Delhi District Court
Ashok Kumar Singhal vs . Prabhakar Kumar Shaw Cc No. 12043/2019 ... on 30 January, 2023
IN THE COURT OF MS. PRIYA JANGHU,
METROPOLITAN MAGISTRATE, SOUTH-WEST,
DWARKA, DELHI
In Re:
CNR No. DLSW02- 016003-2019
CC No. 12043/2019
Sh Ashok Kumar Singhal
S/o Late Sh. M.C.Singhal
Vidhyasagar Apartment,
Plot No. 34, Flat No.31, Sector 6,
Dwarka, New Delhi-110075. ......... Complainant
Versus
Sh.Prabhakar Kumar Shaw
RZ C-29, C block
Sitapuri Ext Part-I,
Palam Village S.O
New Delhi-110045 .......... Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
(3) Date of institution of case : 17.12.2014
(received by
way of
transfer on
05.04.2019)
(4) Date of conclusion of
arguments : 23.12.2022
Ashok Kumar Singhal vs. Prabhakar Kumar Shaw CC No. 12043/2019 Page no. 1 of 21
(5) Date of Final Order : 30.01.2023
(6) Final Order : Convicted
JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under:-
The complainant alleges that he had cordial relations with the accused and accused has asked for financial assistance of Rs. 9,00,000/- from him to purchase a property for a period of six months. On request of accused, he gave total loan of Rs. 5,00,000/- out of which, Rs. 3,00,000/- was given to the accused and Rs. 2,00,000/- was given to the son of accused namely Chandan Kumar, against the promissory note dated 12.08.2013. It is further alleged that accused paid Rs. 1,80,000/-
in cash to the complainant and also issued a few cheques for discharge of his remaining liability of Rs. 1,20,000/-. The cheque bearing No.102060 dated 12.08.2014 amounting to Rs. 20,000/- drawn on Syndicate Bank, Community Centre, Janak Puri, New Delhi-110058 was issued to the complainant by the accused with an assurance of its encashment. The complainant presented the said cheque in his account maintained at Central Bank of India, Janak Puri, New Delhi, which on presentation was dishonoured vide return memo dated 17.09.2014 due to the reason " Funds Ashok Kumar Singhal vs. Prabhakar Kumar Shaw CC No. 12043/2019 Page no. 2 of 21 Insufficient". Thereafter, legal demand notice demanding payment of aforesaid cheque was sent to the accused through speed post dated 16.10.2014 . Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In his pre-summoning evidence, complainant examined himself on affidavit Ex. CW-1/A. He reiterated the contents of complaint and placed on record original cheque in question No. 102060 as Ex. CW-1/1, cheque returning memo dated 17.09.2014 Ex. CW1/2 and legal demand notice as Ex. CW-1/3.
4. Upon appreciation of pre-summoning evidence, accused was summoned for an offence punishable under Section 138 of the Act and notice under Section 251 Cr.P.C. for this offence was framed upon accused on 17.11.2017 to which accused pleaded not guilty and claimed trial. Accused admitted his signatures on the cheque in question and denied filling in remaining details on the cheque in question. Accused also stated that he gave cheque in question along with other cheques as security cheques which are misused by the complainant. Accused further stated that he is a fruit vendor by profession and used to take loan on daily basis @ 5 % which was repaid to the complainant . The complainant also took blank signed cheque in question along with pronote as a security. Accused has repaid the loan amount to the complainant. The said entry was made in his diary countersigned by the Ashok Kumar Singhal vs. Prabhakar Kumar Shaw CC No. 12043/2019 Page no. 3 of 21 complainant but due to demolition of his shop by the MCD, the said diary was destroyed/misplaced. Accused has also filed complaint at PS Dabri with regard to the demolition of his shop by MCD. He has also sent a legal notice to the complainant regarding returning of all the security cheques but the same were not returned by the complainant and he has misused the cheque in question in connivance with other persons. Thereafter, matter was listed for complainant evidence.
5. Complainant examined himself as CW-1 and he was duly cross-examined by ld. counsel for the accused. No other witness was produced by the complainant and he closed his evidence by giving a separate statement to this effect on 22.02.2020.
