Delhi District Court
Shriya Shriya Agrawal vs . on 31 March, 2022
IN THE COURT OF MS SHRIYA AGRAWAL, METROPOLITAN
MAGISTRATE (NI ACT) DIGITAL COURT NO-02,
NEW DELHI DISTRICT
PATIALA HOUSE COURTS
In the matter of : -
CC NI Act No. :1012/2020
M/s Savex Technologies Private Limited,
Through its Duly Authorized Representatives
Mr. Pradeep Sharma, Deputy Manager Sales,
Registered Office At 124, Maker Chamber III,
Nariman Point, Mumbai.
Also at: Branch Office : A-1, Gate No. 3,
Kalkaji Industrial Area, Delhi 110 019.
....... Complainant
Vs.
Mr. Sanjeev Mittal
Proprietor of M/s Zee Enterprises
Registered Office/Shop No. 20/23/24/25
Yamunotri Road, Ghaziabad, Uttar Pradesh 201001
Mobile Number/Whatsapp :+91-9810226741
Email: [email protected]
Also at: Sanjeev Mittal
PA-402, Gulmohar Tower, Chiranjeevi Vihar,
Ghaziabad, Uttar Pradesh 201002 ........ Accused
Date of Institution of Complaint :22.12.2020
Offence Complained of : u/s 138 N.I. Act
Plea of Accused : Not Guilty
Decision : Conviction
Date of Decision : 31.03.2022
Digitally signed by
SHRIYA SHRIYA AGRAWAL
AGRAWAL Date: 2022.03.31
16:10:24 +05'30' Page 1 of 17
JUDGEMENT
1 The present complaint has been filed against the Accused, Mr. Sanjeev Mittal, Proprietor of M/s. Zee Enterprises, by the Complainant Company through its Authorized Representative, Mr. Pradeep Sharma, alleging commission of offence punishable U/s. 138 of the Negotiable Instruments Act, 1881 and seeking prosecution for the same.
2. The Complainant is described as a company engaged in the business of IT peripherals distribution. The Accused on the other hand is averred to have made certain purchases of laptops through several invoices (No. NOITI1920108653 dated, 13.2.2020, No. OITI1920108913 dated 20.2.2020, No. NOITI1920109210 dated, 29.2.2020, No. NOITI1920109214 dated 29.2.2020, No. NOITI1920109276 dated, 3.3.2020, No. NOITI1920109448 dated 12.3.2020, No. NOITI1920109475 dated 13.3.2020 for Rs. 4,59,824, Rs. 6,28,744, Rs. 7,74589, Rs. 67,618, Rs. 411400, Rs. 67,618 and Rs. 67,618/- respectively). Towards the dues qua these invoices, the Accused had issued two cheques (hereinafter referred to as 'subject cheques') bearing nos. 000405 and 000406, both dated 21.10.2020 for Rs. 11,53,663/- each. The said cheques were presented by the Complainant with its Banker for encashment, whereupon the same were returned unpaid/dishonoured with remarks 'Payment Stopped by Drawer' vide Return Memos dated 22.10.2020. A legal demand notice dated 03.11.2020 was sent to the Accused through Speed Post which was duly delivered on 06.11.2020, to which a reply dated 20.11.2020 was also received. As the Accused failed to pay up for the said cheques within the statutory period, it is asserted that the Digitally signed SHRIYA by SHRIYA AGRAWAL Page 2 of 17 AGRAWAL Date: 2022.03.31 16:11:19 +05'30' offence punishable U/s. 138 of the Negotiable Instruments Act is made out against the Accused.
3. The complaint case was received by assignment and registered pursuant to Order dated 22.12.2020 passed by Ld. Predecessor, whereby the Complainant was directed to handover the original record to the court in compliance of the SOP issued by the Hon'ble High Court of Delhi regulating functioning of Digital Courts. Through a detailed order dated 20.02.2021, the Accused was summoned, upon finding a prima facie case against him to proceed as per law. The Accused entered appearance on 15.04.2021. The effective proceedings thereafter continued w.e.f. 26.08.2021, on account of restricted functioning due to Covid 19 pandemic in the interregnum. The bail bonds were furnished on 26.08.2021 and the matter thereafter was taken up in the pre-sitting to the National Lok Adalat. The talks however failed and the matter could not be settled. Thereafter, the case was taken up for framing of Notice U/s. 251 Cr.P.C., which was framed formally on 12.11.2021, whereby the plea of the Accused was recorded.
