Delhi District Court
Simplex Enterprises Decided On ... vs . Mod on 27 September, 2019
IN THE COURT OF MS. UDITA JAIN
METROPOLITAN MAGISTRATE08 ( NI Act)
DWARKA COURTS, NEW DELHI
Case No. : 3011/2017
Sh. Dalip Singh
S/o Late Sh. Hari Singh
R/o Village and P.O Dichaon Kalan,
New Delhi 110043 ..........................Complainant
Versus
Sh. Manoj Dhingra
R/o Flat No. 40 B, Saksam Apartment,
Sector10, Dwarka,
New Delhi 110075
...........................Accused
Date of Institution : 25.02.2017
Plea of the accused : Pleaded Not Guilty
Date of Reserving Judgment : 27.09.2019
Date of Judgment : 27.09.2019
Sentence or final Order : Conviction
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE Case No. : 3011/2017 Page No.1 of 25
1. By way of the present judgment, I shall decide the complaint case U/s 138 of the Negotiable Instruments Act, 1881 (hereinafter said as the NI Act) filed by the complainant Sh. Dalip Singh against the accused Sh. Manoj Dhingra.
COMPLAINANT'S VERSION
2. The factual matrix, as per the complainant, necessary for the disposal of the present case is that the complainant and the accused are known to the each other from past several years. It is alleged that the accused offered to sell his shop, area measuring 20 Sq. Mtrs., situated at Najafgarh, New Delhi for a total consideration of Rs.10 Lakhs to the complainant. In view of the same, initially, the accused was paid Rs.2 lakhs by the complainant and thereafter, the amount of Rs. 7 lakhs was also paid by the complainant to the accused. It was agreed that the balance amount of Rs. 1 lakh will be paid at the time of execution of the sale deed of the said shop. Thereafter, despite several requests the accused did not sell the said shop and did not also take the balance amount of Rs. 1 lakh from the complainant. In November, 2016, the accused showed his inability to sell the said shop to the complainant and agreed to return the amount of Rs. 9 lakh given by the complainant to the accused as consideration.
3. It is alleged that in order to discharge part of his liability of Rs. 7 lakhs, the accused issued two cheques bearing no. 654681 and 654682 both dated 06.11.2016 drawn on State Bank of Mysore, Najafgarh, Delhi for a sum of Rs.
Case No. : 3011/2017 Page No.2 of 25 3,50,000/ each. The accused had requested the complainant to deposit the said cheques after 15th December, 2016. He also agreed to pay the balance amount of Rs. 2 lakh in cash in 23 days. It is averred that as per the assurances of the accused when the complainant presented the cheque twice for encashment, the said cheque got dishonoured vide cheque returning memos dated 21.01.2017 with the reason "Funds Insufficient".
4. Thereafter, the complainant got issued a legal notice dated 21.01.2017 upon the accused through speed post and courier which was apparently received by the accused as the same was not received back. The accused has failed to repay the alleged cheque amount of Rs. 7,00, 000/ to the complainant within stipulated time of 15 days despite receipt of the legal notice and accordingly, the present case has been filed by the complainant for prosecution of the accused Sh. Manoj Dhingra for the offence under section 138 of the NI Act.
5. After complaint was filed, the complainant examined himself in pre summoning evidence and after hearing the Ld. Counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused by the Court vide order dated 25.02.2017. On appearance of the accused a separate notice U/s 251 of the Criminal Procedure Code (herein after said "the Code") dated 24.05.2017 was given to the accused to which he pleaded not guilty and claimed trial. Thereafter, an opportunity was granted to the accused by the court for cross examination of the Case No. : 3011/2017 Page No.3 of 25 complainant's witnesses vide order dated 05.07.2017.
