application under Section 315 of Cr.P.C moved by accused was allowed and accused entered the witness box himself. As part of Defence Evidence, accused has only examined himself as DW-1. In support of his defence, accused has deposed that complainant is the mother of his friend Sh. Sidharth Singh, whom he knows since 2008. He wanted to open a mobile phone store and was in need for funds. In 2016, he took a loan of Rs. 1,50,000/- from Sidharth singh which were transferred by him to his bank account. At that time, he had handed over one blank signed cheque as security which is the present cheque in question. He had to repay the loan amount along with interest @ 3% p.a. and thereafter he opened his SANJAN Digitally signed by A SANJANA KASANA KASANA Page No. 5 of 21 mobile phone store. He used to regularly pay back the interest on a monthly basis to Sh. Sidharth Singh till 2018. Thereafter in 2018 Sh. Sidharth Singh suffered from a paralysis attack. In the said period, he had provided some mobile phones to Sh. Sidharth Singh. In 2018 itself, he again took a sum of Rs. 50,000/- from Sh. Sidharth Singh. In 2018, his store got closed and Sh. Sidharth Singh was in need of funds and he asked him to return the loan amount and he had agreed that he need not pay any more interest amount. He further deposed that in order to return the loan amount to Sh. Sidharth Singh, he took Rs. 1,00,000/- from Sh. Pankaj and Sh. Somi also paid Rs. 38,500/- on his behalf to Sh. Sidharth Singh directly. Thereafter he also asked Sh. Sidharth Singh to adjust the balance amount with the value of mobile phones that he had provided to him. Accused further deposed that the same was not done and the blank signed cheque which he had given as security to Sh. Sidharth Singh was being misused. He has no legal liability towards the complainant or Sh. Sidharth Singh. He further stated that when he asked Sh. Sidharth Singh to return his blank signed security cheque, he told him that the same has been misplaced.
12. Accused was thereafter cross examined. In his cross- examination, he deposed that Sh. Sidharth Singh suffered from a paralysis attack in year 2016. He denied the suggestion that the alleged loan was disbursed at the house of the complainant by Sh. Sidharth Singh. He further agreed to the suggestion that Sh. Sidharth Singh was not employed and the witness voluntarily stated that Sh. Sidharth Singh used to earn rental income. He agreed to the suggestion that the said rental income is earned by the family as a whole. The witness denied the suggestion that Sh. SANJAN Digitally A signed by SANJANA KASANA KASANA Page No. 6 of 21 Sidharth Singh had taken funds from his mother who is the complainant in order to disburse the present loan to the accused. He further stated that Sh. Sidharth Singh had transferred the loan amount to his account from his own bank account. He agreed to the suggestion that he has not placed on record any account statement in support of the same but he further stated that he can furnish his account statement if required. He agreed to the suggestion that there is no proof in writing to support that he had paid back the loan amount to Sh. Sidharth Singh. He further deposed that he had paid back the loan amount in presence of Sh. Pankaj and Sh. Somi and some other people who were also present at his store. He denied the suggestion that Sh. Sidharth Singh never visited his store for the purpose of repayment of loan amount as he was paralysed. He further deposed that he can search for the bills of the mobile phones which he had provided to Sh. Sidharth Singh. He stated that he do not remember exactly as to the person in whose name he had issued the said bills, however, it must be wither in my name or in name of Sh. Sidharth Singh. Sh. Sidharth Singh and he used to indulge in transactions related to money since before. He further stated that he had also earlier given financial help to Sh. Sidharth Singh. Sh. Pankaj and Sh. Somi, in whose presence he had paid back the loan amount, are aware about the facts and circumstances of the present case. He had paid back Rs. 1,00,000/- in presence of Sh. Pankaj and Rs. 38,500/- in presence of Sh. Somi and He was also present on both the occasions. He denied the suggestion that he had taken a loan of Rs. 3,00,000/- from complainant which he had not paid back. He further agreed to the suggestion that he had not taken any legal action against the complainant for misuse of SANJAN Digitally signed by A SANJANA KASANA KASANA Page No. 7 of 21 present cheque. He further denied the suggestion that he is deposing falsely.
13. Thereafter, vide separate statement dated 03.05.2023, accused had stated that he does not wish to examine the witnesses mentioned at serial no 2 and 3 in the list of witnesses and he does not want to lead any further DE. Hence, DE was closed, and matter was listed for final arguments.
