Delhi District Court
Seema Grover vs . Chhokhe Lal on 30 June, 2023
IN THE COURT OF SHRI AJEET NARAYAN, M.M-02, SHAHDARA DISTRICT,
KKD COURTS, DELHI
CT. No.: 2414/18
U/s: 138 N. I. Act
P.S: Seemapuri
Seema Grover Vs. Chhokhe Lal
JUDGMENT
1. Sl. No. of the case : 2414/18
2. Date of institution of the case : 08.05.2018
3. Name of complainant : Seema Grover,
W/o Sh. Ravi Kumar Grover,
R/O- L-183 A, Pocket L, Dilshad
Garden, Delhi-110095.
4. Name of accused, parentage : Chhokhe Lal
S/o Sh. Tej Pal,
R/o H. No. C-43/1, Bhagirathi Vihar
Delhi.
5. Offence complained of
or proved : 138 N. I. Act
6. Plea of accused : Accused pleaded not guilty
7. Final order : Conviction
8. Date on which order was
reserved : 25.05.2023
9. Date of pronouncement : 30.06.2023
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BRIEF REASONS FOR THE DECISION OF THE CASE
Factual Background of the case
1. Briefly stated facts of this case as per complaint are that complainant and accused were having cordial relations and accused has taken a friendly loan from complainant for a sum of Rs. 2,50,000/- in 15-01-2017 for urgent need. Hence, accused has issued a postdated cheque bearing no. 396462 dated 15.11.2017 in the sum of Rs. 2.5 lacs drawn on Canara Bank, Shankar Nagar Branch, Delhi in discharge of his debt. Accused has also signed a written note which bears his signature and thumb impression. It is further alleged that the complainant presented the above-mentioned cheque with his bank, but the said cheque was returned dishonored with remarks "Funds Insufficient" vide return memo dated 22.11.2017. Then, complainant approached the complainant and demanded for payment of the said cheque amount, but accused has refused to make the payment.
It is further alleged that thereafter, complainant served a legal demand notice dated 15.12.2017 to the accused, but the accused has not turned up to make the payment. So, present case was filed under Section 138 Negotiable Instruments Act.
Page 2 of 30 Proceedings Before Court
2. On the basis of pre-summoning evidence, accused was summoned for the offence u/s 138 Negotiable Instrument Act vide order dated 08.05.2018. Accused put his appearance on 26.09.2018, and thereafter, a notice under Section 251 Cr.P.C was framed against him on 18-04-2019, by this court to which he pleaded not guilty and claimed trial. Plea of defence of accused has been recorded as per which he states that the cheque in question was issued by him to the Ravi, husband of complainant as blank signed cheque. He does not know the complainant and had not taken any loan from the complainant. He has not received the legal demand notice.
The complainant has relied upon the documents, the original cheque is Ex.CW1/A, cheque returning memo as Ex.CW1/B, Legal notice is Ex.CW1/C copy of registered AD and speed post are Ex.CW1/D and Ex.CW1/E, tracking report is Ex CW1/F and written note is Ex CW1/G. Thereafter, complainant was duly cross-examined by learned counsel for accused. Thereafter, CE was closed, on 25.01.2020.
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3. In statement of accused recorded on 22.12.2021, accused stated that the cheque in question bears his signature. He does not know the complainant but with the conspiracy of her husband Ravi Grover and other relatives, she misused one of the cheques. He did not take any loan from the complainant as he does not know the complainant. He had given two blank cheques to the husband of the complainant i.e., Ravi Grover. He used to take the loan of Rs.10,000/- for 12 weeks and in this regard from the husband of complainant Ravi Grover who generally used to give the loan to the persons in the weekly bazar of Seemapuri (i.e., Thursday bazar). For this loan, he had to pay Rs.1,000/- per week, but in case of 2-3 days late to make the payment, then extra Rs.50/- per day had to be given. At the time of receiving the loan, the husband of the complainant Ravi Grover received two blank signed cheques and some signed blank papers from accused in the year 2012. The said loan was given for a particular period and after paying the entire amount i.e., near about Rs. 14,000/- (including interest) then again, accused took the loan in this way 4-5 times but two blank cheques always remained with him i.e., Ravi Grover. But when the said Ravi Grover increased the rate of interest, then accused stopped to take further loan from the said Ravi Grover and after repeated requests, he Page 4 of 30 never returned the said cheques to accused which were given as a security purpose. He does not have any liability towards the complainant.