4. The Accused pleaded not guilty to the Notice U/s. 251 Cr. P. C. spelling out his defence to the effect that the cheques had been issued to the Complainant on 09.10.2019, only bearing his signatures. The amount and the other particulars were not filled up by the Accused. In fact there was a third cheque bearing no. 000404, which was also with the Complainant that was duly cleared. However, the two subject cheques were misused by the Complainant. The Complainant on the contrary refused to acknowledge the dues it had towards the Accused as outstanding, which had been verbally intimated to the Company, other than informing about several other Digitally signed by SHRIYA SHRIYA AGRAWAL Page 3 of 17 AGRAWAL Date: 2022.03.31 16:11:36 +05'30' issues in the dealing which required to be redressed. When no response was received, the Accused had written an Email dated 17.03.2020 to the Complainant. The Complainant had been asked to first clear the dues for about Rs. 48 lakhs which was outstanding towards the Accused. The Complainant however pressed for its payments to be cleared instead. The Accused added in the defence plea that credit notes which were issued in the course of dealing were never adjusted. He had issued stop payment instructions to the concerned bank on 18.03.2020 for which he had the necessary proof in his possession.
5. Thereafter, the Accused moved an application U/s. 145 (2) NI Act which was disposed of as allowed vide order dated 03.12.2021. For the purpose of granting a fair and reasonable opportunity to the Accused to cross examine the Complainant witness and also to ensure smooth recording of evidence through virtual mode, the Blueprint/guidelines evolved in compliance of the 'Project Implementation Guidelines of 2020' and 'VC rules of 2021' issued by Hon'ble High Court of Delhi were shared with the parties in advance. An earmarked / designated Video Conferencing Room was identified under the guidance of Ld. Principal District & Sessions Judge, Patiala House Courts, for recording of evidence through virtual mode in strict compliance with the Rules as aforesaid.
6. The Complainant witness viz. Mr. Pradeep Sharma, Authorized Representative of Complainant Company entered the witness box on behalf of the Complainant deposing as CW 1. He tendered in evidence recorded in chief , inter-alia, the affidavit towards pre summoning evidence Ex. CW1/A, Board Resolution Ex. CW1/1, nine invoices (Ex. CW1/2 colly), Cheque numbers 000405 and SHRIYA Digitally signed by SHRIYA AGRAWAL Page 4 of 17 AGRAWAL Date: 2022.03.31 16:11:50 +05'30' 000406 (Ex. CW1/3) and (Ex. CW1/4), two return memos 22.10.2020 (Ex. CW1/5 colly), Legal demand notice dated 3.11.2020 (Ex. CW1/6), reply to legal notice dated 20.11.2020 (Ex. CW1/7), Proof of dispatch and delivery ( Ex. CW1/8 and Ex. CW1/9 colly), Ledger Account Statement (EX. CW1/10) with Certificate under Section 65 B Indian Evidence Act (Ex. CW1/B).
7. In the cross examination by the Ld. Counsel for the Accused, the CW1 was questioned with respect to knowledge about execution of any document at the time of engaging Accused as its Distributor. The goods are deposed to have been supplied to the Accused on the basis of the trust reposed in it, the latter having been a partner of the HP (the vendor). The witness denied the suggestion that these cheques, with the amount and particulars thereupon left in blank, were taken in advance on 9.10.2019, a fact also endorsed on the rear side of the instruments. He proceeded to add that these were 'transaction cheques', issued in lieu of products purchased. He deposed stating that the goods would generally be delivered by the Complainant upon receipt of purchase orders and also upon demands being made telephonically. However, the witness could not respond to the specific question concerning issuance of any purchase orders particularly by the Accused, against which the products were supplied. He stated further that he would receive orders/demands for supply over telephone from the Accused himself. He, however could not remember if any records for the same with respect to the Accused were maintained. He could not recollect the total purchases made by the Accused from the Complainant from the beginning till date. Upon a specific question being put to the witness with respect to the Email dated 17.3.2020 (EX.CW1/D1 colly), which the Accused has Digitally signed by SHRIYA SHRIYA AGRAWAL Page 5 of 17 AGRAWAL Date: 2022.03.31 16:12:01 +05'30' claimed was sent to the Complainant expressing his views and concerns in the dealings, the witness pleaded ignorance. He however acknowledged that the Email ID: [email protected] was in active use by him.