FINAL ARGUMENTS
14. Ld. Counsel for complainant has reiterated the averments made in the complaint in his arguments and he has further argued that all the statutory requirements for an offence under section 138 of the NI Act are met with in the present complaint and that the complainant has been able to prove his case beyond reasonable doubt. Ld. Counsel for the complainant has further argued that the accused has admitted his signatures on the cheque in question and therefore, a presumption in terms of Section 139 of the NI Act exists in favour of complainant and accused has failed to rebut the presumption. Ld. Counsel for complainant has further argued that the accused took a new defence of taking loan Rs. 2,00,000/- from complainant's son. Ld. Counsel for the complainant has further argued that no other witness has been presented by the accused in his favour though their names have been mentioned in his evidence. He further argued that the accused had stated that complainant's son Sh. Siddharth singh purchased mobile phones from accused but Sh. Siddharth singh is paralysed. Ld. Counsel for complainant further argued that in his notice framed u/s 251 CrPC, in his statement u/s 313 r/w section 281 Crpc, and in his cross examination as DW-1, the SANJAN Digitally signed by A SANJANA KASANA KASANA Page No. 8 of 21 accused had made contradictory statements. He further argued that the accused has not led any evidence in support of repayment of the loan in question, therefore, accused be convicted for an offence under section 138 of the NI Act. Ld. Counsel for complainant has further argued that accused has admitted his signatures on cheque-in-question in his notice framed under section 251 CrPC.
15. Per Contra, the opportunity of the ld. Counsel for accused was closed vide order dated 13.03.2024 despite giving the accused multiple opportunities to submit his arguments.
LEGAL POSITION
16. Before proceeding to decide the case on merits, it is imperative that position of law with respect to an offence under Section 138 of the NI Act is discussed.
17. Section 138 of the NI Act reads as under:
"138. Dishonour of cheque for insufficiency, etc., of funds in the account. -- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall SANJAN Digitally signed by be deemed to have committed an A SANJANA KASANA KASANA Page No. 9 of 21 offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless--
(a) the 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;
(b) the payee or the holder in due course of the cheque, as the case may be, 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 thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and;
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation. -- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."
18 In order to constitute an offence under Section 138 of the SANJA Digitally NI Act the following ingredients must be fulfilled: NA signed by KASAN SANJANA KASANA A Page No. 10 of 21
(i) Cheque must be drawn on an account maintained by drawer for discharge of a legally enforceable debt either in part or whole.
(ii) Cheque must be validly presented for encashment, i.e., must be presented within validity period or within 3 months from date of issuance whichever is earlier.
(iii) Cheque must be returned back unpaid with remarks funds insufficient or exceeds the amount arranged for.
(iv) A legal demand notice in writing must be issued by payee or holder in due course, within 30 days of receipt of information regarding dishonour of cheque, calling upon the drawer to make the payment of amount in question within 15 days of receipt of legal demand notice.
(v) Drawer fails to make the payment of amount in question within 15 days of receipt of legal demand notice.
19. Section 139 of the NI Act is a reverse onus clause which was added to the statute book in order to increase the credibility of cheque/negotiable instruments as a mode of payment. Section 139 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."
20. Nature and scope of presumption under Section 139 of the NI Act has been dealt in a catena of judgments. In Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16, the Hon'ble Supreme Court of India held as under: SANJAN Digitally signed by A SANJANA KASANA KASANA Page No. 11 of 21 "22. Because both Sections 138 and 139 require that the court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras v. A. Vaidyanatha Iyer [AIR 1958 SC 61 : 1958 Cri LJ 232] it is obligatory on the court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused."
(Ibid. at p. 65, para 14.) Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt.
The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non- existence of the presumed fact.
23. 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, SANJAN Digitally signed by A SANJANA KASANA KASANA Page No. 12 of 21 "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."
21. In case Rangappa v. Sri Mohan, (2010) 11 SCC 441, Hon'ble Supreme Court has further held as under:
"27. 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. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a SANJA Digitally NA signed by scenario, the test of proportionality KASAN SANJANA A KASANA Page No. 13 of 21 should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard or proof.
28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, 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. As clarified in the citations, 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."