Defence has examined accused himself as DW-1, Sh. Deendayal as DW-2, and Nafis Ahmed as DW-3 in DE. Thereafter, DE was closed on 19.10.2022.
Afterwards, final arguments were heard and after hearing the arguments, trial was concluded.
4. I have heard counsel for the parties, perused the record and have gone through relevant provisions of the law.
Findings
5. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first. Now, Section 138 Negotiable Instrument Act provides as under:
Section 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 Page 5 of 30 cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an 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. Page 6 of 30
It is well settled position of law that to constitute an offence under S.138 N.I. Act, the following ingredients are required to be fulfilled:
(1) drawing of the cheque by a person on an account maintained by him with a banker, for payment to another person from out of that account for discharge in whole/part any debt or liability;
(2) 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;
(3) returning the cheque unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque, (4) giving notice in writing to the drawer of the cheque within 30 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount, (5) failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice.
Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the N I Act.
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6. The Act raises two presumptions in favour of the holder of the cheque i.e., Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption under Section 139, that the holder of cheque receiving the same of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability.
Analysing all the concerned provisions of law and various pronouncements in this regard, the Hon'ble Apex Court in Basalingappa v. Mudibasappa, AIR 2019 SC 1983, noted at para 23 as follows [Bharat Barrel and Drum Manufacturing Company v. Amin Chand Pyarelal, (1999) 3 SCC 35; M.S. Narayana Menon alias Mani v. State of Kerala and another, (2006) 6 SCC 39; Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54; Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513; Rangappa v. Sri Mohan, (2010) 11 SCC 441 referred]:
(i) Once the execution of cheque is admitted, Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the Page 8 of 30 probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to support his defence.
7. To put in nutshell, the law regarding the presumption for the offence under Section 138 N.I. Act, the presumptions under Sections 118(a) and 139 have to be compulsorily raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted upon the Page 9 of 30 accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. The onus to prove the issuance of the cheque lies upon the complainant, and the same has to be proved beyond reasonable doubt, unless the accused admits the same. Once the issuance of cheque is established, either by admission or by positive evidence, the presumption under Section 139 of the Negotiable Instruments Act, 1881 arises. We can summarize the general principles in the following way:
Onus of proof: Section 139 of the Negotiable Instruments Act, 1881 states 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. Therefore, here the onus shifts upon the accused to prove the nonexistence of debt or other liability. Section 139 of the Negotiable Instruments Act, 1881 uses the word "shall presume", which means that the presumption under Section 139 is rebuttable. Standard of proof: The standard of proof required to rebut the presumption under Section 139 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 other liability, the onus shifts back to Page 10 of 30 the complainant to prove by way of evidence, beyond reasonable doubt, that the cheque in question was issued by the accused in discharge, whole or in part, of any debt or other liability, and now the presumptions under Section 118 (a) and Section 139 will not come to the aid of the complainant. Mode of Proof: The accused may adduce direct evidence to prove that the note/cheque in question was not supported by consideration, and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should prove the nonexistence of the consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated.
At the same time, it is clear that a bare denial of passing of consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances upon the consideration of which, the Court may either believe that the consideration and debt did not exist, or their nonexistence was so probable that a prudent man would, under circumstances of the case, act upon the plea that they did not exist.
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As discussed above, from the legal provisions and the law laid down in various judgments, it can be safely gathered that it is for the accused to rebut the presumptions. He can do so by cross examining the complainant, or by leading defence evidence, thereby demolishing the case of the complainant. It is amply clear that the accused does not need to discharge his or her liability beyond the shadow of reasonable doubt. He just needs to create holes in the case set out by the complainant. Accused can say that the version brought forth by the complainant is inherently unbelievable and therefore the prosecution cannot stand.
