Delhi District Court
Nawal Singh Nagar vs Raj Kumar on 28 September, 2022
IN THE COURT OF SH. RISHABH TANWAR
METROPOLITAN MAGISTRATE 09, SAKET COURTS :
NEW DELHI
DLSE020248192018 Registration No. 5846/2018
Nawal Singh Nagar Vs Raj Kumar
1. CNR No. : DLSE020248192018
2 Name of the complainant
: Nawal Singh Nagar
s/o Sh. D. P. Singh Nagar,
r/o H No. 5/624, Vasundhara,
Ghaziabad, U. P.
3. Name and address of the : Raj Kumar
accused S/o Sh. Ballu Singh Thekedar
r/o H No/ 238 & 249, Village Arthala,
P. S. Sahibabad, Ghaziabad, U. P.
4. Offence complained of : Section 138 of the Negotiable
Instruments Act, 1881.
5. Plea of the accused : Pleaded not guilty and claimed trial.
6. Final Order : CONVICTION
7. Date of Institution : 05.07.2018
8. Date of Reserving the : 19.09.2022
Judgment
9. Date of pronouncement : 28.09.2022
JUDGMENT:
1. Briefly stated that case of the complainant is that accused was known to the complainant as he used to run an electrical goods shop nearby to the complainant's house for more than five years. It is the case of the complainant that from September 2016 to December 2016, the CC No. 6969/2018 Nawal Singh Nagar Vs Raj Kumar Page No. 1/ 19 accused had taken financial help from the complainant in the sum of Rs. 6,80,000/ in three installments.
2. It is the case of the complainant the accused in part discharge of his legally payable debt/liability towards the complainant had issued three cheques Ex CW1/1, Ex CW1/2 and Ex CW1/3 in favour of the complainant.
SL. CHEQUE NO. DATE AMOUNT DRAWN ON
No. (Rs.)
1. 000127 20.03.2018 Rs. 2,00,000/ Bank of India,
Vasundhara,
Sector5,
Ghaziabad, U.P.
2. 000128 10.04.2018 Rs. 2,30,000/ Bank of India,
Vasundhara,
Sector5,
Ghaziabad, U.P.
3. 000129 15.05.2018 2,50,000/ Bank of India,
Vasundhara,
Sector5,
Ghaziabad, U.P.
3. The above said cheques were deposited by the complainant in his bank i.e. Vijaya Bank, Defence Colony110024, on 15.05.2018, but same were dishonoured and returned unpaid by the accused's bank with the remarks "Funds Insufficient". The knowledge of the same was received by the complainant through its bank vide its return memos dated 16.05.2018 Ex CW1/4, Ex CW1/5 and Ex CW1/6.
4. Constrained by the apathetic attitude of the accused, the complainant within the 30 days of the receipt of the return memo of CC No. 6969/2018 Nawal Singh Nagar Vs Raj Kumar Page No. 2/ 19 dishonour of the cheque and as per requirement of the section 138(b) Negotiable Instruments Act, 1881, sent a demand notice dated 23.05.2018 Ex CW1/7, through registered post to the accused, to make payment for an amount of Rs. 6,80,000/ (Rupees six lakhs eighty thousands only) being the total amount of the said cheque alongwith interest within 15 days of the receipt of the notice. The said legal notice was sent through a registered post to the accused and the said notice was delivered to the accused, however, the accused failed to make payment against the "said cheques" to the complainant, despite receipt of the legal notice. The copy of the notice is Ex CW1/7 and the receipt of speed post is Ex CW1/8. The legal notice was duly served upon accused on 23.05.2018. The accused failed to pay the cheque amount within the statutory period. Hence, the present complaint under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') has been filed.
5. Accused entered appearance in the present matter for the first time on 27.04.2019 and furnished his personal bonds in sum of Rs. 30,000/. Copy of documents were also supplied to the accused on the same day. Notice under Section 251 Cr.P.C. was served upon accused on 26.11.2019 to which he pleaded not guilty and claimed trial. Thereafter, accused was allowed to crossexamine the complainant u/s 145 (2) NI Act vide order dated 26.11.2019. After cross examination of the complainant, matter was fixed for statement of the accused under Section 313 Cr.P.C and the same was recorded on 18.12.2021. Thereafter, the matter was fixed for final arguments which were concluded only on 19.09.2022 and the matter was fixed for judgment.
