Delhi District Court
S.S. Malhotra vs . on 30 May, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE (NI ACT) DIGITAL
COURT-06
(SOUTH-WEST), DWARKA COURTS, NEW DELHI
PRESIDED BY : SH. MANUJ KAUSHAL
CC No. 18599/2021
S.S. Malhotra
Vs. Sudhir Kumar
Under Section: 138 NI Act
CNR No. DLSW020402022021
Date of reserving : 16.05.2023
Date of pronouncement : 30.05.2023
JUDGMENT
a) Date of Institution of Complaint 01.09.2021
b) Name, parentage and address of the Sh. Sudhir Kumar, accused S/o Late Sh. Narender Singh R/o K-1, Extention, 101, Mohan Garden, Uttam Nagar, New Delhi-110059
c) Offence complained of U/s 138 NI Act.
d) Plea of the accused Pleaded not guilty
e) Final order Convicted
f) Date of final order 30.05.2023
CC NI ACT 18599/2021 S.S. Malhotra Page No . 1 Of 20
Vs.
Digitally signed
Sudhir Kumar
MANUJ by MANUJ
KAUSHAL
KAUSHAL Date: 2023.05.30
15:25:06 +05'30'
JUDGMENT
BRIEF REASONS FOR THE JUDGMENT
1. Complainant' s Case
1.1 Briefly stated, it is the complainant's case that the complainant that the
complainant had advanced a friendly loan of Rs 10,00,000/- (Rupees Ten Lac Only) to the accused at a monthly interest of 2 % per month. It is stated that to secure the said amount, the accused had executed an unregistered mortgage deed and also deposited title documents of the built up second floor, Plot No. 83/13, 76 square yards, Khasra No. 65/19, Village Hatsal, Delhi, now known as Pratap Nagar, Mohan Garden, Uttam Nagar, New Delhi-110059. It is the complainant's case that in order to repay the aforesaid loan amount the accused issued two cheques bearing No.934299 dated 25.01.2020 for Rs 5,00,000 and cheque bearing No. 934300 dated 23.01.2020 for Rs 5,00,000/- both drawn on Corporation Bank, Janakpuri Branch, New Delhi. 1.2 Upon presentment, the said cheques were dishonoured with remarks "Funds Insufficient " vide memos dated 06.02.2020. 1.3 In light of the above, the complainant was constrained to issue a legal demand notice dated 14.02.2020 to the accused, calling upon the accused to repay the amount due under the cheque in question. Since the accused failed to repay the CC NI ACT 18599/2021 S.S. Malhotra Page No . 2 Of 20 Vs. Sudhir Kumar MANUJ Digitally signed by MANUJ KAUSHAL KAUSHAL Date: 2023.05.30 15:25:18 +05'30' amount within the statutory period therefore, the present complaint U/s 138 of The Negotiable Instruments Act, 1881 (hereinafter NI Act) has come to be filed.
2. Accused's Defence 2.1 On finding a prima facie case, the accused was summoned to face the trial. The accused entered appearance and a notice u/s 251 of Criminal Procedure Code, 1973 (hereinafter Cr.P.C) was served upon the accused. The accused pleaded not guilty and claimed trial. The plea of the defence of the accused was also recorded. 2.2 In his defence recorded U/s 251 Cr.P.C, the accused had stated that he had approached the complainant for obtaining a friendly loan of Rs 3,00,000/- in the year of 2014. It was further stated that at the time of advancing the loan the complainant had asked the accused to sign some blank papers and give blank security cheques. It was further stated the complainant gave a loan of Rs 2,00,000/- to the accused on the same day which was repaid by the accused. The accused finally stated that the present case has been filed by the complainant to harass him.
The accused had admitted his signatures on the cheques in question however, the accused had denied filling up any particulars on the cheque in question. The accused had further stated that he did not receive the legal demand notice.
Admission and denial of the accused U/s 294 Cr.P.C was also conducted wherein the accused had admitted the genuineness and correctness of the cheque in question (Ex. CW-1/C and Ex. CW-1/D). The accused had further admitted the genuineness and correctness of the return memos (Ex. CW-1/E and Ex. CW-1/F).
