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[Cites 8, Cited by 0]

Delhi District Court

Comp. Cases 664 Titled Ki George vs . Mohd. Master. on 30 November, 2009

                                  -: 1 :-


IN THE COURT OF MS. PREETI AGRAWAL GUPTA: SENIOR CIVIL 
           JUDGE­CUM­RENT CONTROLLER: ROHINI DELHI


                                                 CASE NO. 1693/09.
                                                 P.S. ALIPUR
                                                 U/S 138 N.I.ACT.

JUDGMENT:
    1. Sl. No. of the case                   :1693/09
    2. Name of the complainant               :Jagmal  Singh S/o late Sh. 
                                             Puran Singh , R/o Village  
                                             Tigipur,P.O. Bakhtawarpur, 
                                             New Delhi.
    3. Name of the accused & Address         :Ravinder S/o Sh. Bhanwar 
                                             Singh, R/o 107, Tigipur, 
                                             Narela, Delhi,PS Alipur.

    4.   Offence complained of               :U/s 138 N.I.Act.
    5.   Plea of accused                     :Pleaded not guilty.
    6.   Final order                         : Acquitted
    7.   Date of such order                  : 30.11.2009.



                    Date of Institution  : 14.02.2006.
                    Date of reservation: 18.11.2009.
                    Date of Judgment  : 30.11.2009.


 
                                     -: 2 :-

BRIEF FACTS OF THE REASONS FOR THE DECISION:

1. By way of the present judgment, the present complaint U/s 138 Negotiable Instruments Act filed by the complainant against the accused shall be adjudicated upon. The present complaint has been instituted by the complainant with the averments that the accused was granted a friendly loan of Rs. 3,50,000/­ in cash by the complainant for a short term, at request of the accused. It is the case of the complainant that in order to discharge the liability against friendly loan , the accused issued cheque bearing no. 349994 dt. 07.11.2005 amounting to Rs. 3,50,000/­ drawn on Bank of India, Bakhatawar Pur Branch, Delhi in favour of the complainant with the assurance that the same would be honoured on its presentation. It is averred that despite assurance, the said cheque was dishonoured on presentation by the bankers of the accused vide memo dt. 06.12.05 with the remarks "

FUNDS INSUFFICIENT" and "EXCEED ARRANGEMENT".

It is averred that the complainant informed the accused about dishonourment of the cheque and demanded the amount but the accused did not respond and, therefore, a legal notice dt. 30.12.05 was issued to the accused through his counsel duly received by the accused. It is further the case of -: 3 :- the complainant that the registered cover of the legal notice was received back with the report that 'the addressee/ accused was out for uncertain period on inquiry'. It is averred that the accused was served through UPC but despite service, accused did not make any payment within the notice period, hence, the present complaint. It is averred that the accused issued the cheque in question in discharge of his debt and liability arising out of the friendly loan advanced by the complainant to him and that the accused has willfully committed the offence in section 138 Negotiable Instruments Act.

2. The complainant led its pre­summoning complainant evidence and the accused has been summoned for the offence U/s 138 Negotiable Instruments Act vide order of the Ld. Metropolitan Magistrate dt. 13.11.2006. On appearance, accused has been admitted to court bail and notice U/s 251 Cr.P.C. was read out and served upon the accused as prima facie case U/s 138 Negotiable Instruments Act has been disclosed.