EVIDENCE
6. In order to support his case, the complainant had stepped into the witness box as CW1 and tendered his affidavit Ex.CW1/A into evidence CC No. 6969/2018 Nawal Singh Nagar Vs Raj Kumar Page No. 3/ 19 wherein averments made in the complaint were reiterated. He also relied upon the documents which are already exhibited Cheque bearing no. 000127 dated 20.03.2018 Ex.CW1/1, Cheque bearing no. 000128 dated 10.04.2018,Ex CW1/2 and Cheque bearing no. 000129 dated 15.05.2018 Ex. CW1/3, cheque return memos Ex PW1/4 to Ex PW1/6, legal demand notice Ex CW1/7, receipt of speed post Ex CW1/8, tracking report Ex CW1/9.
He was cross examined by Sh. Bishan Singh, Ld. Counsel for the accused, wherein he deposed that he has a business of home appliances by the name of Olympic Home Appliances. He further deposed that he knows the subject matter of the complaint he does not know the verbatim understanding of the documents that are subject matter of the present case. He also deposed that he had signed the affidavit, although it is in English and his counsel had read over it to him. Further, he deposed that he had advanced the sum of Rs. 6.80 lakhs to the accused in his personal capacity, which he had arranged after selling an ancestral property worth Rs. 8.12 lakhs. He also deposed that all the details are written in different ink, although they all were written in the same time. He also deposed that although the accused had two addresses, he had sent only one legal notice to one of the addresses of accused.
7. No other witness remained to be examined and thereafter, the CE was closed vide order dated 25.11.2021. Thereafter, the matter was listed for statement of accused u/s 313 CrPC vide order dated 25.11.2021, which was concluded on 18.12.2021. The accused had opted to lead evidence in his defence and therefore, he examined himself as DW1.
He deposed that he used to have a shop of electrical appliances at sector 5, Vasundhara, Ghaziabad somewhere in October 2016. He CC No. 6969/2018 Nawal Singh Nagar Vs Raj Kumar Page No. 4/ 19 deposed that his neighbour Mohd. Anwar had approached him to stand as surety as he had taken money from the complainant namely Nawal Singh Nagar, who had a business of lending money on interests. He also deposed that towards the end of October 2016, the complainant had approached him and demanded certain cheques as security for securing the payment made to Monu. After one year, on inquiry it was told to him by Mohd. Anwar @ Monu that he had already paid the outstanding amount to the complainant. Further, when he approached the complainant to return his cheques, the complainant told that he had misplaced the cheques and later on, he got to know that the same has been misused by him and a cheque bounce case has been filed against him.
APPLICABLE LAW
8. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first. Now, Section 138 Negotiable Instrument Act provides as under:
Section 138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the 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 CC No. 6969/2018 Nawal Singh Nagar Vs Raj Kumar Page No. 5/ 19 Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation -- for the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
It is well settled position of law that to constitute an offence under S.138 N.I. Act, the following ingredients are required to be fulfilled: (1) drawing of the cheque by a person on an account maintained by him with a banker, for payment to another person from out of that account for discharge in whole/part any debt or liability; (2) cheque has been presented to the bank within a period of six months (now three months) from the date on which it is drawn or within the period of its validity whichever is earlier; (3) returning CC No. 6969/2018 Nawal Singh Nagar Vs Raj Kumar Page No. 6/ 19 the cheque unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque, (4) giving notice in writing to the drawer of the cheque within 30 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount, (5) failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice.
Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the N I Act.