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Sudhir Kumar MANUJ Digitally signed by
MANUJ KAUSHAL
KAUSHAL Date: 2023.05.30
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2.3 After the complainant's evidence, the accused was examined under
Section 313 Cr.P.C r/w Section 281 Cr.P.C by putting all the incriminating evidence and circumstances to him. His statement was recorded. The accused in his statement has stated that he does not know the complainant and has not done any transaction with the complainant. It was further stated that the cheques in question were given as blank signed security cheque to Satish kumar Punia who had given two lakh rupees to the accused. It was further stated that the accused is not aware as to how the complainant has received the cheques in question. The accused has stated the dishonour of the cheque to be matter of record. The accused has again denied the receipt of legal demand notice.
3. ARGUMENTS 3.1 It has been argued by the Ld. counsel for the complainant that all the ingredients of the offence are fulfilled in the present case and the complainant has duly proved his case. Ld. Counsel submits that the accused has admitted his signatures on the cheque in question therefore, presumptions enshrined under Section 139 and Section 118 of the Negotiable Instruments Act, 1881 arise against the accused which the accused has miserably failed to rebut. Ld. Counsel further submits that the accused has raised a sham defence of security cheque. As such, it is prayed that the accused be punished for the said offence. 3.2 Per contra, Ld. counsel for the accused has argued that the cheque in question was handed over to the complainant as a security cheque which has been CC NI ACT 18599/2021 S.S. Malhotra Page No . 4 Of 20 Vs. Sudhir Kumar MANUJ Digitally by MANUJ signed KAUSHA KAUSHAL Date: 2023.05.30 L 15:25:35 +05'30' misused by the complainant. Ld. Counsel for the accused has argued that the accused has already repaid the loan amount to the complainant. It is further argued that the accused side has been able to rebut the presumptions raised u/s 139 and Section 118 of the Negotiable Instruments Act, 1881 as the accused has been able to bring forth several material contradictions in the testimony of the accused. Accordingly, it is prayed that the accused be acquitted in the present case.
4. Applicable Legal Provisions:
4.1 The ingredients which are required to be satisfied for bringing home the culpability under Sec. 138 of Negotiable Instrument Act has been expounded by the Hon'ble Apex court in the case of Kusum Ingots & Alloys Ltd. vs. Pennar Peterson Securities Ltd. And Others (2000) 2 SCC 745; the same is reproduced below:
"(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 from the date on which it is drawn of within the period of its validity whichever is earlier;
(iii) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
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(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 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;"
The accused can only be held guilty of the offence under Section 138 NI Act if the above-mentioned ingredients are proved by the complainant co-extensively. This being the legal position, let us proceed to examine the factual matrix on the aforesaid legal touchstone.
5. Appreciation of Evidence and Marshalling of the Facts:
5.1 Issuance of Cheque The burden of proving the issuance of the cheque in the favour of the complainant from an account maintained by the accused rests upon the complainant.
In order to prove this, the complainant as CW-1 has stated in his affidavit (Ex. CW- 1/1) that the cheques in question were given by the accused towards the repayment of the loan amount. The accused in the notice put to him U/s 251 Cr.P.C has admitted to having given the cheques in question as security cheques to the complainant. Accused has further admitted his signatures on the cheques in question. In the admission and denial U/s 294 Cr.P.C accused has admitted the genuineness and correctness of the CC NI ACT 18599/2021 S.S. Malhotra Page No . 6 Of 20 Vs. Sudhir Kumar MANUJ Digitally signed by MANUJ KAUSHAL KAUSHAL Date: 2023.05.30 15:25:53 +05'30' cheques in question. The accused however, in his statement U/s 313 R/w 281 Cr.P.C has stated that the cheques in question were given to Satish Kumar Punia as blank signed security cheques and that he does not know how the complainant has obtained the cheques. In the cross-examination of the complainant as CW-1, however no suggestion to this effect has been put by the accused side to the complainant. Further, the complainant in his cross-examination as CW-1 dated 19.10.2022 has specifically stated that the cheques in question were given by the accused to him in 2016 approximately in presence of Mr. Satish and Ms. Seema. No evidence to the contrary has been led by the accused.