COMPLAINANT'S EVIDENCE
6. The complainant Sh. Dalip Singh got himself examined as CW1 & tendered his evidence by way of affidavit Ex. CW1/A reiterating the contents of the complainant. The complainant also relied upon the CW1 documents Ex. CW1/A to CW1/I.
a) Cheques in question are Ex. CW1/A and Ex. CW1/B.
b) Cheque returning memos are Ex. CW1/C and Ex. CW1/D.
c) Legal notice is Ex. CW1/E.
d) Original postal receipt is Ex. CW1/F.
e) Courier receipt is Ex. CW1/G.
f) Tracking report of delivery along with certificate under Sec.65 B are Ex. CW1/H and Ex. CW1/I.
7. CW1 was then cross examined by the Ld. Counsel for the accused. No other witness was examined by the complainant and the matter was listed for recording statement of the accused.
STATEMENT OF ACCUSED U/S 313 OF THE CODE Case No. : 3011/2017 Page No.4 of 25
8. The statement of the accused Sh. Manoj Dhingra was recorded U/s 313 of the Code in which all the incriminating evidence along with exhibited documents were put to him. The accused denied entering into any agreement with the complainant for sale of any shop of 20 Sq. Mtrs. at Najafgarh for a total consideration of Rs. 10 lakhs. He denied owing any such shop. He admitted his signatures and filling of all the particulars in the cheque in question except the date. He averred that he had taken a loan of Rs.7,00,000/ at interest of 3% pm from the complainant around 45 years back and had given the cheques in question to the complainant as security at the time of taking the said loan. He claimed that he had repaid the entire loan amount along with interest to the complainant. When he asked for return of his cheques, the complainant told him that the same have been misplaced. It is averred that the complainant has misused the said security cheques.
DEFENCE EVIDENCE.
9. In defence evidence the accused examined himself as DW1 and relied upon the following documents:
• Mark X i.e. the ledger account.
• Ex. DW1/1 i.e. the Bank statement of bank account in the name of M/S Dhingra Tyres.
• Ex. DW1/2 i.e. the counterfoil of cheque book containing cheque no.s 165685 to 165693.
• Ex. DW1/3 i.e. the counterfoil of cheque book containing cheque no.s Case No. : 3011/2017 Page No.5 of 25 654679 to 654683.
• Ex. DW1/4 (Colly.) i.e. copy of daybook for the period dated from 31.05.2006 to 11.01.2016 (running into pages 689).
The said witness was cross examined by the Ld. counsel for the complainant. No other defence witness was examined by the accused and after recording statement of the accused in this regard, D.E was closed on 21.08.2019, and the matter was fixed for final arguments.
FINAL ARGUMENTS
10. Final arguments were addressed on behalf of both the parties. During arguments, Ld counsel for complainant argued that the daybook produced by the accused does not bear the signatures or receipt of the complainant and therefore, has no credence. Further, in none of the documents filed by the accused, it is shown that at any point of time, a sum of Rs. 7 lakh was taken as loan on interest by the accused from the complainant. The accused has also failed to show that the cheques were given as security as neither any notice for return of cheques had been given by the accused to the complainant nor any police complainant had been filed to report their misuse. It is alleged that the accused has been unsuccessful in rebutting the presumption against him and therefore, is liable to be convicted of the offence under Section 138 NI Act. He relied upon judgments titled as Canara Marbles & Granite Industries V. Simplex Enterprises decided on 30.11.2015; Suresh Thomas Vs. Mod Case No. : 3011/2017 Page No.6 of 25 Enterprises 2017 ACD 7 (DEL); Jaspal Singh Vs. State (Govt. of NCT of Delhi) & another 2017 ACD 371 (DEL), and M/s Jane Norman Retail Pvt. Ltd and another V. State (NCT of Delhi) and another. On the other hand, Ld. Counsel for the accused has argued that from the cross examination of the complainant and his witnesses as well as by way of his own evidence, the accused has been successful in rebutting the presumption against him. It is contended that the complainant has neither mentioned the date nor the place where the alleged amount was given. Further, no bayana receipt or agreement had been filed on record by the complainant to support his