The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption under Section 139, that the holder of cheque receiving the same of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. Analysing all the concerned provisions of law and various pronouncements in this regard, the Hon'ble Apex Court in Basalingappa v. Mudibasappa, AIR 2019 SC 1983, noted at para 23 as follows [Bharat Barrel and Drum Manufacturing Company v. Amin Chand Pyarelal, (1999) 3 SCC 35; M.S. Narayana Menon alias Mani v. State of Kerala and another, (2006) 6 SCC 39; Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54; Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513; Rangappa CC No. 6969/2018 Nawal Singh Nagar Vs Raj Kumar Page No. 7/ 19 v. Sri Mohan, (2010) 11 SCC 441 referred]:
(i) Once the execution of cheque is admitted, Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposes an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to support his defence.
To put in nutshell, the law regarding the presumption for the offence under Section 138 N.I. Act,is that the presumptions under Sections 118(a) and 139 have to be compulsorily raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted upon the accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or CC No. 6969/2018 Nawal Singh Nagar Vs Raj Kumar Page No. 8/ 19 liability etc. The onus to prove the issuance of the cheque lies upon the complainant, and the same has to be proved beyond reasonable doubt, unless the accused admits the same. Once the issuance of cheque is established, either by admission or by positive evidence, the presumption under Section 139 of the Negotiable Instruments Act, 1881 arises. We can summarize the general principles in the following way:
Onus of proof: Section 139 of the Negotiable Instruments Act, 1881 states that it shall be presumed, unless the contrary is proved that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. Therefore, here the onus shifts upon the accused to prove the nonexistence of debt or other liability. Section 139 of the N.I. Act uses the word "shall presume", which means that the presumption under Section 139 is rebuttable.
Standard of proof: The standard of proof required to rebut the presumption under Section 139 is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or other liability, the onus shifts back to the complainant to prove by way of evidence, beyond reasonable doubt, that the cheque in question was issued by the accused in discharge, whole or in part, of any debt or other liability, and now the presumptions under Section 118 (a) and Section 139 will CC No. 6969/2018 Nawal Singh Nagar Vs Raj Kumar Page No. 9/ 19 not come to the aid of the complainant.
Mode of Proof: The accused may adduce direct evidence to prove that the cheque in question was not supported by consideration, and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should prove the nonexistence of the consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that a bare denial of passing of consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances upon the consideration of which, the Court may either believe that the consideration and debt did not exist, or their nonexistence was so probable that a prudent man would, under circumstances of the case, act upon the plea that they did not exist.
As discussed above, from the legal provisions and the law laid down in various judgments, it can be safely gathered that it is for the accused to rebut the presumptions. He can do so by cross examining the complainant, leading defence evidence, thereby demolishing the case of the complainant. It is amply clear that the accused does not need to discharge his or her liability beyond the shadow of CC No. 6969/2018 Nawal Singh Nagar Vs Raj Kumar Page No. 10/ 19 reasonable doubt. He just needs to create holes in the case set out by the complainant. Accused can say that the version brought forth by the complainant is inherently unbelievable and therefore the prosecution cannot stand. In this situation the accused has nothing to do except to point inherent inconsistency in the version of the complainant or the accused can give his version of the story and say that on the basis of his version the story of the complainant cannot be believed.
ARGUMENTS AND APPRECIATION OF EVIDENCE
9. Ld. counsel for the complainant has argued that all the requirements of Section 138 NI Act have been met with in the present case and, hence, the accused be convicted. I have heard the arguments and also gone through the record carefully.
10. Ld. counsel for accused has argued that in the complaint no specific averment as mentioned by the complainant has been made to show that as to when and how the payment as alleged by the complainant was made to the accused. It is further argued by the Ld. Counsel that it is the case of the complainant that he had given the said amount of Rs. 6.08 lakhs to the accused in cash whereas the same was not possible since due to demonetization of the 500/ and 1000/ currency was done on 08.11.2016. It is further argued that the complainant has not explained as to from where he had arranged for such cash. It is further argued by the Ld. Counsel for the accused that the said amount was not shown in his income tax returns. It is further argued by the Ld. Counsel for the accused that there are two addresses of the accused mentioned in the complaint and as such two legal notices have been sent to the accused. However, in the present case only CC No. 6969/2018 Nawal Singh Nagar Vs Raj Kumar Page No. 11/ 19 one legal notice was sent and that to was sent on incorrect address. Ld. Counsel has further argued that though there are three cheques in question in the present matter thus all the said cheques have been filled using the pen having the same ink and even are identical. The said cheques were given as security cheques which have been misused by the complainant.