22. Section 139 thus creates a rebuttable presumption in favour of complainant which casts an onus on accused to rebut the same on basis of preponderance of probabilities. It is not necessary that accused enters the witness box himself for this purpose, however, making of bare averments is not enough and some proof has to be adduced by accused either from the material which is already available on record or by leading cogent evidence in support of his defence. (Reliance has been placed on Basalingappa vs Mudibasappa, (2019) 5 SCC 418). SANJA Digitally signed NA by KASAN SANJANA A KASANA Page No. 14 of 21 ANALYSIS ON MERITS
23. Position of law being as above, it becomes imperative to examine as to whether complainant has been able to establish the basic ingredients for commission of offence under Section 138 of the NI Act and if the complainant succeeds in same, whether accused has been able to rebut the presumption drawn under section 139 of the NI Act or not.
24. In the case at hand, accused has admitted his signatures on the cheque-in-question, therefore, a presumption exists in favour of complainant under Section 139 of the NI Act which includes the presumption that cheque in question was issued in discharge of a legally enforceable debt. [Reliance has been placed on Basalingappa case (supra)]
25. In regard to the other essential ingredients of Section 138 NI Act, it can be seen from record that the cheque in question Ex. CW-1/A was presented within three months from the date of issuance viz 15.12.2020 and the same were dishonoured with remarks "Dormant acc" vide return memo dated 16.12.2020 Ex. CW-1/B. Legal Demand Notice Ex. CW-1/C was issued on 22.12.2020, i.e. within 30 days of dishonour and the said legal demand notice was delivered upon the accused on 26.12.2020 as per the tracking report Ex. CW-1/E which has been placed on record. Thereafter, present complaint was filed within the prescribed period of limitation. Further, accused has admitted his signatures on cheque-in-question in the Notice framed against him under Section 251 Cr.P.C. and therefore, it can be inferred that cheque-in-question was issued from an account maintained by the accused himself. SANJA Digitally NA signed by KASAN SANJANA KASANA A Page No. 15 of 21
26. Also, on perusal of notice framed under section 251 Crpc, in statement of accused under sec 313 r/w section 281 Crpc, the accused is not disputing the issuance of blank signed cheque to the complainant and the disbursal of loan from the complainant though the amount of loan is not admitted to be of Rs. 3,00,000/-.
27. In view of the foregoing discussion, complainant has been able to establish basic ingredients for commission of offence under Section 138 NI Act. The onus in now on accused to rebut this presumption drawn in favour of complainant on basis of preponderance of probabilities.
28. In order to rebut the presumption, accused has raised following issues in his defence:
(28.1) Cheque in question was handed over as a blank signed security cheque: Accused had stated in his examination as DW1 that he had given the cheque in question as a blank signed security cheque to the complainant in the year 2016.
(28.2) Repayment of entire loan amount: Accused had stated in his examination as DW1 that accused has paid back the entire loan amount for which he took Rs. 1,00,000/- from Sh. Pankaj and Sh. Somi also paid Rs. 38,500/- on his behalf to Sh. Sidharth Singh directly. Thereafter he also asked Sh. Sidharth Singh to adjust the balance amount with the value of mobile phones that he had provided to him.
29. The central defence that accused has taken is that present cheque-in-question was handed over as a blank signed security SANJAN Digitally signed by A cheque and that he has made the repayment of the entire loan SANJANA KASANA KASANA Page No. 16 of 21 amount. Law relating to defence of security cheques has been discussed by the Hon'ble Supreme Court of India in the case of Sripati Singh (D) Through His Son Gaurav Singh v. The State of Jharkhand & Anr., [2021] 10 S.C.R. 116, [hereinafter referred to as Sripati Singh (D) Through His Son Gaurav Singh (Supra) case] wherein it has been held as under:
"16. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. 'Security' in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow.
17. When a cheque is issued and is treated as 'security' towards repayment of an amount with a time SANJAN Digitally A signed by SANJANA period being stipulated for KASANA KASANA Page No. 17 of 21 repayment, all that it ensures is that such cheque which is issued as 'security' cannot be presented prior to the loan or the instalment maturing for repayment towards which such cheque is issued as security. Further, the borrower would have the option of repaying the loan amount or such financial liability in any other form and in that manner if the amount of loan due and payable has been discharged within the agreed period, the cheque issued as security cannot thereafter be presented. Therefore, the prior discharge of the loan or there being an altered situation due to which there would be understanding between the parties is a sine qua non to not present the cheque which was issued as security. These are only the defences that would be available to the drawer of the cheque in a proceeding initiated under Section 138 of the N.I. Act...."