6. Thereafter, statement of accused under Section 313 Cr.P.C was recorded in which all the incriminating evidence were put to the accused separately to which accused reiterated the stand taken by him in answer to notice under Section 251 Cr.P.C. In his statement under Section 313 Cr. P.C accused stated that he has not asked for financial assistance of Rs. 9,00,000/- from the complainant to purchase a property for a period of six months. Accused also stated that he has not availed loan of Rs. 3,00,000/- from complainant and his son Chandan Kumar has also not availed loan of Rs. 2,00,000/- from complainant against promissory note dated 12.08.2013. Accused further stated that he has not repaid Rs. 1,80,000/- in cash, to the complainant in Ashok Kumar Singhal vs. Prabhakar Kumar Shaw CC No. 12043/2019 Page no. 4 of 21 lieu of loan of Rs. 3,00,000/-. Accused also admitted his signatures on the cheque in question. However, denied filling in of remaining particulars in the cheque in question. Accused has also admitted receipt of the legal notice by him. Accused further stated that he used to avail small loans in the sum of Rs. 10,000/- or Rs. 20,000/- from the complainant and used to repay the same within one month. The complainant always used to take blank signed cheques at time of loan as security and cheque in question is one such cheque. Complainant also took some blank signed papers from accused. Accused has repaid all amount to the complainant and the complainant has misused the cheque in question. Thereafter, the matter was fixed for defence evidence.
7. In his defence evidence, accused examined himself as DW-1, his son Chandan Kumar as DW-2 and one Sh Arjun Shaw as DW-3. All the said witnesses were cross-examined by ld. Counsel for complainant. Thereafter, an application under Section 311 Cr. P.C was filed on behalf of accused to re-examine himself (DW-1) and to file certain documents on record i.e certain complaints filed by accused against the complainant. Same was allowed vide order dated 18.11.2022. DW-1/accused Prabhakar Shaw was re-examined under Section 311 Cr.P.C and he has placed on record copy of complaints dated 28.03.2014, 16.07.2015, 03.11.2015, 31.01.2015 and 24.02.2014, PS Dabri vide Ex. DW-1/A, Ex. DW-1/B, Ex.DW1/C, Ex. DW-1/D and Ex. DW1/E respectively as well as legal notice dated 24.07.2014 Ashok Kumar Singhal vs. Prabhakar Kumar Shaw CC No. 12043/2019 Page no. 5 of 21 as Ex. DW-1/F. However, perusal of Ex. DW-1/C shows that it is dated 02.11.2015 and not 03.11.2015. He was duly cross- examined by ld. Counsel for complainant. Thereafter, defence evidence was closed by his separate statement vide order dated 02.12.2022 and matter was listed for final arguments.
8. It was argued by the Ld. counsel for the complainant that this is a fit case for conviction of the accused as all the essential ingredients of Section 138 of the Act read with Section 139 of the Act have been fulfilled and that the same has been aptly demonstrated by the complainant before the court. It was argued that accused admitted his signatures on the cheque in his plea of defence recorded at the time of framing of notice under Section 251 Cr.P.C as well in his statement under Section 313 Cr. P.C. It was argued that accused failed to raise the probable defence to disprove the case of complainant and to rebut presumption under Section 139 N.I.Act. Therefor, accused be convicted for the offence under Section 138 of the Act.
9. Per contra, ld. Counsel for accused reiterated the submission made by the accused in his plea of defence at the time of framing of the notice under Section 251 Cr.P.C and his statement under Section 313 Cr.P.C. He further argued that there were several discrepancies and inconsistencies in statements made by complainant which casts sufficient doubt on case of the complainant regarding giving of the loan in question to the Ashok Kumar Singhal vs. Prabhakar Kumar Shaw CC No. 12043/2019 Page no. 6 of 21 accused. He argued that evidence of complainant suffered from material lapses and was not sufficient to establish the case against accused. He submitted that complainant has failed to prove his case beyond reasonable doubt and accused is entitled to be acquitted of offence under Section 138 of Act.
10. I have perused the entire record as well as evidence led by the complainant as well as by the accused and given my thoughtful consideration to them.
11. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points, that:-
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
12. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard Ashok Kumar Singhal vs. Prabhakar Kumar Shaw CC No. 12043/2019 Page no. 7 of 21 to the passing of consideration as contained in Section 118 (a) and secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability.
Section 118 of the N.I Act provides :
"Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made: (a) of consideration - that every negotiableinstrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows:
"Presumption in favour of holder - it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability".
13. For the offence under Section 138 of the Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall be rebutted 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. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee Ashok Kumar Singhal vs. Prabhakar Kumar Shaw CC No. 12043/2019 Page no. 8 of 21 [(2001) 6 SCC 16].
14. In the present case, accused has admitted his signatures on the cheque in question, in the notice under Section 251 Cr.P.C and in his statement under Section 313 Cr.P.C. Reference can be made to Judgment of Apex Court in Rangappa v. Mohan, AIR 2010 SC 1898, that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
Also in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
15. Since the statutory presumption has been raised in favour of the complainant and the complainant has in the present case been able to prove that the cheque in question was given by the accused for the discharge of a legally recoverable debt or liability, the onus of proof shifts on to the accused to rebut the presumption.
16. It has been held in M/s. Kumar Exports v. M/s. Sharma Ashok Kumar Singhal vs. Prabhakar Kumar Shaw CC No. 12043/2019 Page no. 9 of 21 Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut these presumptions by leading direct evidence and in some and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case. In light of aforestated legal position, let us carry out a scrutiny of the evidence led at the trial.
17. In the present case, the complainant by way of an affidavit led his own evidence testifying that cheque was issued to him in discharge of liability, after he had advanced loan of Rs. 3,00,000/- to the accused. The cheque in question, dishonour memo of the cheque and legal demand notice were exhibited on record.
18. The principle defence taken by the accused as brought out from his statement under Section 313 Cr. P. C and his examination in chief as DW-1, supplemented by evidence of DW-2 and DW-3, is that he is a fruit vendor by profession and used to take small loan of Rs. 10,000/- or Rs. 20,000/- from the complainant. It is also his defence that he used to repay the said loan amount in small installments of Rs. 500/- or Rs. 1000/- or Rs.2000/-. It is also his defence that the entry regarding Ashok Kumar Singhal vs. Prabhakar Kumar Shaw CC No. 12043/2019 Page no. 10 of 21 repayment was made in his diary countersigned by the complainant but due to demolition of his shop by MCD, the said diary has been destroyed/misplaced.
19. However, perusal of evidence shows that said version of accused is not supported by any any material on record. The accused did not produce any written receipt or document regarding any repayment to the complainant. The only defence taken by the accused is that the diary in which entries of repayment was made, is lost in MCD demolition. The accused has filed complaint dated 24.02.2014, PS Dabri, Ex. DW-1/E for misplacement of his diary during MCD demolition. However, Ex. DW-1/E nowhere mentions about misplacement /destruction of any diary. It is simply a complaint against MCD demolition.
20. The cheque in question has been dishonored vide cheque returning memo dated 17.09.2014 for reason "Funds Insufficient"
(Ex. CW-1/2) and not for any other reason. There is no explanation or evidence as to why, if the cheque was not returned after repayment of entire amount of loan, stop payment instructions were not issued by accused to his bank. In light of the above, the version of accused that he used to take loan from complainant in small installments, which has been repaid, is not credible, as the same is not supported by any evidence on record.
21. Ld. counsel for accused also argued that the cheque in Ashok Kumar Singhal vs. Prabhakar Kumar Shaw CC No. 12043/2019 Page no. 11 of 21 question was given as security cheque only, and hence the same was not in discharge of any legally enforceable liability. However this argument of Ld. Counsel is bereft of any merit. In this regard, the law relating to security cheques needs to be examined. Reliance in this regard can be placed upon decision of Hon'ble High Court of Delhi in Credential Leasing & Credits Ltd. vs Shruti Investments & Anr. CRL. L.P. 558/2014, DoD 29.06.2015, wherein it was held as under:
"27. Thus, the "debt or other liability" has to be a legally enforceable debt or other liability. Neither the main provision of Section 138, nor the explanation suggest that the debt or other liability should be in existence on the date of issuance of the cheque, i.e. on the date of its delivery to the drawee or someone on his behalf or, on the date that the cheque bears. The only reference to time in the Section, is the point of time when the cheque is returned unpaid by the drawers bank.