contention. Even the address of the shop alleged to be offered for sale has not been mentioned by the complainant. It is argued that once the accused has denied selling of any shop to the complainant, the onus shifts upon the complainant to prove that any oral agreement for sale was executed between the parties, which the accused has failed to discharge. It is further alleged that from the documents filed by the accused, it stands proved that the cheques were given as security to the complainant for a loan taken from him, which loan has been repaid by the accused. It is averred that in a criminal case the complainant has to prove his case beyond all reasonable doubts and since the complainant has failed to discharge the burden of proof upon him beyond all reasonable doubts, the accused is entitled to be acquitted. Written arguments have also been filed on behalf of accused, succinctly laying down his defence in the case. He also relied upon judgments titled as Rangaappa Vs. Mohan 2010 Cri. LJ 2871; G. Pankajakshi Amma & Ors. Vs. Mathai Methew 2005 (9) SCALE 614; M/s Ashwin Papers Vs. B.G. Kalathil 2013(2) DCR 427; P. Krishna Case No. : 3011/2017 Page No.7 of 25 Swami Vs. Delta Knit Wearables 2011(2) DCR 439; C. Santhi Vs. Mary Sherly 2011 (3) KLT 273; Kamalammal Vs. C.K. Mohanan & Anr. II (1999) CCR 424 (Mad.) ; Kumar Export Vs. Sharma Carpets IX (2008) SLT 674; Mahendra Gulab Chand Kochar Vs. Shakaram Dass Patil 2011 (1) DCR 254 (Bom.); HDFC Bank Vs. Amit Kumar Singh 2010 (1) DCR 658 Delhi; M.S. Narainan Menon Menon @ Mani VS. State of Kerala & Anr. 2006 (3) SCC (Crl.) 30; Vijay Vs. Laxman & Anr. 2013 (v) A.D. (SC) 243; K. Prakashan Vs. P.K. Srienderan 2009 (I) Bankers Journal (SC) 768; Rev. Mother Markutty Vs. Reni C Kottaram & Anr. 2013 (1) DCR 577 (SC); LIC Vs. Rampal Singh Bisen 2010 (4) SCC 491.
I have heard Ld. Counsels for both the parties and have perused the entire record of the case file including the judgments filed. Before proceeding further it is imperative for me to go through the relevant provisions of law.
Section 138 of the Negotiable Instruments Act provides that:
"Dishonour of cheque for insufficiency, etc, of funds in the account:Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in while or in part, of any Case No. : 3011/2017 Page No.8 of 25 debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and Case No. : 3011/2017 Page No.9 of 25
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation:For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
APPRECIATION OF EVIDENCE IN THE LIGHT OF THE INGREDIENTS OF SECTION 138 OF THE NI ACT AND THE DEFENCE RAISED BY THE ACCUSED
11. It is not disputed by the accused that the cheques in question Ex. CW1/A and Ex. CW1/B are drawn on the account maintained by him. Further, the accused has also not disputed his signatures on the cheque in question. Further the presentation, dishonour of the cheque in question and the cheque returning memos Ex. CW1/C and Ex. CW1/D have also not been challenged by the accused. Therefore, in light of the evidence on record it stands duly proved that the cheque in question is drawn on the account maintained by the accused and the same also bears his signature. Further it also stands proved that the cheques in question Ex. CW1/A and Ex. CW1/B got dishonoured vide Case No. : 3011/2017 Page No.10 of 25 cheque returning memos Ex. CW1/C and Ex. CW1/D with the reasons "Funds Insufficient".
12. Now coming to the issue whether the accused has been served with the legal demand notice Ex. CW1/E by the complainant. The accused has denied the receipt of the legal demand notice at the time of framing of the notice under section 251 of the Code and also in his statement U/s 313 of the Code. During the course of arguments Ld. Counsel for the accused also argued that the legal demand notice Ex. CW1/E has never been served upon the accused since the address mentioned in the same is not the correct address of the accused. It is alleged that the correct address of the accused is Flat No. 604, Plot No. 40 B, Saksham Apartment, Sector10, Dwarka, New Delhi 110075, whereas the legal notice has been sent at Flat No. 40 B, Saksam Apartment, Sector10, Dwarka, New Delhi 110075. Therefore, it is claimed that the legal notice was never served upon the accused.