8. In the present case, the accused in his defence under Section 251 Cr.P.C. has accepted his signature on the cheque and issuance of cheque. In such a scenario, a presumption shall be raised under Section 139 r/w Section 118 of NI Act that cheque in question was issued in discharge of valid debt or liability and it is thereafter upon him, to rebut them by adducing evidence. If upon preponderance of probabilities, the accused is able to do the same, onus once again shifts back on the complainant to prove its case beyond reasonable doubt.
9. In the present case, the accused has submitted in his defence under Section 251 Cr.PC, and in statement under Section 313 of Cr.PC that that the cheque in question was issued by him to the Ravi, husband of complainant as Page 12 of 30 blank signed cheque. He does not know the complainant and had not taken any loan from the complainant. He had given two blank cheques to the husband of the complainant i.e., Ravi Grover. He used to take the loan of Rs.10,000/- for 12 weeks. At the time of receiving the loan, the husband of the complainant Ravi Grover received two blank signed cheques and some signed blank papers from accused in the year 2012. The said loan was given for a particular period and after paying the entire amount i.e., near about Rs. 14,000/- (including interest) then again, accused took the loan in this way 4-5 times, but two blank cheques always remained with him i.e., Ravi Grover. He has not received the legal demand notice. He did have not any liability towards complainant.
10. The accused has cross-examined complainant as CW-1, has examined himself as DW-1, Sh. Deendayal as DW-2, and Nafis Ahmed as DW-3 in DE for purpose of proving his defence. The main question to be decided is whether there was outstanding liability towards accused of cheque amount as claimed by the complainant or whether cheque was misused by the complainant.
It is the case of complainant that complainant has given friendly loan of Rs. 2,50,000/- to accused and the accused has issued cheque in question for discharging the liability outstanding towards complainant. Page 13 of 30
Per Contra, it is the case of accused that the cheque in question was given as blank security cheque to husband of complainant as accused has taken loan from husband of complainant which he has repaid and he has not taken any loan from complainant. Accused alleges that he has no liability towards the cheque in question towards the complainant.
11. Regarding the defence of the accused that he had issued blank signed undated cheque, it is manifest that by reason of the provision under Section 20 NI Act, a right has been created in the holder of the cheque. When a blank cheque is signed and handed over, it means that person signing it has given an implied authority to any subsequent holder to fill it up. Prima facie, holder thereof is authorized to complete the incomplete inchoate instrument. Thus, merely the allegation of issuance of incomplete negotiable instrument does not create absolute defence in favour of the accused. There is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. Hence, once accused has admitted his signature on cheques, he cannot escape his liability on the ground that same has not filled in by him. A person issuing a blank cheque is supposed to understand the consequences of doing so. Thus, this defence is of no assistance to accused. (Jaspal Singh v. State, Crl. Rev. Page 14 of 30 160/2016, by Hon'ble High Court of Delhi, & Ravi Chopra v. State 2008 (102) DRJ 147, relied on.) As regards the defence of accused that cheque in question was security cheque is without any merits in view of the decision of Hon'ble Apex Court in ICDS Ltd Vs. Beena Shabeer (2002) (2) SCC 426 and of Hon'ble High Court of Delhi in Credential Leasing & Credits Ltd. Vs. Shruti Investments & Anr 223 (2015) DLT 343, that security cheques fall within the purview of Section 138 NI Act. As per the decision of Credential Leasing & Credits Ltd. vs. Shruti Investments & Anr (supra) it has been held that the scope of Section 138 NI Act would cover cases where ascertained and crystallized debt or other liability exists on the date when the cheque is presented and not only to the cases where ascertained and crystallized debt or other exists on the date on which it was delivered to the seller as a post-dated cheque or as a current cheque with a credit period. Hence, it would have to be examined in a case-to-case basis, whether an ascertained or crystallized debt or other liability exists or not.