28. In my view, therefore, the scope of Section 138 NI Act would cover cases where the ascertained and crystallised debt or other liability exists on the date that the cheque is presented, and not only to case where the debt or other liability exists on the date on which it was delivered to the seller as a post-dated cheque, or as a current cheque with credit period. The liability, though, should be in relation to the transaction in respect whereof the cheque is given, and cannot relate to some other independent liability. If, on the date that the cheque is presented, the ascertained and crystallised debt or other liability relatable to the dishonoured cheque exists, the dishonor of the cheque would invite action under Section 138 NI Act. There could be situations where, for example, an issue may be raised with regard to the quality, quantity, deficiency, specifications, etc. of the goods/services supplied, or accounting. It would have to be examined on a case to case basis, whether an ascertained or crystallised debt or other liability exists, which could be enforced by resort to Section 138 NI Act, or not."
22. The Apex Court in Sampelly Satyanarayana Rao v Indian Ashok Kumar Singhal vs. Prabhakar Kumar Shaw CC No. 12043/2019 Page no. 12 of 21 Renewable Energy Development Agency Limited, Crl App. No. 867/16, DoD 19.09.2016, also held as follows:
"We have given due consideration to the submission advanced on behalf of the appellant as well as the observations of this Court in Indus Airways (supra) with reference to the explanation to Section 138 of the Act and the expression "for discharge of any debt or other liability"
occurring in Section 138 of the Act. We are of the view that the question whether a post-dated cheque is for "discharge of debt or liability" depends on the nature of the transaction. If on the date of the cheque liability or debt exists or the amount has become legally recoverable, the Section is attracted and not otherwise."
Thus the legal position which emerges is that regard must be had to the nature of the transaction as well as whether a crystallized and ascertained debt or liability exists on the date of the cheque, and the same has to be examined on the basis of facts and circumstances of each case.
23. In the present case, the cheque in question was given to secure the repayment of loan. As discussed above, accused has failed to show any repayment of loan to the complainant or dispute the existence of liability to the tune of amount of cheque in question on the date of cheque in question. In view of the above dicta, it is clear that the cheque in question is for the crystallized and established liability, towards repayment of loan, existing on date of cheque, and the dishonor of the cheque would invite action under Section 138 NI Act. Mere submission that the cheque in question was handed as security cheque at time of taking of loan is not sufficient to rebut the statutorily presumptions.
Ashok Kumar Singhal vs. Prabhakar Kumar Shaw CC No. 12043/2019 Page no. 13 of 21
24. Regarding the averment that cheque was given as blank signed cheque which was misused by complainant after repayment of loan, the same is also not a credible defence. Even if for the sake of argument, it is considered that the accused gave a blank signed cheque to the complainant, once accused has admitted his signatures on the cheque, he cannot escape his liability on the ground that the particulars have not been filled in by him. When such a cheque containing blanks is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blank which he has left. It has been clearly laid down in Section 20 of Negotiable Instruments Act 1881, that where one person signs and delivers to another a Negotiable Instrument either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives, "prima facie authority to the holder thereof to make or complete, as the case maybe, upon it a negotiable instrument". In the case of Satish Jayantilal Shah v. Pankaj Mashruwala and Anr. 1996 Cri. L. J. 3099, it has been held that:
"no law provides that in case of any negotiable instruments entire body has to be written by maker or drawer only."
In the case of Moideen v. Johny 2006 (2) DCR 421, it has been held that when a blank cheque is issued, the drawer gives an authority to the person to whom it is issued, to fill it up at the appropriate stage with necessary entries and to present it to the bank. Thus, the accused can not dispute the contents of the Ashok Kumar Singhal vs. Prabhakar Kumar Shaw CC No. 12043/2019 Page no. 14 of 21 cheque in question.