13. Pertinently, no documentary proof has been filed by the accused to show that he doesn't reside at the address mentioned in the legal notice. Further, a careful perusal of the address of the accused mentioned on the legal notice and the address furnished by the accused as his correct address shows that apart from the flat number, the other details are same. The plot number has only been mentioned to be the flat number. It is also pertinent to mention here that evidently the summons have been served upon the accused along with the copy of the complaint at address of the accused as mentioned in the complaint Case No. : 3011/2017 Page No.11 of 25 and the legal demand notice and the accused has appeared in the court in pursuance to the summons. Even otherwise in, C.C. Alavi Haji vs Palapetty Muhammed & Anr (2007) 6 SCC 555, the Hon'ble Apex Court has held as under;
"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 the Act, make payment of the cheque amount and submit to the 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 under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the Case No. : 3011/2017 Page No.12 of 25 legislation..."
14. Therefore, in light of the facts that the summons had been served upon the accused at the address mentioned in the legal notice, the accused has not made the payment within 15 days of receipt of summons and the legal notice is otherwise a valid legal notice, the plea of the accused that the legal notice has not been served upon him is not tenable.
15. Now coming to the issue whether the accused has been able to rebut the presumption raised against him by application of Section 139 N I Act, it is a trite law 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 Negotiable Instruments Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 N I Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court" (Rangappa vs. S. Mohan, (2010) 11 SCC 441). Therefore, it is clear that mere blank assertions on behalf of the accused are not sufficient to rebut the presumption mentioned in Section 139 N I Act. A probable defence Case No. : 3011/2017 Page No.13 of 25 must be raised by him.
16. In the case at hand, the complainant alleges that the accused offered to sell his shop area measuring 20 Sq. Mtrs. situated at Najafgarh, New Delhi for a total consideration of Rs..10 Lakhs. Initially, the accused was paid Rs. 2 lakh by the complainant and thereafter, the amount of Rs. 7 lakhs was also paid by the complainant to the accused. It was agreed that the balance amount of Rs. 1 lakh will be paid at the time of execution of the sale deed of the said shop. Thereafter, despite several requests the accused did not sell the said shop and did not also take the balance amount of Rs. 1 lakh from the complainant. In November, 2016, the accused showed his inability to sell the said shop to the complainant and agreed to return the amount of Rs. 9 lakh given by the complainant to the accused as consideration. It is claimed that in order to discharge part of his liability of Rs. 7 lakhs, the accused issued the cheques in question in favour of the complainant. He also agreed to pay the balance amount of Rs. 2 lakh in cash in 23 days. On the other hand, the accused at the time of framing of notice and also in his statement u/s 313 of the Code has specifically denied entering into any agreement with the complainant for sale of any shop of 20 Sq. Mtrs. at Najafgarh for consideration of Rs. 10 lakhs. He even denied owing any such shop. He admitted his signatures and filling of all the particulars in the cheque in question except the date. He averred that he had infact taken a loan of Rs.7,00,000/ at interest of 3% pm from the complainant around 45 years back and had given the cheques in question to the complainant as security at the time of taking the said loan. He claimed that Case No. : 3011/2017 Page No.14 of 25 he had repaid the entire loan amount along with interest to the complainant. When he asked for return of his cheques, the complainant told him that the same have been misplaced. It is averred that the complainant has misused the said security cheques.
17. U/s 139 N I Act, it is presumed that the cheque was issued in favour of the complainant in discharge of any debt or liability. Further, Section 118(a) N I Act presumes existence of consideration against which the cheque is issued. Both these presumptions are rebuttable presumptions of law and as discussed above, the burden of rebutting which is upon the accused.
Further as far as the extent of burden of proof upon the accused to rebut the presumption is concerned, it is settled that the accused may not even take the stand as a witness to rebut the said presumption and may rely upon the evidence of the complainant to rebut the same. The burden of proof upon the accused to rebut the presumption is only by preponderance of probabilities. Nevertheless, the accused has to raise a probable defence by creating doubts in the story of the complainant. This he can do even from the crossexamination of the complainant.