3. The complainant has been granted an opportunity to lead post summoning complainant evidence whereby the complainant has examined himself as the sole complainant's witness. Evidence of affidavit of the complainant at the pre­ -: 4 :- summoning stage has been adopted by the complainant at the post notice complainant evidence stage also. It is the case of the complainant as deposed in consonance with the averments of the complainant, that on 20.03.05, the accused approached and requested the complainant for a friendly loan of Rs. 3,50,000/­ for a short period against which the accused issued the cheque in question in discharge of his liability. The cheque in question has been tendered in evidence as Ex. CW1/1 and the return memo of the cheque dt. 06.12.05 has been tendered as Ex.CW1/2. A legal notice dt. 30.12.05 is Ex. CW1/3 with the postal receipt Ex. CW1/4, UPC slip and returned registered envelop as Ex.CW1/5 to Ex.CW1/6. It has been testified by the complainant that the accused has mischievously and intentionally issued the said cheque with ulterior motive to deceive the deponent knowing fully well that the said cheque would not be honoured on presentation further deposing that the accused has rendered himself liable for criminal consequences U/s 138/142 of Negotiable Instruments Act . The complainant has further testified that the present complaint has been filed within the limitation and that the contents of the complaint and affidavit are correct. The complainant witness as PW1/CW1 has been -: 5 :- cross­examined at length by Mr. Ramesh Saini, counsel for accused. The witness has been asked about his education and economic condition on which the complainant has deposed that he is a matriculate who has been living separately from his family members since last 5­6 years. The testimony has been recorded in January 2008. It is deposed by CW1 that he is working as Gateman at APMC Delhi with a salary of Rs. 9,000/­. The witness has deposed that he does not file income tax return. It is further deposed that the loan amount was collected from the agriculture income of the complainant. The witness has been further cross­examined regarding the responsibilities of his children and his place of residence. CW1 has deposed that his sons were studying at the relevant time when the loan was given and he has been residing in his house which is an ancestral property and he has never purchased any property. The witness has been asked about his economic liabilities in day to day living. CW1 has replied that he has been paying a sum of Rs. 28,000/­ half yearly for studies of his children and spending about Rs. 500/­ monthly at household expenses. The witness has been asked as to when the loan was given to the accused to which the complainant has stated in his cross­examination that he did -: 6 :- not remember when the loan was given to the accused but may be in the year 2000 but could not recall the date, month and year. It is further deposed that no body was present at the time of giving the loan and the said loan was given to the accused at the residence of the complainant. It is further deposed that when the friendly loan was given to the accused, no pronote, receipt or any documents was executed and no guarantor was called or present. It has been further stated in his cross­examination by the complainant that there was no other security of the loan given by the accused. CW1 has been further cross­examined regarding the availability of the loan amount to which the complainant has replied during further cross­examination that the loan amount was lying with him at his house prior to giving the same to the accused. The witness could not recall the time when he went to the accused for repayment of the loan amount or time when the accused issued a cheque in question in discharge of his loan liability . It has been further deposed by CW1/ complainant during cross­examination that he did not remember whether any body was present at the time of issuing the cheque by the accused.

4. The complainant has been further cross­examined -: 7 :- at length regarding the execution of the cheque in question which is Ex. CW1/1. CW1 has deposed that cheque was given by the accused after filling up the same but failed to tell as to who filled up the cheque with the deposition that the said cheque was not filled up in his presence. CW1 has further testified that the accused used to come to the complainant and got the loan amount in installment. It is deposed that he had got the loan amount from the bank for purchasing the tractor which he has returned. It is further testified that he did not get any promissory note from the accused as the loan was given in installment , deposing futher that the loan was not given on interest. It is further deposed by the complainant that he did not remember the period for which the loan was given for the accused further deposing that the accused used to get the loan from him as per his needs but could not remember the date, time, month and the year on which the loan/installment was given to the accused. The witness has been further cross­examined regarding the nature of his business to which the accused has replied that he used to sell the vegetables in APMC, Azadpur, Delhi, denying the suggestion that he had any partnership in the business with the accused. The complainant has denied that he obtained blank cheque for -: 8 :- the business of vegetable selling in APMC , Azadpur, Delhi. It is also denied that he got the said cheque as security since he himself was working as a Gateman at APMC, Delhi and could not take an active part in business being a government employee whereas the accused was active part in the said business. It has been denied that the accused spent huge amount in the said business and further denied that he has never issued a loan to the accused or that the cheque in question was not issued in discharge of any liability . CW1 has denied the suggestion that the cheque was given for doing vegetables selling business as security and that the present complaint has been filed by the accused only to harass the accused. The complainant evidence was thereafter closed.