25. The accused has also relied upon certain complaints filed by him against the complaint dated 28.03.2014 Ex. DW-1/A, complaint dated 16.07.2015 Ex. DW-1/B, complaint dated 02.11.2015 Ex. DW-1/C,complaint dated 31.01.2015 Ex. DW- 1/D , complaint dated 24.02.2014 Ex. DW-1/E and legal notice dated 24.07.2014 Ex. DW-1/F sent by the accused to the complainant . However, it is accepted by the accused in his cross- examination that Ex. DW-1/B to Ex. DW-1/D are the complaints filed by the accused after institution of the present case and therefore, same is merely an after thought of the accused and is not credible. As such, the complaints Ex. DW-1/B, Ex. DW-1/C and Ex. DW-1/E are allegedly written by the accused to SHO, PS-Dabri and Ex. DW-1/D is a complaint to DCP, South West, Dwarka. However, the same are not proved as per settled rules of evidence by summoning record clerk/police officials from the concerned police station. Ex. DW-1/A i.e a complaint dated 28.03.2014 is also not proved as per settled rules of evidence by summoning record clerk/police officials from the concerned police station. Even otherwise, a bare perusal of said complaint reveals that the accused has not disputed availing loan from the complainant. It is merely averred that complainant has not returned his cheques despite repayment and he is demanding Rs. 1,50,000/- from the accused instead of pending amount Rs. 30,000/- Rs. 40,000/-. However, accused has not filed any Ashok Kumar Singhal vs. Prabhakar Kumar Shaw CC No. 12043/2019 Page no. 15 of 21 document showing repayment of loan to the complainant.
26. The accused has also relied upon a legal notice dated 24.07.2014 sent to the complainant Ex. DW-1/F asking for return of his cheques. However, it is pertinent to note that the legal notice dated 24.07.2014 Ex. DW-1/F is sent by the accused to the complainant when he had sufficient knowledge about the dishonour of his other cheques with the complainant.
27. Also,the accused has not filed any document in his support showing the repayment done to the complainant. He has merely relied upon Ex. CW-1/D-1 showing payment of Rs. 500/- to the complainant on 09.10.2013 and point A to A-1. However, it is was stated by the complainant in his cross-examination that the payment of Rs. 500/- was made by the accused to check whether his account is genuine or not and the same was immediately returned to the accused by way of cash. Even, if the version of accused regarding repayment of Rs. 500/- made to the complainant is accepted, it is pertinent to note that the said payment was made before the date of cheque in question i.e 12.08.2014. Therefore, the same cannot be relied upon as proof of repayment of the alleged loan.
28. The accused has also examined his son Chandan Kumar as DW-2 and Arjun Shaw as DW-3 who also reiterated the version of the accused. DW-2 Chandan Kumar stated that his father i.e the accused used to avail small loan of Rs. 10,000/- or Rs.
Ashok Kumar Singhal vs. Prabhakar Kumar Shaw CC No. 12043/2019 Page no. 16 of 21 Rs.20,000/- from the complainant and his father used to repay the loan amount in small installments of Rs. 500/- or Rs. 1000/- or Rs.2,000/- and the complainant used to write details in small diary maintained by DW-2 Chandan Kumar. It was also stated that complainant at the time of advancing the said loan used to take two blank signed cheques, one from the account of DW-2 and one from the account of his father/accused. He also stated that the complainant also used to get his signatures on one blank white paper and one yellow paper and also the complainant never returned their security cheque despite repayment made. He further stated that he and his father has also filed a complaint against the complainant at PS Dabri as the complainant did not return their security cheques and used to misbehave with them. It was also stated that DW-2 and his father have also sent a legal notice to the complainant through their counsel asking for return of their security cheques. He further stated that the complainant had also advanced some loan to his mama Sh. Arjun Shaw and a case was also filed by the complainant against his mama which is decided in favour of his mama. He also stated that the complainant has misused the cheque in question to file a false case against him and his father/accused.