In view of the above observations, this Court is of the opinion that the complainant has been able to discharge the initial burden of proving that the cheque in question has been issued on an account maintained by the accused. 5.2 Presentment and dishonour of the cheque After having discharged the burden of proving the issuance of cheque the complainant was required to prove that the cheque was presented within the statutory period and was returned unpaid by the banker. To this effect, Complainant as CW-1 through his affidavit (Ex. CW-1/1) has deposed that cheques in dispute were presented for encashment but the same was dishonoured due to reasons "insufficient funds". In order to evince the veracity of his deposition CW-1 has brought on record Original cheques (Ex. CW-1/C) and (Ex. CW-1/D) and original return memos dated 06.02.2020 showing the dishonour of cheques due to funds insufficient(Ex. CW-1/E ) CC NI ACT 18599/2021 S.S. Malhotra Page No . 7 Of 20 Vs. Sudhir Kumar MANUJ Digitally signed by MANUJ KAUSHAL KAUSHAL Date: 2023.05.30 15:26:01 +05'30' and (Ex. CW-1/F). The accused has admitted the genuineness and correctness of the dishonour memos in the statement recorded U/s 294 Cr.P.C. Thus, the presentment and the subsequent dishonour of cheque stands established. Further, the cheques (Ex. CW-1/C) and (Ex. CW-1/D) are dated 25.01.2020 and 23.01.2020 and is returned unpaid on 06.02.2020, which is well within the statutorily period prescribed U/s 138 NI Act. Hence, the presentment and dishonour of the cheque stands proved. 5.3 Legal Demand Notice 5.3.1 The next ingredient which the complainant is required to prove in order to bring home the offence U/s 138 N I Act is that a demand notice, in writing, was served upon the accused within 30 days from the date on which the complainant received the information that the cheque was returned unpaid by the banker of the complainant. In this regard, CW-1 deposing through his affidavit (Ex-CW1/1) has brought on record the demand notice dated 14.02.2020 (Ex-CW 1/G) and postal receipts (Ex-CW1/H) and (Ex-CW1/I).
5.3.2 The accused has denied the receipt of legal demand notice in the notice put to him U/s 251 Cr.P.C. and in his statement U/s 313 Cr.P.C R/w 281 Cr.P.C. However, on a perusal of the record it is observed that in the bail bonds furnished by the accused as well as in the notice put to the accused U/s 251 Cr.P.C, the accused has stated his address to be the same address on which legal demand notice has been sent to the accused. In the given circumstances, the fact that a correctly addressed legal demand notice was sent to the accused stands established. Once the aforesaid fact CC NI ACT 18599/2021 S.S. Malhotra Page No . 8 Of 20 Vs. Sudhir Kumar MANUJ Digitally signed by MANUJ KAUSHAL KAUSHAL Date: 2023.05.30 15:26:11 +05'30' stands established the Judgment of Hon'ble Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555 comes into effect wherein it was held as under:
14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed. (Vide Jagdish Singh v.Natthu Singh [(1992) 1 SCC 647 : AIR 1992 SC 1604] ; State of M.P.\v.Hiralal[(1996) 7 SCC 523] andV. Raja Kumariv. P. Subbarama Naidu [(2004) 8 SCC 774 : 2005 SCC (Cri) 393] .) It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved.
17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the CC NI ACT 18599/2021 S.S. Malhotra Page No . 9 Of 20 Vs. Sudhir Kumar MANUJ Digitally signed by MANUJ KAUSHAL KAUSHAL Date: 2023.05.30 15:26:20 +05'30' court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed inBhaskaran case[(1999) 7 SCC 510 : 1999 SCC (Cri) 1284] if the "giving of notice" in the context of Clause (b) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act.
In view of the aforesaid settled legal position, once it is established that a properly addressed legal demand notice is sent to the accused then the presumptions enshrined under section 114 of Indian Evidence Act and Section 27 of the General Clauses Act would arise and a rebuttable presumption of service would arise against the accused. Nothing has been brought on record by the accused to rebut the presumption. Therefore, in the light of C.C. Alavi Haji judgment (Supra) the accused cannot contend that he has not received the notice.
In the given circumstances, this Court is of the opinion that the complainant has been able to prove that a legal demand notice in writing CC NI ACT 18599/2021 S.S. Malhotra Page No . 10 Of 20 Vs. Sudhir Kumar MANUJ Digitally signed by MANUJ KAUSHAL KAUSHAL Date: 2023.05.30 15:26:31 +05'30' was sent to the accused within 30 days from the date of receipt of information regarding the dishonour of the cheque in question and the accused has received the same.
5.4 Existence of any debt or other liability 5.4.1 Since the accused has admitted his signatures on the impugned cheques in his plea of defence the only question which is required to be decided is whether the impugned cheque was given in discharge of a legally enforceable debt or liability. 5.4.2 To examine this, let us again recapitulate that the accused has not disputed that the cheques in question has been drawn upon a bank account maintained by him. He has also admitted his signatures on the cheques in question. Under the NI Act, once the accused admits drawing of the cheque, certain presumptions are drawn against him which results in shifting of onus. Section 118(a) of the NI Act lays down the presumption that every negotiable instrument was made or drawn for consideration. Further, Section 139 of NI Act lays down the presumption that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability. The combined effect of these two provisions is a presumption that the cheque was drawn for consideration and given by the accused for the discharge of debt or other liability. Both the sections use the expression "shall", which makes it imperative for the court to raise the presumptions, once the foundational facts required for the same are proved {Refer Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16}.