12. The accused has cross-examined complainant as CW-1, has examined himself as DW-1, Sh. Deendayal as DW-2, and Nafis Ahmed as DW-3 in DE for the purpose of rebutting the presumption and for proving his defence. Page 15 of 30
Coming to the defence of accused, accused has stated that cheque in question was given as blank security cheque to husband of complainant as accused has taken loan from husband of complainant which he has repaid and he has not taken any loan from complainant. As per his defence, accused needs to prove this fact that there is no liability outstanding to her and cheque in question was given as security.
DW-1, Accused/ Chhokhe Lal has deposed that he sells the kids garment dresses in the weekly Bazar. He was in dire need of some money, then some of his business colleagues who were also sitting in the weekly Bazar for selling their goods, told accused to approach Mr. Ravi Grover who gives a loan of Rs.10,000/- for 12 weeks with the condition that accused has to deposit two blank signed cheque and also the documentary evidence like Aadhar Card, Photo, etc. The said Ravi Grover used to come in the weekly Bazar of Thursday in Seemapuri on every Thursday. Accused talked to him for his loan and he agreed and asked accused to come with two blank signed cheques and personal documents. Accused came with the same and the said Ravi Grover received the blank signed cheques and also accused have signed two blank papers. Accused received Rs.10,000/- with a condition that every Thursday he has to pay Rs.1,000/- for 12 months and if he misses to pay Rs.10,000/- on time, then he Page 16 of 30 has to pay Rs.50/- per day as a fine and he was paying like the same and after completion of 12 months again, accused requested Ravi Grover to pay Rs.10,000 as a loan. On that condition Ravi Grover provided accused Rs.10,000 and same way accused have paid entire amount in 12 weeks. In this way, again i.e., third time, accused have also taken the loan of Rs.10,000 on that condition and he paid entire amount of Rs. 10,000 in 12 weeks. When again accused requested for loan again of Rs.10,000/-, Ravi Grover told accused that the rate of interest is not like before, and accused has to pay Rs.1200/- per week for 12 weeks and also told accused that if he misses to pay the payment on time, he has to pay more money as a fine. Then accused refused to take the loan again and told Ravi that he will not take any loan and requested him to return the said cheques and blank signed papers, but on one pretext or another Ravi did not return the said cheques and blank signed papers. After that, Ravi Grover misused the cheque and filled the cheque with the name of his wife i.e., Mrs. Seema Grover. But accused has never met with Mrs. Seema Grover and he does not know her. Accused has only received the loan from Mr. Ravi Grover and handed over two blank signed cheques and two blank papers to Mr. Ravi Grover.
DW-2, Sh. Deendayal has deposed that he generally sells the Men's Garment and go to the maximum weekly bazar in Delhi including Seemapuri Page 17 of 30 weekly Bazar for his business. He knows the accused Chhokhe Lal as he is his younger brother. However, accused received a loan of Rs.10,000/- for 12 weeks from Ravi Grover who is the husband of the complainant with the condition to pay Rs.1000/- per week and if the accused fails to pay the EMI i.e., Rs.1000/- per week, then he has to pay Rs.50/- per day as a fine. The accused fulfilled the same and after completion of the 12 weeks' time, he again took the loan of Rs.10,000/- from Ravi Grover with the same condition and he fulfilled the same condition and paid the entire amount to Ravi Grover. After that, he again for the third time, took a loan of Rs.10,000/- with the same condition and fulfilled the same and paid the entire amount to Ravi Grover. When he again requested for loan then, the said Ravi Grover told the accused that the rate of interest has already been increased and he had to pay the same with the increased rate of interest. If he agreed, then the said Ravi Grover will give the loan to the accused again. But the accused refused to take the loan to new condition and requested to Ravi Grover to return the two blank cheques and two blank signed papers. But, on one pretext or other he avoided the accused and did not return the same. As being the brother of the accused DW-2 also requested Ravi Grover to return the same, but Ravi Grover did not return the same. After that, Ravi Grover filled one of the two cheques in the name of his wife i.e., Mrs. Seema Grover Page 18 of 30 (complainant) and presented in the bank. Accused has never seen the complainant Mrs. Seema Grover in the weekly Bazar and DW-2 also does not know the complainant Mrs. Seema Grover. The accused took the loan from Ravi Grover and he handed over two blank signed cheques and two blank papers to Ravi Grover, but Ravi Grover has misused the cheques with the collusion of his wife i.e., Seema Grover. After that, accused did not receive any loan from Ravi Grover. There is no monetary transaction and business transaction between complainant and accused.