29. The accused also examined DW-3 Sh. Arjun Shaw who is the brother-in-law of the accused. He stated that he also used to avail loan from the complainant and the complainant after request, used to take one blank signed cheque from him as Ashok Kumar Singhal vs. Prabhakar Kumar Shaw CC No. 12043/2019 Page no. 17 of 21 security. It was also stated that all the transactions of the loan between the complainant and the accused were done in his presence. He further stated that the accused used to avail small loan of Rs. 10,000/- or Rs. 20,000/- from the complainant and used to repay the same in small installments of Rs 500/- or Rs. 1000/- on daily basis. It was also stated that the complainant used to take two blank signed cheques, one drawn from the account of accused and other drawn from the account of his son, as security from the accused at the time of advancing loan to him. He also stated that the complainant also took one promissory note signed by accused and also signed by DW-3 as a witness. He further stated that the complainant did not return the cheques of DW-3 as well as the cheques of the accused despite repayment stating that the same have been misplaced.
30. DW-2 and DW-3 merely reiterated the stand taken by the accused and have not filed any documentary proof in support of their testimony. Also, DW-2, being the son of the accused and DW-3, being the brother-in-law of the accused are interested witnesses. However, it is a well settled rule of prudence that the evidence of a related or interested witness should be examined very meticulously. Based on the testimony of the interested witnesses alongwith other evidence on record, the entire defence evidence will be examined.
31. It is clear that accused has not brought forth any other Ashok Kumar Singhal vs. Prabhakar Kumar Shaw CC No. 12043/2019 Page no. 18 of 21 witness apart from his son DW-2 and his brother-in-law DW-3 or any other material evidence to substantiate his defence version. Non examination of any other witnesses has clearly jeopardized the case of accused. The fact that DW-2 and DW-3 are directly related to the accused and thereby there are reasons for them to depose in his favour. In the absence of any other evidence, much less reliable, this defence version is established to be unsubstantiated and is thus, unbelievable. The mere oral testimony of DW-2 and DW-3 in absence of any documentary evidence cannot be solely relied upon.
32. Another condition pertains to the cheque being returned unpaid owing to their being dishonoured. Bank return memo or slip is prima facie proof of dishonour. Section 146 of the Negotiable Instruments Act, 1881, in this regard comes into play which raises the presumption that the Court shall presume the fact of dishonour of the cheque in case of cheque is returned vide a return memo issued by the bank having thereon the official mark denoting that the cheque has been dishonoured. Again, as the defence has failed to rebut the said presumption, hence, the said condition is also satisfied.
33. In relation to the legal demand notice, accused stated in his statement under Section 313 Cr.P.C that he had received the legal notice. The last condition is that the accused fails to make the payment within fifteen days from the date of receipt of the legal Ashok Kumar Singhal vs. Prabhakar Kumar Shaw CC No. 12043/2019 Page no. 19 of 21 demand notice. In the present case, the accused has evidently failed to make the payment within the fifteen days contending that he owes no legal liability to pay the amount mentioned in the cheque in question. The accused has miserably failed to prove the said assertion and thus, the last limb of what will entail the liability against the accused, is also structured. Therefore, the ingredients of Section 138 NI Act from clause (b) and (c), stands satisfied.
34. In view of the above, this court is of the considered opinion that apart from not raising a probable defence, the accused was not able to contest the existence of a legally enforceable debt or liability. The accused has miserably failed in probabilising his defence, even on the scale of pre-ponderance of probabilities The complainant disclosed the existence of a legally enforceable debt or liability vide the cheque in question, return memo and the legal notice brought on record. However, accused failed to rebut the presumption in favour of complainant either on the basis of other material available on record or by adducing any cogent defence evidence. There is sufficient material on record to conclude that complainant has successfully proved his case beyond reasonable doubt.
35 Accordingly, the accused Prabhakar Kumar Shaw is convicted for the offence under Section 138 of Negotiable Instruments Act, 1881.
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36. Let the convict be heard on quantum of sentence.
37. Copy of Judgment be supplied to the convict free of cost.
ANNOUNCED IN (PRIYA JANGHU) THE OPEN COURT METROPOLITAN MAGISTRATE TODAY i.e. 30.01.2023 DWARKA COURTS/ DELHI
Ashok Kumar Singhal vs. Prabhakar Kumar Shaw CC No. 12043/2019 Page no. 21 of 21