11. In the present case, cheque bearing no. 000127, 000128 and 000129, all bearing the signature of the accused persons in the sum of Rs. 2.00 lakhs, 2.30 lakhs and 2.05 lakhs respectively, drawn on Bank of India were presented and were returned dishonoured vide memo dated 16.05.2018 for the reasons funds insufficient. Thereafter, the complainant had sent a legal notice dated 23.05.2018 duly addressed to the accused. On bare perusal all the necessary requirements of the offence u/s 138 NI Act are fulfilled and the aforesaid offence can be deemed to have been committed by the accused.
12. The accused has not denied his signatures on the aforesaid cheque. At this stage, the presumption u/s 139 NI Act comes into operation and the same is reproduced here for quick reference:
"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. At this stage, reference is made to "Rohitbhai Jivanlal Patel Vs State of Gujarat", Crl. Appeal No. 508 of 2019, decided on 15.03.2019.
"Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments.CC No. 6969/2018 Nawal Singh Nagar Vs Raj Kumar Page No. 12/ 19
While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard of proof.
28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
14. Now the crux of the defence of the accused is that towards the end of 2016, the complainant had approached him to stand as surety for one Monu @ Mohd. Anwar, to whom the complainant had given a loan. It is the case of the accused that he had enquired from the said Monu, who informed him that he had repaid the entire amount to the complainant. Now, when the notice under section 251 Cr.P.C was served upon the CC No. 6969/2018 Nawal Singh Nagar Vs Raj Kumar Page No. 13/ 19 accused, the accused was asked to disclose his defence, wherein the accused had stated that he had issued these cheques in blank to the father of the complainant for guarantee of his neighbour, who had taken the loan from father of the complainant. However, in his plea of defence dated 06.02.2016, the accused had stated that he had given the cheque in blank to complainant for guarantee of his neighbour who had taken the loan from the complainant. He refused taking any loan from the complainant himself. There is a clear contradiction in the defence disclosed by the accused, where on one hand, the accused had stated that he had given the cheques in question to the father of the complainant and on the other hand, later he has gone completely silent on that aspect.
15. When the accused entered the witness box to examine himself under section 315 Cr.P.C., he had stated towards the end of October, 2016, the complainant had approached him to stand as a surety for one Monu @Mohd. Anwar and that the complainant had informed him that he had given a loan of Rs. 3.50L to the said Monu. This is also a clear diversion from his earlier defence disclosed at the time of notice. There is no whisper of the fact that he had given the said cheques in question to the father of the complainant who had given the loan to his neighbour. He had not even disclosed the name of that neighbour on the earlier occasion. Therefore, the accused has constantly changed stands during the trial. Hence, his defence does not inspire confidence of this court.
16. Furthermore, the ld. Counsel for the accused had stated that the complainant had deliberately sent the legal notice to the accused on a wrong address. The said contention cannot be accepted as the legal notice was sent on the address "Sh. Rajkumar, S/o Sh. Ballu Singh Thekedar. R/o H.No. 238 & 249, Village Arthala, P.S. Sahibabad, Ghaziabad, U.P." and the said notice was duly delivered. Moreover, the court can always raise a presumption that the document if it is pre-paid and duly addressed, the same can be presumed to be duly delivered and the onus would be on the CC No. 6969/2018 Nawal Singh Nagar Vs Raj Kumar Page No. 14/ 19 recipient to show that he had not received the same. It is also pertinent to note that the accused when he was examined under section 315 Cr.P.C., he himself had stated that he was residing at H.no. 238, Arthala Mohan Nagar, Ghaziabad. Moreover, the contention that no notice was received by the accused cannot be accepted for the reason briefly explained by the Hon'ble Supreme Court in "C.C. Alavi Haji v. Palapatty Muhammed" 2007 (6) SCC 555 as:
"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 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 General Clauses Act and Section 114 of the Evidence Act."