8. He also stated that he was not aware if a credit period of 30 days was given. He denied the suggestion to the effect that during financial year 2018-19 and 2019-20, with respect to purchases made by the Accused from the Complainant and further sale by the Accused, there was a total deficit of Rs. 34,62,069/-. He also denied the suggestion that the Accused had been assured a margin of income of 4 % in the commercial dealings, and since he was denied the same, the Complainant owed a sum of Rs. 30,06,727.49. He could not state if the Accused had incurred the expenses towards maintenance/ repairs in laptops from his own pocket. He denied the suggestion that these subject cheques were already lying with the Complainant and that they were misused since an Email dated 17.3.2020 was already sent to the latter requesting non-presentation of the cheques, of which the witness was not aware.
9. The Complainant did not examine any more witness and the Complainant Evidence was drawn to a close vide order dated 21.12.2021.
10. The Accused was examined u/s. 313 Cr. P. C. and the Statement was recorded on 07.01.2022. The Accused in response to specific questions stated that the subject cheques were given in blank on 9.10.2019 to the Complainant, only bearing his signatures. He also denied the liability for the cheques' amount as on the date of their presentation. He claimed that the fact that he had issued 'stop payment instructions' had been shared with the Complainant, further Digitally signed by Page 6 of 17 SHRIYA SHRIYA AGRAWAL AGRAWAL Date: 2022.03.31 16:12:14 +05'30' adding that the Complainant owed its dues to the Accused instead. He admitted the service of the Legal Demand Notice (Ex. CW1/6) and the reply he sent to the Complainant (EX. CW1/7). He explained that he did not make the payment for the cheques within the statutory period since he did not owe the Complainant any dues. He added saying that the latter instead owed Rs. 48,00,000/- to the Accused. He stated that the subject cheques were issued in October 2019 for dealings/ transactions pertaining to that very year. The payments were made through NEFT from ICICI Bank and thus there were no dues. The credit notes as promised were never issued and he claimed that he had been blackmailed by the Complainant which had in its possession and custody the unused cheques, which were not returned despite the Accused asking for them.
11. Thereafter the Accused had moved an application U/s 315 Cr. P. C. stating that he wanted to depose as the sole witness in defence, which was allowed vide order dated 18.02.2022. Following the same SOP as above-mentioned, matter was taken up for recording of Defence Evidence on 18.02.2022, whereby the Accused stepped into the witness box and deposed as DW 1. The Accused was examined in chief. He stated that the subject cheques which were given on 9.10.2019 to the Complainant, bore only his signatures and the name of the Complainant Company. The same had been given against billing pertaining to the month of October 2019. He stated that the Complainant as a matter of practice has been taking cheques from him against billing which is done monthly. The same are filled up by the Complainant, whereupon the Accused is asked to opt for a particular mode of payment viz. either through NEFT or through encashment of cheques. In the former case, the cheques are rendered SHRIYA Digitally signed by SHRIYA AGRAWAL AGRAWAL Date: 2022.03.31 16:12:26 +05'30' Page 7 of 17 useless. On the basis of trust, since payment was already done, the Accused deposed that there was no further requirement to do anything after that with respect to the cheques. He although clarified that he had intimated the Complainant about his issues and the fact that he had issued stop payment instructions to the Bank through email dated 17.3.2020 (Ex. CW1/D1). When he received a reply to the said Email hinting at the prospect of some litigation at Bombay High Court, he issued the stop payment instructions. In support of his plea of defence, the Accused has relied upon, inter-alia, letter dated 18.3.2020 written to Laxmi Villas Bank (Ex. DW1/1), Emails (Ex. DW1/2 colly) with Certificate under Section 65 B Indian Evidence Act (Ex. DW1/A), WhatsApp correspondence (Ex. DW1/3 colly) with Certificate under Section 65 B Indian Evidence Act (Ex. DW1/A), movement analysis summary of products (Ex. DW1/4) with supporting (Ex. DW1/A), credit notes (Ex. DW1/5), list of service problems (Ex. DW1/8 colly), bank account statements of Zee Enterprises maintained with Laxmi Villas Bank and ICICI Bank (Mark DW1/Y and Mark DW1/Z respectively), later labelled as Ex. DW1/Y and Ex. DW1/Z respectively upon production of Bank Certified Statements on 29.3.2022).