5.. The court there upon has recorded the detailed statement of the accused U/s 313 CR.P.C. after putting each and every incriminating evidence on record to the accused giving an opportunity to the accused to furnish the explanation but without oath. The accused has denied that he borrowed any loan from the complainant or issued the cheque in question in question. The accused has however, not denied the material on record in respect of the -: 9 :- presentation of the cheque in question and dishonourment of the same vide memo Ex. CW1/ 2 . Accused has also not denied the receipt of legal notice but has denied any liability against him upon the cheque in question. It is the explanation of the accused that the complainant was a partner in the business of vegetables selling with the accused. It is stated further that the complainant was an employee in APMC and therefore, the complainant was the passive partner and that the said cheque in question was given to the complainant in blank to make the payment of vegetables to the sellers for purchasing the vegetables. The accused has alleged that the present case has been instituted only to harass him and to extract money from him. Accused thereafter desired to lead defence evidence.

6. Accused has tendered only one witness namely Mahender Singh in his defence who has appeared in the witness box and has led his chief examination as DW1. DW1, on oath has testified that he was working as a Commission Agent in the firm M/s Chouhan Trading Company at D­382 & D­1228, New Subzi Mandi, Azadpur, Delhi. DW1 has deposed that both the complainant and the accused used to come to this firm for selling the vegetables. It is deposed that both the parties of this case -: 10 :- used to come to him on alternate days at the aforesaid address of the firm. DW1 has further deposed that on 02.09.03, vegetables value at Rs.21,810/­ was sold for Jagmal Singh and Ravinder Kumar. The witness has tendered copy of the bill No. 1101 dt. 2.9.03 as Mark "A" explaining that the original of the same has been destroyed by him after one year. DW1 has deposed that at Mark "A", signatures at point "A" are of his own Clerk / Munshi. DW1 has not been cross­examined by/for the complainant despite opportunity. The defence evidence has thereafter been closed by ld. Counsel for the accused.

7. The court has heard arguments addressed by Ld. Counsel for the complainant Sh. D.V.Khatri and Sh. R.S. Saini, Ld. Counsel for accused. The court has carefully gone through the entire record pertaining the present case for appropriate adjudication under consideration before the court.

8. Before duly considering the entirety of facts in light applicable law on the facts of the present case, it is necessary for the court to keep in mind that the present case pertains to a criminal trial against the accused U/S 138 -: 11 :- Negotiable Instruments Act whereby the initial onus to prove the case against the accused lies upon the complainant who has the onus to discharge in order to establish an unbroken chain of event pointing out towards the commission of offence by the accused thereby proving its case against the accused beyond pales of reasonable doubt. Thus law of criminal jurisprudence are applicable to these proceedings U/s 138 N.I. Act but same are subject to special enactment of Negotiable Instruments Act which lays down the presumption in favour of the holder of the cheque by virtue of Section 118 Negotiable Instruments Act. The Court is to examine if the accused is entitled to any benefit of doubt that may arise due to any discrepancies or lack of worthiness of the case of the complainant as per the special rules of evidence applicable under the Negotiable Instruments Act in addition to the special rules of evidence applicable to criminal trial to the extent that they do not contradict each other. Therefore, the following ingredients are required to be prove under Negotiable Instruments Act for adjudication of the case U/s 138 N.I.Act.

1. The cheque should have been issued by the accused in discharge in whole or in part of any debt or any other liability.

-: 12 :-

2. The cheque should have been presented to the bank within a period of 6 months from date of its being drawn or period of validity which is earlier.

3. The cheque should have been dishonored either because of 'insufficient funds' or for the remarks 'exceeds arrangements'.

4. The payee or holder in due course of cheque, as the case may be, makes the demand for payment of cheque amount by demand notice which has to be given in writing to the drawer of cheque within 30 days from the receipt of such information.

5. The drawer of cheque fails to make payment within 15 days of the receipt of such notice.

6. That the complaint has been filed within one month of the cause of action being arisen in favour of the complainant.

9. The aforesaid ingredient are to be proved in light of the provisions U/S 118 of Negotiable Instruments Act which lays down the presumption in favour of the holder of the cheque to the effect that the cheque was received for discharge " in whole or in part" for any debt or other liabilities by the drawer. It is accordingly, the law of the land that the legal -: 13 :- presumption of the cheque being issued in favour of the holder for due discharge of liability shifts the burden of proof upon the accused whereby it is for the accused to adduce rebuttal evidence to prove that the cheque was not issued towards any antecedent liability. The court is to accordingly appreciate the evidence in light of this applicable law regarding burden of proof which shall be discussed, at length later in this judgment. Reliance placed on (1999) 97 Comp. Cases 664 titled KI George Vs. Mohd. Master.