DW-3, Sh. Nafis Ahmed has deposed that he sells ladies purse in the weekly bazar in Delhi and also in Seema Puri weekly Bazar i.e., on every Thursday. He knows the husband namely Ravi Grover of complainant Seema Grover. Ravi Grover generally gives loan to the poor sellers in Seema Puri weekly bazar. He knows the accused namely Chhokhe Lal for the last 20-25 years. Accused Chhokhe Lal received a loan of Rs. 10,000/- for 12 weeks from Ravi Grover husband of the complainant and he has to pay Rs. 1000/- per week for 12 weeks i.e., 12000/- for Rs.10,000/- and at the time of receiving the loan the accused Chhokhe Lal handed over two blank signed cheques to Ravi Grover and also took blank signed papers from the accused. The accused has taken the loan of Rs.10,000/- 2-3 times with the same condition, but first time the accused has Page 19 of 30 given two blank signed cheques and blank signed papers, but after paying the entire dues, the accused did not take loan again, due to the high interest but the Ravi Grover did not return the blank signed cheques and blank signed papers to the accused and he filed a false case filling one cheque by her Mrs. Seema Grover to harass and extort the more money from the accused.
Now, it needs to be analysed, whether accused has been able to prove her defence on preponderance of probability.
Coming to cross examination of DW-1/accused no 1, accused has admitted that he does not know the accused personally and had approached him through other persons in market. Accused has admitted that when he had received the loan for the first time, he had not brought the blank papers with himself. He had brought two blank cheques at the time of loan, but there was no witness when he had handed over the cheques to Ravi Grover or received the loan amount. Accused has deposed in his cross examination that he does not remember the exact time when he had received lastly the loan from Ravi Grover and on the all occasions when he had received loan from Ravi Grover, there was no witness in whose presence, the loan was received or returned. He has deposed that perhaps in the year 2017, he had asked Ravi Grover to return his blank signed cheques and also signed blank papers, but he has not returned. Page 20 of 30 Accused has admitted that he has not made any complaint against Ravi Grover as he had not returned his blank signed cheques and also signed blank papers and also not instructed to his bank to stop payment of those cheques.
When accused has been shown Ex. CW1/G, the promissory note, he has identified his signature on the document at point-A. Accused has deposed that he has signed on blank paper and there was revenue stamp on the paper. He has deposed that he had signed 5-6 papers at the time of obtaining loan, out of which, 2-3 were not blank and remaining were blank. Ex CWI1/G is the promissory note executed by accused on 02-07-2017, which contains that he has taken a loan of Rs. 2,50,000/- from complainant on 15-01-2017 and he has handed over the cheque no 396462 dated 15-11-2017 of Canara bank, i.e., cheque in question to complainant in discharge of loan taken. The contention of accused that he has signed on blank papers is a bald denial unsubstantiated by any cogent evidence. It is not the case that accused is illiterate persons and does not know to read and write. The onus of proving the fact that he has signed on blank papers is on accused as this is a special fact within the knowledge of accused. Accused being a literate person should be aware about the consequence of signing on blank paper. The defence that the accused had signed blank paper is not acceptable because accused is an educated person Page 21 of 30 and he admittedly signed the documents of his own free will without any pressure. It is unlikely that even a basic educated person shall sign blank papers.
Coming to cross examination of DW-2, he has deposed that he is brother of accused, and he has admitted in his cross examination that accused has not taken money from Ravi Grover in his presence or returned the same in his presence, also accused has not handed over the signed blank cheque to Ravi in his presence. DW-2 is not the direct witness of any transaction and his testimony does not help in the defence of accused.
Coming to cross examination of DW-3, he has deposed that he sells lady purse in weekly bazar in Seema Puri market, witness has admitted in his cross examination that in his presence, no loan amount has been borrowed by the accused from Ravi Grover. Everything he has deposed in his examination in chief is told to him by the accused. So, DW-3 is a hearsay witness and his testimony is of no use to the accused.