CC NI ACT 18599/2021 S.S. Malhotra Page No . 11 Of 20 Vs. Sudhir Kumar MANUJ Digitally signed by MANUJ KAUSHAL KAUSHAL Date: 2023.05.30 15:26:42 +05'30' 5.4.3 Moreover, it has been held by a three-judge bench of the Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption contemplated under Section 139 of NI Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence. The principles pertaining to the presumptions and the onus of proof were summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 as under:
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner:
25.1. 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.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the 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 CC NI ACT 18599/2021 S.S. Malhotra Page No . 12 Of 20 Vs. Sudhir Kumar MANUJ Digitally signed by MANUJ KAUSHAL KAUSHAL Date: 2023.05.30 15:26:55 +05'30' drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
25.4. 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.
25.5. It is not necessary for the accused to come in the witness box to support his defence."
In view of the above principles, it is clear that the presumptions raised under Section 118(b) and Section 139 NI Act are rebuttable presumptions. A reverse onus is cast on the accused, who has to establish a probable defence on the standard of preponderance of probabilities to prove that there was no legally enforceable debt or other liability. While adjudging whether in a case the presumption of consideration has been rebutted, it becomes important to underscore that a mere denial of liability or vague defence cannot be taken at the mere ipse dixit of the accused. The accused has to come forth with a convincing defence that appeals to the judicial conscience. Only in a case where the accused comes up with a convincing defence to liability, that the presumption can be stated to have been rebutted, lest the statutory intent as adumbrated above would be the direct casualty.
5.4.4 The aforesaid judgement of Hon'ble Supreme Court in Basalingappa vs. Mudibasappa (Supra) further clarifies that the accused is not required to step into the CC NI ACT 18599/2021 S.S. Malhotra Page No . 13 Of 20 Vs. Sudhir Kumar MANUJ Digitally signed by MANUJ KAUSHAL KAUSHAL Date: 2023.05.30 15:27:06 +05'30' witness box or lead any defence evidence to rebut the presumption raised against him and the accused may rely upon the complainant's evidence and documents for the same. This being the legal position let us proceed to examine as to whether the accused has been able to rebut the presumption raised under Section 118 and Section 139 NI Act.
5.4.5 In the present case the accused in his plea of defence has stated that he had approached the complainant for a loan of Rs 3,00,000/- in the year 2014. The accused has further stated that at the time of advancing the loan, the complainant had asked him to sign some blank papers and give blank security cheques to the complainant. The accused has further stated that the complainant only advanced a loan of Rs 2,00,000/- to him which has already been repaid by him. In order to prove his defence the accused has only cross-examined the complainant and has not brought any other piece of evidence. This being the defence and contention of the accused side let us proceed to examine whether the accused has been able to disprove the case of the complainant.
5.4.6 In his evidence by affidavit (Ex. CW-1/1) the complainant has stated that the accused had taken a friendly loan of Rs 10,00,000/- from the complainant at an interest of 2% per month and had executed an unregistered mortgage deed by deposit of title deeds. However, in his cross-examination as CW-1 the complainant has stated that "the money was advanced for the purpose of buying a floor in a building. It is wrong to suggest that I mentioned in the complaint that the money was given as a CC NI ACT 18599/2021 S.S. Malhotra Page No . 14 Of 20 Vs. Sudhir Kumar MANUJ Digitally signed by MANUJ KAUSHAL KAUSHAL Date: 2023.05.30 15:27:17 +05'30' loan on an interest". On being confronted with the complaint the complainant had stated that "initially money was advanced on an interest, however, later on accused had agreed to give me a floor in building". The complainant had again in his cross- examination dated 19.10.2022 stated that "The amount in question was advanced to the accused for purchasing a floor and the aforesaid amount was not given as a loan to the accused." It was further stated by the complainant that "I had not taken papers exhibited as Ex. CW-1/B (Colly) as a security.". Before proceeding to decide the effect of these contradictions on the case of the complainant this Court has to be mindful of the settled law that once the presumptions U/s 139 and Section 118 of NI Act are raised the burden of proving non-existence of legally enforceable debt or liability rests upon the accused. In the case at hand although there are inconsistencies in the testimony of the complainant as to the nature of the transaction however, the complainant has been consistent that he has advanced a sum of Rs 10,00,000/- to the accused. The complainant has further denied the suggestion of the accused side that the accused had only taken a loan of Rs 2,00,000/- from the accused. Nothing further has been brought on record by the accused side to substantiate their defence. The complainant in his cross-examination has categorically stated that "I advanced a sum of Rs 10,00,000/- to the accused. The money was advanced in presence of Mrs. Seema and Mr Satish". No suggestion has been put by the accused side to deny the receipt of the aforesaid money. Further, no suggestion has been put by the accused side to deny the receipt of the aforesaid money in the presence of Mr. Satish.