10. The Court, however, is to satisfy itself regarding the following four aspects for bringing home the conviction U/S 138 Negotiable Instruments Act. 

                 (a)    Validity of cheque.

                 (b)    The complaint being filed within limitation.

                 (c)    That     the   dishonoured   cheque   was   being 

                 issued in due         discharge   of   a   legally   enforceable 

                 liability by the drawer.

(d) Service of legal demand notice on the accused and his failure to pay the cheque amount within 15 days of such demand notice.

11. The court shall now examine the facts of the present case in light of the aforesaid ingredients required to be proved beyond the pales on reasonable doubt against the accused for -: 14 :- conviction U/s 138 Negotiable Instruments Act. As regard the first ingredient pertaining to the validity of the cheque in question, the cheque Ex. CW1/1 for an amount of Rs. 3,50,000/­ is stated to have been issued by the accused on 07.11.05 in order to discharge his liability towards the complainant for the friendly loan of Rs. 3,50,000/­taken by the accused from the complainant on 20.03.05. The complainant has led his evidence as the sole complainant witness and has deposed in his chief examination. It is deposed by the complainant that the cheque Ex. CW1/1 was issued by the accused in discharge of his liability. The complainant PW1/CW1 has been cross­examined on the aspect of issuance of cheque by the accused whereby the complainant has deposed that the cheque was given by the accused after filling the body of the cheque with the further deposition that the cheque was not filled in the presence of complainant. In this regard, the court has also examined the statement of accused U/s 313 Cr.P.C. wherein the accused has stated without oath that he had not borrowed any loan from the complainant and has not issued any cheque in discharge of his liability. The accused has denied any liability against the cheque in question and has stated that the cheque was given to the complainant as blank cheque to make the payment for purchasing the vegetables. It is the case -: 15 :- of the accused that the complainant filled the body of the cheque and presented the same to harass and get money from the accused.

12. The court is to examine the case U/s 138 Negotiable Instruments Act which is a special enactment and the legislative intent to give full force and validity to such documents which have duly signed voluntarily by the Executor. In the present case, the accused has not denied the signatures on the cheque and has also not denied the fact of of giving the cheque himself to the complainant . It is well settled principle of law as held in numerous authorities laid down by Hon'ble Supreme Court of India that even if blank cheque is given, the mere defence that the cheque was issued in blank can not be taken as a defence to avoid liability of such instrument once it is found that the document produced before the court satisfies the requirement of issuance of cheque. It has been laid down in H.Maregowda Vs. Thippamma AIR 2000 Kant 169 that a reading of section 20 of Negotiable Instruments Act reveals that the words used are "either wholly blank or having written thereon an incomplete Negotiable Instrument" . It has been held that the person executing the such documents shall be liable upon such instrument, in the capacity in which he signed the same, to any -: 16 :- holder in due course for such amount.

13. In light of the applicable law, there is no doubts created on the validity of the cheque which stands duly proved on record as Ex. CW1/1 and has admittedly issued by the accused also, though not admitting the contents thereof. The cheque in question accordingly, stands duly proved in light of the aforesaid authorities and by virtue of provisions under in section 20 of Negotiable Instruments Act and shall legal bind the accused for the consequences and liability that may flow from the same, in case the remaining necessary ingredients for commission of offence U/s 138 Negotiable Instruments Act are proved in accordance with law against the accused beyond the pales of reasonable doubt. The first ingredient stands duly proved on record against the accused beyond the pales of reasonable doubt. The second ingredient that is required to be proved to bring home the guilt of the accused in the present case U/s 138 Negotiable Instruments Act is to examine the aspect of filing of the complaint within limitation. There is no such defence put forth by the accused regarding the filing of the complaint beyond limitation. On the aspect of limitation, ld. Counsel for accused has contended that during cross­examination of PW1/ CW1, the complainant has deposed regarding the giving of loan to the accused in the year 2000 whereas the cheque in question -: 17 :- pertains to the date 07.11.2005. This aspect however, is not relevant for examination in this ingredient as the same shall be examined while considering the question of liability of the accused in favour of the complainant against the cheque in question . While appreciating the second ingredient, the court is to examine the filing of the complaint within limitation for the purpose of U/s 138 Negotiable Instruments Act and there is no material or defence in this light to raise any doubts or aspersions on this aspect under consideration. It is, therefore, held that the complaint has been filed within limitation from the date of issuance of cheque and from cause of action arising after non­payment by the accused during notice period after service of legal notice dt. 30.12.05 upon him.