Coming to the cross-examination of the complainant/CW-1, it is deposed by the complainant that, she is a housewife and does not have any source of income. She has denied the suggestion that the accused has not met her in person. She has admitted that the accused is known to her husband and her husband is in the whole sale business of garments of the kids and he supply Page 22 of 30 garments in the weekly bazar in Seemapuri, Janta Flat and also used to supply from the house. She also occasionally visits the market along with her husband. CW-1 has denied the suggestion that her husband had given the daily basis loan of Rs.10,000/- to the accused and accused had repaid the loan to her husband by paying Rs.1,000/- towards interest per week for the period of 10 months. She has denied the suggestion that her husband had received total sum of Rs.20,000/- from the accused as interest and her husband had taken two blank signed cheques and blank papers from the accused at the time of giving the loan of Rs. 10,000/-. CW-1 has deposed in her testimony that he does not know as to who has written the particulars on the cheque in question and has denied the suggestion that the particulars on the cheque in question has been filled by her or her husband. Counsel of accused has given the suggestion to the complainant that Ex. CW-1/G does not bear the signature of the accused, which is contradictory to defence taken by the accused in his testimony that Ex. CW-1/G bears his signature at point A, but he has made signature on blank papers. It casts a doubt over version of accused.
13. In this case, accused has not brought anything on record to prove his defence. Coming to the case of accused, accused has admitted the fact that he has taken loan from the husband of complainant 4-5 times, but each time he Page 23 of 30 has repaid the loan, but admittedly there is nothing on record, no document, no witness to prove this fact. Accused has brought nothing on record to substantiate his claim that he has taken loan from husband of complainant on multiple occasions and also that he has returned the same. Also, there is no witness in whose presence he has handed over blank cheque to Ravi Grover and has signed on blank papers. Accused has not brought any document, receipt, written agreement etc., regarding its claim. Hence, accused has not proved this fact by any independent evidence. On the contrary accused has not been able to prove that Ex. CW1/G is forged or he has signed on blank paper which has been misused by the complainant. Ex. CW1/G clearly mentions the number of cheque, date and other particulars that the cheque in question is issued as discharge of loan taken by accused.
Also, there is contradiction in the version of accused regarding this, as he has stated in his statement under Section 313 CrPC that he has taken loan in year 2012, when he has handed over blank cheque and blank papers to the Ravi Grover, husband of complainant, but accused in his cross examination in DE has stated that he has taken loan in 2015 for the first time. It shows that story of accused is not trustworthy. Therefore, in this case, accused has not brought Page 24 of 30 anything on record to prove his defence. The defence taken by accused are merely bald assertions in absence of any cogent evidence.
It is the case of accused he has issued the cheque in question as security cheque and has repaid the loan amount to the complainant but accused has not proved this by way of any independent evidence. It is only a bald assertion that he does not have any liability and complainant has misused the cheques. Accused has not adduced anything to substantiate its case. Also, accused has not made any police complaint, or any written communication regarding the fact that complainant has not returned the cheque and he has misused the cheque in question. Also, accused has not given any stop payment instructions to the bank like a prudent person if there was no liability and if complainant has not returned back the cheque. Accused has failed to explain as to how, the cheque came into possession of the complainant, if there is no liability towards complainant.
Hence, defence of accused is unsubstantiated by any cogent evidence. Hence, it casts a doubt over version of accused.
14. Coming to the cross-examination of the complainant/CW-1, complainant has denied the defence of accused. Complainant has denied the suggestion that the same was blank signed cheque or that she had misused the Page 25 of 30 same and filed the present case against the accused. It is argued by counsel for accused that complainant in her testimony has deposed that she does not have any source of income, then how could she have advanced the loan to the accused. Although, complainant has deposed that she does not have any source of income, but counsel of accused has not put questions to the complainant regarding source of funds. Also, this defence is of no use to the accused as has admitted taking the loan from the husband of complainant and has also executed Ex.CW1/G which could not be disproved by the accused.