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Therefore, the fact that the complainant has advanced a sum of Rs 10,00,000/- to the accused is unrebutted. The accused has not brought any evidence to suggest that he has already discharged the aforesaid liability or that he has already transferred the alleged property to the complainant.
5.4.7 At this stage, this Court deems it relevant to refer to the stand taken by the accused in his Statement U/s 313 Cr.P.C . The accused in his statement has denied knowing the complainant and has further denied having any transaction with the complainant. The accused has further stated that he had given the cheques in question as security cheques to Satish Kumar Punia from whom he had taken a loan of Rs 2,00,000/-. It was further stated that the accused does not know how the complainant has received the cheques in question. Before proceeding to decide the evidentiary value of the aforesaid defence this Court deems it fit to reproduce the Law related to Section 313 Cr.P.C which was recently summarized by Hon'ble Supreme Court in Premchand v. State of Maharashtra, 2023 SCC OnLine SC 218 wherein it was observed as under:
15.What follows from these authorities may briefly be summarized thus:
a. section 313,Cr. P.C. [clause (b) of sub-section 1] is a valuable safeguard in the trial process for the accused to establish his innocence; b. section 313, which is intended to ensure a direct dialogue between the court and the accused, casts a mandatory duty on the court to question the accused generally on the case for the purpose of enabling him to personally explain any circumstances appearing in the evidence against him;
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c. when questioned, the accused may not admit his involvement at all and choose to flatly deny or outrightly repudiate whatever is put to him by the court;
d. the accused may even admit or own incriminating circumstances adduced against him to adopt legally recognized defences; e. an accused can make a statement without fear of being cross-examined by the prosecution or the latter having any right to cross-examine him; f. the explanations that an accused may furnish cannot be considered in isolation but has to be considered in conjunction with the evidence adduced by the prosecution and, therefore, no conviction can be premised solely on the basis of the section 313 statement(s);
g. statements of the accused in course of examination under section 313, since not on oath, do not constitute evidence under section 3 of the Evidence Act, yet, the answers given are relevant for finding the truth and examining the veracity of the prosecution case;
h. statement(s) of the accused cannot be dissected to rely on the inculpatory part and ignore the exculpatory part and has/have to be read in the whole, inter alia, to test the authenticity of the exculpatory nature of admission; and i. if the accused takes a defence and proffers any alternate version of events or interpretation, the court has to carefully analyze and consider his statements; j. any failure to consider the accused's explanation of incriminating circumstances, in a given case, may vitiate the trial and/or endanger the conviction 5.4.8 The evidentiary value of defence taken by accused in his statement U/s 313 Cr.P.C was discussed by Hon'ble Delhi High Court in V.S. Yadav vs. Reena (2010) 172 DLT 561 wherein Hon'ble Delhi High Court has clarified the scope of the Statement of the accused U/s 313 R/w 281 Cr.P.C. Hon'ble Court in Para 6 of the judgment observed as follows:
6. It must be borne in mind that the statement of accused under Section 281, Cr.P.C. or under Section 313, Cr.P.C. is not the evidence of the accused and CC NI ACT 18599/2021 S.S. Malhotra Page No . 17 Of 20 Vs. Sudhir Kumar MANUJ Digitally signed by MANUJ KAUSHAL KAUSHAL Date: 2023.05.30 15:27:56 +05'30' it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under Section 281, Cr.P.C. or 313, Cr.P.C. cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful. In the present case, the accused in his statement stated that he had given cheques as security. If the accused wanted to prove this, he was supposed to appear in the witness box and testify and get himself subjected to cross examination. His explanation that he had the cheques as security for taking loan from the complainant but no loan was given should not have been considered by the Trial Court as his evidence and this was liable to be rejected since the accused did not appear in the witness box to dispel the presumption that the cheques were issued as security. Mere suggestion