18. In the case at hand, it was for the accused to prove by preponderance of probabilities that the cheques in question were not issued by him in favour of the complainant to repay a sum of Rs. 7 lakhs as alleged by the complainant. To prove the same, the accused has examined himself as a witness and cross examined the complainant at length. During his crossexamination, the Case No. : 3011/2017 Page No.15 of 25 accused placed on record his day books to prove that there was infact a loan transaction between him and complainant and there was no transaction of sale as alleged by the complainant. The law as to relevancy of books of account is mentioned under Sec. 34 of the Indian Evidence Act (hereinafter referred to as IEA). The said provision is stated as follows:
"Entries in books of account when relevant Entries in book of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the court has to inquire but such statements shall not alone be sufficient evidence to charge any person with liability."
With regard to the conditions that have to be fulfilled before books of account of any person can be considered as relevant, the Hon'ble Apex court, in Central Bureau of Investigation vs. V.C. Shukla (1998) 3 SCC 410 has laid down that:
"From a plain reading of the Section it is manifest that to make an entry relevant thereunder it must be shown that it has been made in a book, that book is a book of account and that book of account has been regularly kept in the course of business. From the above Section it is also manifest that even if the above requirements are fulfilled and the entry becomes admissible as relevant evidence, still, the statement made therein shall not alone be sufficient evidence, still, the statement made therein shall not along be sufficient evidence to charge any person with liability. It is thus seen that Case No. : 3011/2017 Page No.16 of 25 while the first part of the section speaks of the relevancy of the entry as evidence, the second park speaks, in a negative way, of its evidentiary value for charging a person with a liability. It will, therefore, be necessary for us to first ascertain whether the entries in the documents, with which we are concerned, fulfil the requirements of the above section so as to be admissible in evidence and if this question is answered in the affirmative then only its probative value need be assessed....... It cannot be gainsaid that the words 'account', 'books of account', 'business' and 'regularly kept' appearing in Section 34 are of general import. necessarily, therefore, such words must receive a general construction unless there is something in the Act itself, such as the subject matter with which the Act is dealing, or the context in which the words are used, to show the intention of the legislature that they must be given a restrictive meaning. ......Coming now to the word ' business' , we need not search for its meaning in Black's Law Dictionary, or words and Phrases for this Court has dealt with the word in a number of cases. In Narain Swadesh Weaving Mills vs. The Commissioner of Excess profits Tax [ 1955 (1) SCR 952], a five judge bench of this Court held that the word 'business' connotes some real, substantial and systematic or organised course of activity or conduct with a set purpose' and the above interpretation was quoted with approval in Mazagaon Dock Ltd. vs. The Commissioner of Income Tax and Excess Profits Tax [1959 SCR 848]. Again in Barendra Prasad Ray vs. I.T.O. [1981 92) SCC 693] this court observed that the word 'business' is one of wide import ad it means an activity carried on continuously and systematically by a person by the application of his labour or skill with a view to earning an Case No. : 3011/2017 Page No.17 of 25 income. The activities of the Jain brothers, as sought to be projected by the prosecution now on the basis of the materials collected during investigation (detailed earlier) would, therefore, be 'business' for they were being carried on continuously in an organised manner, with a set purpose (be it illegal) to augment their own resources. mr. 71/91 is, therefore, a book of account kept in the course of business.
.........What is meant by the words 'regularly kept' in Section 34 came up for consideration before different high Courts; and we may profitable refer to some of those decisions cited at the Bar. In Ramchand Pitembhardar Vs. Emperor [19 Indian cases 534] it has been observed that the books are 'regularly kept in the corse of business' if they are kept in pursuance of some continuous and uniform practice in the current routine of the business of the particular person to whom they belong. In Kesheo Rao vs. Ganesh [AIR 1926 Nagpur 407] the court interpreted the above words as under:
" The regularity of which S.34 speaks cannot possibly mean that there is not mistake in the accounts, as that would make the section a dead letter; no accounts could be admitted in evidence till they had been proved to be absolutely correct, which is in itself an impossible task and also cannot be begun till they have been admitted in evidence. Regularly or systematically means that the accounts are kept according to a set of rules or a system, whether the accountant has followed the rules or system closely or not. Nor is there any thing in the section that says the system must be an elaborate or reliable one. Both those matters, the degree of excellence of the system and the closeness with which it has been followed, affect the weight of the evidence of Case No. : 3011/2017 Page No.18 of 25 an entry, not it s admissibility. The roughest memoranda of accounts kept generally according to the most elementary system, though often departing from its, are admissible in evidence, but would of corse have no weight."