Counsel for accused has taken another defence that the Ex.CW1/G is not a promisory note as promissory note must be unconditional as per section- 6 of NI Act. The contention is not tenable as the document Ex.CW1/G is in nature of acknowledgment of taking the loan from complainant by the accused and handing over the cheque in question to the complainant for discharge of his liability. The nomenclature of document does not make a difference in this case.
As far as the testimony of the complainant is concerned, accused has failed to elicit anything out of the testimony of the complainant, to his benefit. Accused is not able to bring out any major inconsistency in the story of complainant whereby he is able to rebut the presumption. There is nothing coming out in the cross examination of complainant's witness which would Page 26 of 30 probabilise the defence raised by the accused or falsify the case of the complainant. There is nothing in the cross-examination of the complainant regarding the defence taken by the accused, which could be of assistance to accused.
In view of the provision of section 139 of NI Act r/w Section 118 NI Act thereof, the Court had to presume that cheque has been issued for discharging debt or liability. The said presumption which is rebuttable could be rebutted by accused by proving the contrary. The accused had to prove by cogent evidence that there was no debt or liability. For shifting the burden, accused has to prove his defence by preponderance of probabilities whereas he has failed to do so. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. Without rebutting the presumption, the onus to prove his case will not shift to complainant. The evidence of complainant can't be considered till the accused raises a probable defence in his favour. Although accused can rely on the evidence brought on record by the complainant to rebut the presumption, however in the present case, there is nothing in the cross-examination which is in favour of accused.
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Also, it must be remembered that once the presumption u/s 139 NI Act is drawn the complainant need not prove his source of funds, etc., and also, evidence of complainant can't be considered, till accused discharges his burden as has been held by Apex Court in Rohit Bhai Jeevan Lal Patel Vs. State of Gujarat 2019 SCC online SC 389.
Recently, Supreme Court in P. Rasiya vs Abdul Nazer, in Criminal Appeal Nos. 1233-1235 of 2022, has held that complainant is not required to spell out in the complaint, the nature of transaction or source of fund, since the onus is on the accused to prove that the cheque was issued not towards a debt or liability.
15. Regarding the requirement of giving notice in writing to the drawer/accused of the cheque within 30 days of the receipt of information by the payee from the bank, the accused has submitted that he has not received the notice, but this contention is not tenable, since legal notice was posted at the correct address of the accused, then the burden to prove that accused did not receive it, is on the accused, which he has not discharged, by leading cogent evidence. Also, the address of accused in his testimony as DW-1 is same as address of accused on record.
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Also, the defence of the accused that he did not receive legal demand notice without any merits as in decision in C.C. Alvi Haji v. Palpetty Muhammad & Anr. (2007) 6 SCC 555, which states that in case, drawer of cheque raises an objection that he never received legal notice, he/she can within 15 days of the receipt of the summons make payment of cheque amount and in case, he does not do so, he cannot complain that there was no proper service of legal notice under Section 138 NI Act.
16. From the foregoing discussions, it is clear the accused has not led any such cogent evidence to rebut presumptions under S. 118/139 NI Act. In view of the aforesaid discussions the court finds that accused has not been able to prove any probable defence and has failed to rebut the presumption raised under Section 118/139 of NI Act.
17. The complainant has been able to prove that the cheque in question i.e., bearing no. 396462 dated 15.11.17, for amount of Rs.2,50,000/- and drawn on Canara Bank, Shankar Nagar Branch, New Delhi, as Ex.CW1/A, was issued in discharge of a valid legally recoverable liability owed to the complainant by the accused, with the aid of presumptions of law raised in his favour. Page 29 of 30
18. Therefore, the entirety of the evidence holds the accused guilty and the accused Chhokhe Lal is convicted for the offence punishable U/s. 138 of the Negotiable Instruments Act in respect of cheques in question. Digitally signed by AJEET
AJEET NARAYAN
NARAYAN Date: 2023.07.01
18:15:46 +0530
Announced and dictated directly (AJEET NARAYAN)
in the open court on 30.06.2023 MM-02/Shahdara/KKD Courts
30-06-2023
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