14. The court shall also examine the fourth ingredient regarding the service of legal demand notice on the accused and his failure to pay the said amount within 15 days from such demand notice as this ingredient requires shorter discussion and can be adjudicated alongwith the aforesaid ingredient without unnecessary delay. It is the case of the complainant that the legal notice dt. 30.12.05 tendered on record as Ex. CW1/3 was issued against the accused vide registered cover and UPC, postal receipt of which are Ex. CW1/4 & Ex. CW1/5. The registered cover which has been -: 18 :- returned unserved has been tendered as Ex. CW1/6. It the case of the complainant that the legal notice has been duly served upon the accused through UPC. As such, the accused has not admitted or denied the service of legal notice but has outrightly denied his liability against the cheque in question which shall be considered while examining the next ingredient pertaining to the liability against the cheque in question. The complainant has led his testimony as PW1/CW1 and has duly proved the legal notice and postal receipt but the complainant has not been cross­examined on the aspect of the legal notice thereby creating no defence on contradiction on record regarding the service of legal notice upon the accused. It is not the case of the complainant or the accused that any payment has been made by the accused within the notice period of legal demand notice against the cheque in question. Even the defence now has been led on record by way of examination of one sole witness is also on the aspect of absence of liability of the accused and as such, the complainant has been able to discharge the onus to prove the service of the legal demand notice against the accused by way of issuance of the same by UPC. The legal notice and the postal receipt have been duly proved on record. There is no doubt that has been created in the case of the complainant and accordingly, the fourth -: 19 :- ingredient necessary for proving the case of the complainant U/s 138 Negotiable Instruments Act stands duly proved in accordance with law.

15. The court shall now adjudicate upon the third ingredient which is the most relevant ingredient in the facts of the present case as substantial defence has been put forth by the accused regarding the absence of any liability upon him against the cheque in question. It has to be proved against the accused beyond the pales of reasonable doubt that the dishonoured cheque Ex.CW1/1 was issued in due discharged of legally enforceable liability by the drawer/accused. It has already been discussed above and shall be discussed at length herein regarding the existence of presumption U/s 139 Negotiable Instruments Act read with section 118 of the Act whereby the law presumes the existence of liability to the extent of amount of cheque against the executor of the cheque in favour of the holder in due course of the cheque. Under this special enactment U/s 138 Negotiable Instruments Act, the onus to put a probable defence which may be sufficient to create a doubt or put a dent in the case of the complainant lies upon the accused.

16. It has been held in 2001 (2) Apex Decision ( criminal ) SC 449, titled Hiten P Dalal Vs. Badrinath chatterjee. -: 20 :-

"presumption u/s 139 Negotiable Instruments Act is to be rebutted by proof and not by bare explanation which is merely plausible.
The fact is said to be proved when its existence is established or when upon the material before it, the court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provisions can not be said to be rebutted."

17. It has, therefore, been laid down by Hon'ble Supreme Court in the cited authority that the accused had the onus to rebut the presumption U/s 138 Negotiable Instruments Act read with section Section 118 of the Act by putting a probable proof that was sufficient to create a doubt regarding the issuance of cheque against the legally enforceable liability. It is suffice for the accused to discharge the onus to rebut the presumption by putting forth a plausible defence by way of reliable proof. The Hon'ble Supreme Court of India has further laid down the law on this aspect in M.S Narain Menon @ Mani -: 21 :- Vs. State of Kerala & Anr., 2006 III A (Crl.) (SC) 1. It has been held by Hon'ble Supreme Court of India in the aforecited landmark authority that for rebutting the presumption of law, the standard of proof that was required by the accused was only to raise a probable defence, so as to discharge the initial onus to prove. It has been laid down that the accused was not required to disprove the case of the complainant /prosecution. The Hon'ble Supreme Court discussed at length the relevant provisions under the law and law laid down by various courts till then. It has been, therefore, held as law of the land " that for rebutting some presumption, it is needed to be raised by a probable defence." It has been further held that the standard of proof for raising a probable defence is "preponderance of probabilities" which can be drawn not only by bringing the material on record but also by reference to the circumstances.