to the witness that cheques were issued as security or mere explanation given in the statement of accused under Section 281, Cr.P.C, that the cheques were issued as security, does not amount to proof. Moreover, the Trial Court seemed to be obsessed with idea of proof beyond reasonable doubt forgetting that offence under Section 138 of N.I. Act was a technical offence and the complainant is only supposed to prove that the cheques issued by the respondent were dishonoured, his statement that cheques were issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the respondent/accused to show the circumstances under which the cheques came to be issued and this could be proved by the respondent only by way of evidence and not by leading no evidence. 5.4.9 This being the settled legal position, let us proceed to examine the statement of the accused in conjunction with the material available on record. The accused has taken different defences in the notice put to him U/s 251 Cr.P.C and his Statement U/s 313 Cr.P.C. While in his notice the accused had admitted to knowing the complainant however, in his Statement U/s 313 Cr.P.C the accused has outrightly denied knowing the complainant. Further, the accused is his notice U/s 251 Cr.P.C had admitted to having taken a loan of Rs 2,00,000/- from the complainant and giving security cheques to the complainant however, the accused in his Statement U/s 313 CC NI ACT 18599/2021 S.S. Malhotra Page No . 18 Of 20 Vs. Sudhir Kumar MANUJ Digitally signed by MANUJ KAUSHAL KAUSHAL Date: 2023.05.30 15:28:10 +05'30' has denied to having any transaction with the complainant and has stated that he had taken a loan of Rs 2,00,000/- from Satish Kumar Punia to whom he had given the cheques in question. Nothing has been brought in evidence by the accused to substantiate either of the defences. The accused side has merely put suggestions to the complainant which have been squarely denied by the complainant. 5.4.10 Even the suggestions given by the accused side to the complainant are contradictory to both the defences taken by the accused. In the cross-examination of the complainant dated 25.04.2022, Ld. Counsel for the accused has suggested that money was only exchanged between the complainant and Satish Punia and the accused had no role to play in aforesaid transaction. This suggestion has been denied by the complainant. However, in the cross-examination dated 19.10.2022 Ld. Counsel for the accused had suggested that the accused had only taken a loan of Rs 2,00,000/- from the complainant. Therefore, it is clear that the accused has taken wavering defences during the trial and has not been consistent in his defence. 5.4.11 Moreover, from the statement of the accused U/s 313 Cr.P.C and the suggestions put by the accused in the cross-examination of the complainant as CW-1 it is apparent that Mr. Satish Kumar Punia was an important witness to be examined to prove the defence of the accused however, the accused has failed to lead any defence evidence. Further, the accused has failed to take any action against the complainant for misuser of the cheques in question. In the given circumstances, this CC NI ACT 18599/2021 S.S. Malhotra Page No . 19 Of 20 Vs. Sudhir Kumar MANUJ Digitally signed by MANUJ KAUSHAL KAUSHAL Date: 2023.05.30 15:28:21 +05'30' Court is of the opinion that the accused has failed to prove his defence on the basis of preponderance of probabilities.
5.4.12 In view of the foregoing discussion, this Court is of the opinion that the accused has not been able to rebut the presumption raised against him and the complainant has established there case beyond reasonable doubt.
6. Conclusion 6.1 Hence, in the light of above discussion, it comes out that the complainant has successfully proved his case beyond all the reasonable doubts and accused has failed to rebut the presumption. Accordingly, accused stands convicted for the offence under Section 138 of Negotiable Instruments Act.
6.2 Let the accused be heard on quantum of sentence on 23.06.2023
6.3 Copy of the judgment be supplied to convicted persons or their counsel free of
cost. MANUJ Digitally signed by
MANUJ KAUSHAL
KAUSHAL Date: 2023.05.30
15:28:34 +05'30'
(MANUJ KAUSHAL)
MM (NI ACT)/DIGITAL COURT-06,
SOUTH WEST, DWARKA COURT,
NEW DELHI/30.05.2023
Certified that this judgment contains 20 pages and each page bears my digital signature.
MANUJ Digitally signed by MANUJ KAUSHAL KAUSHAL Date: 2023.05.30 15:28:51 +05'30' (MANUJ KAUSHAL) MM (NI ACT)/DIGITAL COURT-06, SOUTH WEST, DWARKA COURT, NEW DELHI/30.05.2023 CC NI ACT 18599/2021 S.S. Malhotra Page No . 20 Of 20 Vs. Sudhir Kumar