The view expressed by the Kerala High Court in Kunjamman Vs. Govinda Kurukkal [1960 kerala Law Times 184] in this regard is that the words 'regularly kept' do not necessarily mean kept in a technically correct manner for no particular set of rule or system of keeping accounts is prescribed under Section 34 of the Evidence Act and even memoranda of account kept by petty shopkeepers are admissible if they are authentic While dealing with the same question the Punjab & Haryana High Court observe in Hiralal Mahabir Pershad Vs. Mutsaddilal Jugal Kishore [(1967) 1 I. L. R P &: H 435] that the entries should not be a recital of past transactions but an account of transactions as they occur, of course, not necessarily to be made exactly at the time of occurrence and it is sufficient if they are made within a reasonable time when the memory could be considered recent.
In our considered opinion to ascertain whether a book of account has been regularly kept the nature of occupation is an eminent factor for weighment. The test of regularity of keeping accounts by a shopkeeper who has dally transactions cannot be the same as that of a broker in real estates. Not only their systems of maintaining books of account will differ but also the yardstick of contemporaneity in making entries therein."
19. On applying the above said principle to the facts of the present case, it is clear that the day books produced by the accused in support of his Case No. : 3011/2017 Page No.19 of 25 submissions are allegedly books of account kept by the accused. However, the accused has failed to show as to for what business the said books were maintained by him. In the absence of proving that the said books were regularly kept by the accused in the course of his business, the same cannot be considered as relevant for defence of the accused. Nevertheless, a bare perusal of the said books show that there are certain entries made as to price, cost, last balance etc. The payments allegedly made to the complainant are shown under the head "payments" but there is absolutely no indication of the purpose for which the payment is made. In view of the same, the day books produced by the accused does not support his case. The printout of ledger account placed on record by the accused also fails to meet the above said qualifications for relevancy. Accordingly, the same, also, lends no weight to the defence of the accused. During the course of arguments, it was also argued by ld counsel for accused that the submission of the complainant that he used to file ITRs is indicative of the fact that he used to maintain his books of account also, which should have been produced by him to prove the alleged transaction between the parties. No such presumption can be raised by the court only because the complainant avers that he used to file ITRs. Therefore, even this contention of the accused has no force.
20. Another contention raised by the ld counsel for accused is that the complainant has failed to mention in his complaint the address of the shop which was allegedly agreed to be sold to him. Clearly, the complaint of the complainant fails to mention the address of the shop alleged to be sold to him.
Case No. : 3011/2017 Page No.20 of 25 However, during his crossexamination, on being asked, the complainant clearly averred that the shop to be sold was situated in the house of the accused itself and that it was agreed between the parties that 20 sq. mrs. of space from the house of the accused would be given to the complainant. The said averment of the complainant has not been impeached in his crossexamination. It was also argued on behalf of accused, that the complainant has also failed to prove the oral agreement alleged to be executed between the parties as he has also not mentioned the date when the said agreement was executed and when the money was given by him to the accused. Mere omission on part of the complainant to mention the said facts does not by itself shifts the burden of proof back upon him, when no question in this regard was put to the complainant at the time of his crossexamination. During arguments, it was further contended by ld counsel for accused that since the accused has denied that any oral agreement was entered into between him and the complainant, the presumption u/ sec. 139 Negotiable Instruments Act stands rebutted and the burden of proof shifts upon the complainant to prove his case beyond all reasonable doubts. Bland denial by the accused does not shift the burden of proof upon the complainant in terms of the special rules of evidence laid down under the Negotiable Instruments Act. The accused had to establish by preponderance of probabilities that he had no liability towards the complainant for the cheques in question which the accused, as per the discussion above, has failed to do. When the accused has raised a specific defence in his favour, the burden of proof was first upon him to prove his defence by preponderance of probabilities.