30. The position of law which emerges is that merely because a cheque is issued as a security will not absolve an accused from liability for dishonour of cheque under Section 138 of the NI Act and in addition to the cheque being a security cheque, accused would have to prove either of the following in support of his defence:
(i) Prior repayment of the loan amount for which the cheque was given as a security, or
(ii)Altered change of circumstance due to which there is an understanding between parties that the security cheque is not to be presented.
31. In the case at hand, accused has further taken a defence SANJA Digitally NA signed by KASAN SANJANA that he has already repaid the loan amount and the defence that KASANA A Page No. 18 of 21 present cheque in question was handed over as a blank signed security cheque will come to aid of accused only if he is able to establish the defence of repayment which is also the second leg of defence of accused.
32. With respect to repayment of loan amount, in notice framed under section 251 Crpc, the accused stated that he had paid to the complainant a sum of Rs. 1,00,000/-. However, in his statement under sec 313 r/w section 281 Crpc, he had mentioned that out of loan amount of Rs. 2,00,000/- he had paid back Rs. 50,000/- to Mr. Sidharth singh himself and rest of Rs.1,50,000/- was given by him to a friend of Mr. Sidharth singh on his in- stance. But in his examination in chief as DW1 he had stated that in order to return the loan amount to Sh. Sidharth Singh, he took Rs. 1,00,000/- from Sh. Pankaj and Sh. Somi also paid Rs. 38,500/- on his behalf to Sh. Sidharth Singh directly. Thereafter he also asked Sh. Sidharth Singh to adjust the balance amount with the value of mobile phones that he had provided to him. Therefore, the statements made by the accused are contradictory in nature and cannot be relied upon.
33. However, in order to further substantiate his defence of repayment, accused has cross examined the complainant as CW1 dated 28.04.2022 and in his cross examination, the witness CW1 wherein he had clearly stated that no money was ever paid by the accused qua Rs. 3,00,000/- which was disbursed by her through her son to accused Pradeep Gupta.
34. It is pertinent to mention here that accused has not led any other evidence to substantiate his defence of repayment and has not even placed on record any receipt or any document SANJA Digitally NA signed by KASAN SANJANA KASANA A Page No. 19 of 21 whatsoever in support of the same despite making a submission in his cross examination that he can furnish his account state- ment if required and that he can search for the bills of the mobile phones which he had provided to Sh. Sidharth Singh. Accused has not even been consistent in his defence regarding the amount of repayment of loan amount.
35. This court is of the opinion that the accused has not been able to establish his defence regarding repayment of loan amount on basis of preponderance of probabilities. Since, accused has not been able to establish his defence of prior repayment, defence that cheque-in-question was handed over as a blank signed security cheque is not a tenable defence as cheque amount is still due for payment. Hence, this court is of the opinion that accused has not been able to establish his defence on basis of preponderance of probabilities with respect to the amount which is mentioned in cheque-in-question. [Reliance has been placed on Sripati Singh (D) Through His Son Gaurav Singh (Supra) and Rangappa v. Sri Mohan (Supra)] CONCLUSION
36. In view of the foregoing facts, arguments advanced by the complainant, marshalling of evidence as well as established legal position, this court is of the considered opinion that accused has not been able to rebut the presumption under Section 139 of the NI Act and has not been able to establish his defence on basis of preponderance of probabilities and complainant has been able to prove its case beyond reasonable doubt. Therefore, this court is of the considered opinion that the accused Pardeep Gupta S/o Rajesh Gupta is guilty of offence under Section 138 of SANJAN Digitally signed by A SANJANA KASANA KASANA Page No. 20 of 21 Negotiable Instruments Act, 1881 and accordingly, is hereby convicted for offence under Section 138 of Negotiable Instruments Act, 1881.
Announced in open court
SANJAN Digitally
on 17.09.2024 A
signed by
SANJANA
KASANA KASANA
(SANJANA KASANA)
J.M., FC. (NI ACT), DIGITAL COURT-09 SOUTH-WEST DISTRICT, DWARKA COURT NEW DELHI 17.09.2024 Page No. 21 of 21