12. In his further examination in chief on 29.03.2022, the Accused further relied upon an additional Certificate under Section 65 B Indian Evidence Act in support of Emails dated 17.03.2020, 03.04.2020 and 18.11.2020 (Ex. DW 1/B) and Bank Certified Account Statements of Laxmi Villas Bank and ICICI Bank (Ex. DW 1/Y and Ex. DW 1/Z respectively). The said witness was cross- examined by Ld. Counsel for the Complainant on the same date. In response to specific questions, Accused/DW 1 stated that operating SHRIYA Digitally signed by SHRIYA AGRAWA AGRAWAL Page 8 of 17 Date: 2022.03.31 L 16:12:39 +05'30' in this field for the past 20-25 years, he was well aware of ups and downs involved. He deposed to have had business dealings roughly to the tune of Rs. 30-35 crores with the Complainant till now, the last transaction relating to the month of March, 2020.
13. The witness was asked upon being confronted with Ex. CW1/ 2 colly, as to whether he had received the goods mentioned in the invoices shown to him. The Accused responded in the affirmative. He denied the suggestion that the subject cheques had been handed over towards the dues for these invoices. When asked to clarify, as towards which transaction were the cheques then issued, the Accused had stated that they had been given as advance payment/security for invoices which would have become due for the months of September and October 2019. The same were issued on 09.10.2019, which endorsement was also reflected on the rear side of the cheques and later on the payment for the invoices for the month of September and October, 2019 were also made through NEFT. The Accused admitted the suggestion put to him during the cross examination to the effect that he had not made any payment for the nine invoices (Ex. CW 1/2 colly) to the Complainant till date. He had also stated that he did not owe the cumulative amount of the invoices to the Complainant, since the dues outstanding towards him from the Complainant were higher. He denied having served the Complainant with any Legal Notice or having filed any complaint/recovery suit against the Complainant with respect to the dues claimed to be outstanding towards him from the Complainant. He explained the omission while stating that he had formally conveyed his issues formally to the Complainant through an Email in March,2020, whereafter on account of the onset of Covid 19 pandemic and continued correspondence between the parties etc. Digitally signed by SHRIYA SHRIYA AGRAWAL Page 9 of 17 AGRAWAL Date: 2022.03.31 16:12:52 +05'30' he decided to defer the legal action. He acknowledged that he had not written any Email to the Complainant mentioning the exact amount due towards him.
14. When he was again asked about the particulars on the cheques, he deposed that he had filled the name of the payee and had signed the cheques with endorsement at the back side. Drawing the attention of the Accused to his application U/s. 315 Cr. P. C. he was asked that since there was a mention of a third cheque, duly encashed by the Complainant, did he also issue stop payment instruction for the said cheque. To this, the witness stated that he had issued such instructions qua the third cheque as well. He further stated that he had furnished the calculations of the dues in his favour to the tune of Rs. 48 lakhs in the courts. He admitted that he had issued six security cheques, though denying the suggestion that he had mentioned about only three cheques in his application U/s. 315 Cr. P. C. The witness admitted that no written assurance was given to him by the Complainant with respect to the credit notes as claimed to have been issued or promised.
15. Final arguments were heard at length. The record has been carefully and thoroughly perused.
16. The Complainant has asserted its case for conviction against the Accused for the offence punishable under Section 138 NI Act essentially on the ground of having proved the cause of action against him, beyond all reasonable doubt and establishing through detailed cross examination of the Accused and final arguments, that the defence plea is discardable as being specious and replete with material contradictions. The thrust to this effect is premised on the substantive proof of presentation of the two cheques admittedly SHRIYA Digitally signed by SHRIYA AGRAWAL Page 10 of 17 AGRAWAL Date: 2022.03.31 16:13:05 +05'30' issued by the Accused in the name of the Complainant, their return as dishonoured from the Payee's Bank upon presentation for encashment and non-payment by the Accused of the legally enforceable dues within the statutorily prescribed period, despite service of the Legal Demand Notice.
17. The primary defence of the Accused is that other than his signatures on the two subject cheques, no other particulars were filled up by him. The said cheques had been issued as security cheques, which have been misused by the Complainant, despite there being no outstanding dues towards the Company. On the contrary, the Company had outstanding liability towards the Accused, which has not been honored till date.