Case No. : 3011/2017 Page No.21 of 25
21. It is also the case of the accused that he had given the cheque only as a security cheque for repayment of loan amount taken by the accused from the complainant since the year 2007. In this regard, it is a settled law that once, the accused has admitted the signatures on the cheque, a presumption arises under Sec. 20 of the Negotiable Instruments Act that the accused had given the complainant the authority to fill the particulars in the cheque. In the recent judgment, Bir Singh Vs. Mukesh Kumar (SLP(CRL ) NOS. 933435 OF 2018), it has been very categorically held by the Hon'ble apex court, "The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the Case No. : 3011/2017 Page No.22 of 25 cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence....Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."
In the present case, the accused has produced his daybooks to prove his averments. The relevancy of the daybooks produced by the accused has already been discussed above. Nevertheless, even a bare perusal of the same itself shows that the cheques in question are mentioned to be given between the dates of 23.07.2015 02.08.2015 whereas, contradicting the same, during crossexamination of the complainant, it was suggested that the cheques in question were given in the year 201213 for repayment of loan taken since the year 2007. The accused even failed to prove by way of any oral or documentary evidence that a loan for Rs. 7 lakh was taken by him from the complainant till the year 201213 or till 2015 for which the cheques were given by him, admittedly, filling the amount of Rs. 3.5 lakhs on each cheque. When the amount in the cheques were also admitted to have been filled by him, it was for the accused to prove that a loan of Rs. 7 lakh was taken by him from the complainant, for which he had given the cheques as security and which he had repaid. It was for the accused to disprove the contentions of the complainant and prove that cheques were in fact not given for the purpose claimed by the accused, which the accused has failed to do in the present case even by leading of any independent oral evidence.
Case No. : 3011/2017 Page No.23 of 25
22. Another argument put up by ld counsel for accused is that the affidavit dated 20.02.2017 filed by the complainant averring that he has not field any other complaint against the accused with respect to the cheques in question is false, as the complainant himself filed a document Ex. DW1/ C1 which is a complaint filed by the complainant with the police with respect to the cheques in question. The said argument of the ld counsel for accused is meritless, as a careful perusal of the said affidavit itself shows that the complainant swears that he has not filed any similar complaint i.e. a complaint under Sec.138 NI Act with respect to the cheques in question in any other court. This fact is not disputed by ld counsel for accused. Hence, even this contention of the accused does not support his case.
23. Considering that the defence led by the accused to rebut the presumption under Section 138 Negotiable instruments Act is not proved and in the light of the aforesaid provision of the law & judgments, this Court deems it fit to hold that the accused has failed to rebut the presumption against him u/s 139 N I Act, even by preponderance of probabilities. The accused has failed to discharge the burden of proof upon him either by producing his own evidence or by shaking the credibility of the complainant from his cross examination. On failure of the accused to discharge his burden, it is fit to hold that the complainant has been able to prove the offence under Section 138 of N I Act against the accused beyond the shadow of reasonable doubts. The judgments relied upon by the learned counsel for the accused do not support Case No. : 3011/2017 Page No.24 of 25 his defence. Since all the ingredients of Section 138 N I Act have been satisfied, accordingly, accused Manoj Dhingra is hereby convicted for the offence u/S. 138 of the NI Act.
24. Let the convict be heard on the point of sentence.
25. Copy of judgment be given to convict, free of cost.
26. This Judgment contains 25 pages. Every Page of this Judgment has been signed by me. Digitally signed UDITA by UDITA JAIN Date:
JAIN 2019.10.04 15:35:00 +0530 Announced in the open Court (Udita Jain) on 27th September, 2019 MM (NI Act08)/Dwarka Courts New Delhi Case No. : 3011/2017 Page No.25 of 25