18. The Hon'ble Supreme Court of India in Krishna Janaradan Bhatt Vs. Datta Traya G. Hegde; 2008 ( 4) SCC­ 54: 2008 AIR (SC) 1325, has further reaffirmed the legal preposition and law of the land that the accused is required to rebut a presumption of existing liability as per section 139 of Negotiable Instruments Act by way of putting such evidence to the extent of preponderance of probabilities.

19. In the present case, the complainant has duly -: 22 :- proved the valid cheque Ex. CW1/1 as per applicable law and the execution of the same also has been duly proved in favour of the complainant and against the accused. It also stands duly proved beyond the pales of reasonable doubt that the accused himself issued the cheque in question and gave the same to the complainant voluntarily. However, it is the defence put forth by the accused that there was no such liability to the tune of Rs. 3,50,000/­ towards the complainant against any friendly loan or any loan whatsoever taken by the accused from the complainant. It the case of the complainant that the accused requested for a loan of Rs. 3,50,000/­ on friendly terms without any interest from the complainant for a short term which the complainant agreed to pay. It is the case of the complainant that this amount was paid by the complainant in cash and that in order to discharge his liability, accused issued a cheque which is the cheque in question as Ex. CW1/1 in favour of the complainant. It is an admitted case on record that this cheque has been dishonoured on presentation. The complainant has duly testified in consonance with the averments in his complaint in chief examination and has duly proved on record the necessary documents in support of its case. The complainant has been cross­examined in detail regarding his economic condition and capacity to give the -: 23 :- loan of Rs. 3,50,000/­ to the accused or not. During cross­ examination, the complainant has explained that he collected the loan amount from agriculture income and that the same amount was lying at his residence. The complainant has been cross­examined regarding the issuance of any receipt, pronote, presence of any witness or writing of any documents of security against the loan allegedly given to the accused, at the time of giving the loan by the complainant to the accused. The complainant has denied the above suggestion and has deposed that no one was present at the time of giving the loan to the accused and could not recall the period when the loan was given but deposed that the same was given to the accused may be in the year 2000. During further cross­examination, the complainant has deposed that the loan amount was given in installments to the accused thereby introducing a new averments / deposition for the first time in the present case. It has been testified by the complainant that the accused used to get the loan from the complainant as per his needs but further deposes that he could not remember the date, time , month and the year when this loan installments were given to the accused and also could not tell as to when the repayment of the same was demanded for the accused. The complainant has thereafter been cross­examined regarding his involvement -: 24 :- in business of selling vegetables in APMC , Delhi which has been admitted during cross­examination by the complainant. The complainant has, however, denied that he was ever engaged in such business in partnership with the accused. The complainant denied the suggestion that the cheque in question was given as a security by the accused for doing the business of vegetables selling. The complainant has deposed that he was working as a Gateman in APMC Delhi but denied the suggestions that since he could not actively participate in the business, he was working with the accused who was a active partner in the business. The complainant during cross­ examination has deposed that he had obtained the loan for purchasing the tractor and this loan amount was given by him to the accused hereby incorporating an entirely new case from his complaint and chief examination.