18. As per the settled law, as reiterated in Kusum Ignots & Alloys Ltd. v. Pennar Peterson Securities Ltd. [(2000) 2 SCC 745], for establishing a choate cause of action for prosecution under Section 138 of the Negotiable Instruments Act, 1881, against the Accused, the Complainant ought to prove the ingredients of the provision, as succinctly covered in its observations by Hon'ble Supreme Court of India in the said ruling in the following words :
"(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;
(ii) that cheque has been presented to the bank within a period of six months (now three months) from the date on which it is drawn or within the period of its validity, whichever is earlier;
(iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient SHRIYA Digitally signed by SHRIYA AGRAWAL Page 11 of 17 AGRAWAL Date: 2022.03.31 16:13:19 +05'30' to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days (now 30 days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice."
19. The provision under Section 139 of the Negotiable Instruments Act, 1881, of significant import in the present case, provides for a statutory presumption which reads as under:
Section 139: 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. The Accused has attributed misuse of the two subject cheques by the Complainant, claiming to have only signed the cheques (in his response to Notice under Section 251 Cr.P.C.), though later owning up in his cross examination to have also written the name of the Payee Company. The cheques have been described as though issued merely as security advance cheques and not for any outstanding dues as on the date of their presentation. The Accused has set up what is known as a counter-claim, an expression used in the civil jurisprudence parlance. However, this argument of the Accused is legally misplaced for manifold reasons.
21. Firstly, the legal position in respect of Section 139 NI Act has been amply made clear in a number of pronouncements by the SHRIYA Digitally signed by SHRIYA AGRAWAL Page 12 of 17 AGRAWAL Date: 2022.03.31 16:13:35 +05'30' superior courts. To invoke this reverse onus clause, all that the Complainant needs to prove is that the cheque was issued/ signed by the Accused. The said fact is duly admitted in the present case. Once a signed cheque is handed over to the Complainant, the authority to fill up the remaining particulars and use the cheque also stands transferred to the holder. In this context, the observations of Hon'ble High Court of Delhi in Hon'ble High Court of Delhi in Ramesh Goyal v. State & Anr. [ Crl. A. 12/2017, decided on 31.5.2017] to the effect that 'there is no law that a person drawing the cheque must necessarily fill it up on his own hand writing and once the signatures on the cheque are admitted, the liability arising therefrom cannot be evaded on the specious plea that the contents were not filed up by the drawer of the cheque', bears relevance.
22. Secondly, the Accused has claimed that there was absolutely no liability as on the date of the presentation of the subject cheques, since his claims/ losses suffered in the business with the Complainant rendered him entitled to significantly higher dues than what could possibly be stated as outstanding from him. The same fact is asserted through a formal email dated 17.3.2020 (Ex CW1/D1) which the Accused had sent to the Complainant. The perusal of the entire of record of evidence reveals that the Accused has nowhere disputed the fact that products under the nine invoices with which he was confronted, were in fact duly received by him. On the contrary, there is a categorical acknowledgment of the said fact in his cross examination. In the same context, when the Accused was asked upfront if he had made any payment for the products purchased under the invoices (Ex CW1/2 colly) till date, he had replied in the negative. Even the perusal of the repeatedly cited email dated 17.3.2020 (Ex Digitally signed by SHRIYA SHRIYA AGRAWAL Page 13 of 17 AGRAWAL Date: 2022.03.31 16:13:51 +05'30' CW1/D1 colly), reveals that the Accused had only expressed his grievances with respect to ruffled business relations with the Complainant and disappointment over promises unmet. He is noticed to have cautioned the Complainant that in the event of the problems remaining unresolved, 'any transactions without billing and payment will stop'. He has further qualified the warning with the words, "
After today, if any of my cheque's (sic) will return, then I will not have any responsibility. Do not use my old cheques that you have."
There is conspicuously no mention of the invoices (Ex CW1/2 colly) in the aforesaid email. The Email also talks of unattended servicing issues, billing done of laptops without permission of the Accused and also of some verbal commitment given but not completed, in absolutely vague terms, with no reference to the products purchased through invoices (Ex CW1/2 colly).