20. The court has also examined the statement of accused U/s 313 Cr.P.C. wherein the accused has categorically denied any liability against the cheque in question and has put forth his defence regarding existence of a partnership in the business of the vegetables selling with the complainant being a passive partner and accused being an active partner in the business. It is the case of the accused that a blank cheque was given by him to the complainant to make payment for -: 25 :- purchasing of vegetables . The defence witness/DW1 examined on behalf of the accused has testified that he was working as a Commission Agent in the firm dealing in vegetables business at Azadpur, Delhi. One copy of the document purporting to be a bill has been tendered as Mark "A. DW1 has testified that both the complainant and the accused used to come to this firm for selling the vegetables on alternate days. DW1 has explained that he could not produce the original cash book receipt as the same has been destroyed and , therefore, he has produced the copy of the bill Mark"A". In this regard, it shall be relevant to observe that no permission of the court to lead secondary evidence in absence of the availability of the original document has been obtained and, therefore, the court can not consider Mark "A" as the relevant document for the purpose of proving the document itself. Nevertheless, the court is duly empowered to consider the entire circumstances leading to the relevant facts whereby DW1 has deposed that both the complainant and the accused used to contact the firm in which he was a Commission Agent at Azadpur, Delhi. The court has also duly considered that despite opportunity, the witness DW1 has not been cross­examined on behalf of the complainant, therefore, the testimony of DW1 has been duly proved on record as unchallenged and unrebutted. Even otherwise, as -: 26 :- discussed above, the accused is not required to tender any conclusive evidence but is only required to rebut the presumption of law against him by discharging the onus to prove such probable defence which by virtue of standard of proof of preponderance of probabilities may be considered probable and possible. If the accused is able to put forth such extent of probable defence evidence, it shall suffice to demolish the presumption raised U/s 139 read with section 118 of the Act in favour of the existence of a legally enforceable liability against the dishonoured cheque. The accused has been able to successfully discharge this onus imposed upon him by creating sufficient dents and doubts in the case of complainant and by putting such probable possibilities contrary to the existence of liability against the accused. The case of the complainant itself has been engulfed in clouds of doubts regarding giving away of the alleged loan of Rs.3,50,000/­ in one go to the accused as per averments in the complaint on 20.03.05. During cross­examination, the complainant has raised doubts over the averements in the complaint by stating in the deposition that the amount of loan was given by him in installments to the accused. During cross­ examination,the complainant has further deposed that the loan amount given to the accused against the cheque in -: 27 :- question was collected by him from the agriculture income and at other point during further cross­examination, has deposed that he had obtained a bank loan for purchasing a tractor and that it was this amount which was given by him to the accused for loan. After due consideration of the entirety of the facts, the court is persuaded and convinced with the contention of ld. Counsel for accused that it can not be believed that the complainant would pay interest to the bank against the loan obtained by him against a tractor but would not stipulate or demand the same from the accused.

21. In light of the entirety of discussion hereinabove, the court is of the considered view that the accused has been successful in putting forth the probable defence thereby challenging the case of the complainant by creating sufficient doubts that raise reasonable doubts in the case of the complainant in regard to the third ingredients under discussion.

22. Accordingly, the complainant has not been able to prove the last and one of the most essential ingredient in order to bring home the conviction of the accused U/s 138 Negotiable Instruments Act . In light of the foregoing reasons and discussion above, the accused is entitled to benefit of reasonable doubt as the complainant has failed to prove the -: 28 :- guilt of the accused U/s 138 Negotiable Instruments Act beyond the pales of reasonable doubts. Accordingly, accused is acquitted of charges U/s 138 Negotiable Instruments Act. Bail bond cancelled. Surety bond discharged. Endorsement if any, also cancelled. File be consigned to record room after due completion.

ANNOUNCED IN OPEN COURT TODAY i.e. 30.11.2009.

( PREETI AGRAWAL GUPTA ) Senior Civil Judge­cum­Rent Controller (North­West), Rohini, Delhi.

-: 29 :-

CC No. 1693/09.

30.11.09: 

Present:    Complainant in person.
            Accused in person.

Vide separate judgment dictated and announced in the open court today, it has been held that complainant has not been able to prove the guilt of offence U/s 138 Negotiable Instruments Act. Accordingly, accused has been acquitted of charge U/s 138 Negotiable Instruments Act. Bail Bond cancelled. Surety discharged. Endorsement, if any, also cancelled. File be consigned to record room.

( Preeti Agrawal Gupta ) SCJ­cum­RC(NW) ROHINI, DELHI.

30.11.2009