23. The Accused has also admitted in his cross examination to have neither served the Complainant with any formal letter/ email mentioning the exact amount of dues, leave alone a legal notice/ filing any complaint or recovery suit. The reasons given to have not done so are seemingly unconvincing. If the claim of the Accused were so much as cited to be roughly around 48 lakhs, there ought to have been some document to corroborate, through which the calculation would've on some occasion been shared with the Complainant. Noticeably even in the Email dated 3.4.2020 (Ex CW1/D1 colly) also written by the Accused to the Complainant, the former has mentioned his dues to be 'zero' because all his claims et al mentioned in the previous mails being were worth more than the outstanding amount, without actually stipulating what this amount due to him exactly was. Further, if these cheques were indeed Digitally signed by SHRIYA SHRIYA AGRAWAL Page 14 of 17 AGRAWAL Date: 2022.03.31 16:14:05 +05'30' advance cheques meant for clearing dues for invoices raised in the months of September/ October 2019, and if the Complainant had not brought them on record, the Accused ought to have filed those invoices to prove the assertion. The claims of the Accused are ex facie vague and lack credence on account of being couched in uncertain terms.
24. Furthermore, there are inherent contradictions in the defence of the Accused that render his plea unworthy of belief and cannot be overlooked as trivial. Some of these were highlighted during the cross examination of the witness DW1/ Accused recorded on 29.3.2022. For instance, when the witness was asked if stop payment instructions were given on account of the cheques having been issued as security cheques or for the reason mentioned in Ex DW1/1 i.e. letter dated 18.3.2020, issued to the Banker with stop payment instructions on account of 'wrong issuance of the cheques and in back dates', which too is a matter of record. It would be only reasonable to consider either of these versions to be true and not both. The Ld. Counsel for Complainant has also pointed out in his final arguments the fact that the third cheque referred to by the Accused as also having been issued as security, was also noticeably mentioned in the document Ex DW1/1 initially for the purpose of stop payment instructions. By striking it off subsequently, the cheque has however been removed on account of 'paid already'. By that spirit, if all the said cheques (admittedly six) had been issued as security, with one cheque of the lot having been duly encashed, there is not much left for speculation, before coming to the conclusion that all these cheques of the series were initially meant for being encashed towards certain standing dues.
Digitally signed by Page 15 of 17SHRIYA SHRIYA AGRAWAL AGRAWAL Date: 2022.03.31 16:14:23 +05'30'
25. Not only does lack of clarity on/ complete absence of calculation of dues to the tune of Rs 48 lakhs against the Complainant, but also the failure to launch timely action to legally assert his alleged dues against the Company, give rise to an adverse inference against the Accused, rendering his very claim doubtful. Even if the said claim were true and if so, rightly asserted in the arguments, as concerning the unaddressed 'issues' such as maintenance concerns/ business related hiccups, on account of the admitted invoices and receipt of the products thereunder, the payments to the Complainant for the goods received could not have been withheld or deferred unilaterally. Any such counter-claim could have been raised in the proper separate proceedings before the Court of competent jurisdiction.
26. Also, even if the cheques were issued in advance as 'security cheques', the legal position on the subject is crystal clear. It is trite law, as has been held in Sripati Singh (Since Deceased) v State of Jharkhand [2021 SCC OnLine SC 1002], in para 19 as quoted as under:
" In the background of the factual and legal position taken note supra, in the instant facts, the appellant cannot be nonsuited for proceeding with the complaint filed under Section 138 of N.I. Act merely due to the fact that the cheques presented and dishonoured are shown to have been issued as security, as indicated in the loan agreement. In our opinion, such contention would arise only in a circumstance where the debt has not become recoverable and the cheque issued as security has not matured to be presented for recovery of the amount, if the due date agreed for payment of debt has not arrived."
27. The fact that the Accused has failed to prove even prima facie that he had legitimate claims against the Complainant, leave alone satisfying the test of preponderance of probabilities, with not even an Digitally signed by SHRIYA SHRIYA AGRAWAL Page 16 of 17 AGRAWAL Date: 2022.03.31 16:14:38 +05'30' iota of supporting evidence come on record to substantiate, the claim of the Complainant raising presumption of legitimate dues on the basis of admitted invoices, delivery of products and issuance of subject cheques under Section 139 NI Act has gone unrebutted.
28. For the above detailed reasons, the accusation of commission of offence having been successfully brought home by the Complainant, accused is held guilty and convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
29. Relist for hearing on sentence on 8.4.2022.
SHRIYA Digitally signed by
SHRIYA AGRAWAL
AGRAWAL Date: 2022.03.31
16:14:54 +05'30'
Announced in Open Court (Shriya Agrawal)
on 31.03.2022 MM (NI Digital Court-02
PHC, New Delhi /31.03.2022
Certified that this judgment contains 17 pages and each page bears my digital signatures. Copy supplied to parties.
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