Admittedly, no payment has been made in the present case by the accused even after receiving the summons of the present complaint under section 138 N.I. Act. Hence, the argument that no notice was ever received by the accused cannot be accepted at this stage.
17. Further, learned counsel of the accused has argued that since the curreny of Rs. 500/- and Rs. 1000/- in the year November, 2016, it would have been impossible for the complainant to give the huge amount, as CC No. 6969/2018 Nawal Singh Nagar Vs Raj Kumar Page No. 15/ 19 stated by him, in cash to the accused on loan. It is pertinent to note that the financial capacity of the complainant cannot be challenged by the accused, as the onus to prove that the cheques in question were not issued in lieu of a legally recoverable debt lies upon him by virtue of the reverse burden of proof under section 139 N.I. Act. The same was held by the Hon'ble Supreme Court in "Tedhi Singh vs. Narayan Dass Mahant" Criminal Appeal No. 362 of 2022 decided on 07.03.2022, wherein it was held that:
"At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent the Courts in our view were right in holding on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross examination of the witnesses of the complainant. Ultimately, it becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence."
18. During the cross-examination, the complainant was asked by the accused that from where he had arranged the said sum of Rs. 6.80L and whether it was shown in his ITR? The complainant had responded by saying that he does not file ITR in his personal capacity but for his Firm. He further stated that he had given the said loan to the accused on his CC No. 6969/2018 Nawal Singh Nagar Vs Raj Kumar Page No. 16/ 19 personal capacity, which he received after selling his share in the ancestral property for Rs. 8.12L. No further cross-examination was done of the complainant. Therefore, the complainant had given a plausible explanation from where he had arranged the said amount, which he had given as a loan to the accused. Now the burden was on the accused to rebut the presumption under section 139 N.I. Act and he has failed to rebut the same.
19. Further, it has been argued by the accused that he had given the said cheques as security cheques and the same have been misused by the complainant to file the present complaint. It has been explained by the Hon'ble Supreme Court in the case of "Suresh Chandra Goyal vs. Amit Singhal" (2015) SCC OnLine DEL 9459, wherein it was held that:
"28. There is no magic in the word "security cheque", such that, the moment the accused claims that the dishonoured cheque in respect whereof a complaint under Section 138 of the Act is preferred) was given as a "security cheque", the Magistrate would acquit the accused. The expression "security cheque" is not a statutorily defined expression in the NI Act. The NI Act does not per se carve out an exception in respect of a 'security cheque' to say that a complaint in respect of such a cheque would not be maintainable. There can be mirade situations in which the cheque issued by the accused may be called as security cheque, or may have been issued by way of a security, i.e. to provide an assurance or comfort to the drawee, that in case of failure of the primary consideration on the due date, or on the happening (or not happening) of a contingency, the security may be enforced.
61. Thus, in my view, it makes no difference whether, or not, there is an express understanding between the parties that the security may be enforced in the event of failure of the debtor to pay the debt or discharge other liability on the due date. Even if there is no such express agreement, the mere fact that the debtor has given a CC No. 6969/2018 Nawal Singh Nagar Vs Raj Kumar Page No. 17/ 19 security in the form of a post dated cheque or a current cheque with the agreement that it is a security for fulfillment of an obligation to be discharged on a future date itself, is sufficient to read into the arrangement, an agreement that in case of failure of the debtor to make payment on the due date, the security cheque may be presented for payment, i.e. for recovery of the due debt. If that were not so, there would be no purpose of obtaining a security cheque from the debtor. A security cheque is issued by the debtor so that the same may be presented for payment. Otherwise, it would not be a security cheque. As observed above, the MOU (Ex.CW-1/4) does not expressly, or even Impliedly states that the security cheques are not to be used to recover the installments, even in case of failure to pay the same by the respondent/ debtor.
62. Section 138 of NI Act does not distinguish between a cheque issued by the debtor in discharge of an existing debt or other liability, or a cheque issued as a security cheque on the premise that on the due future date the debt which shall have crystallized by then, shall be paid. So long as there is a debt existing, in respect whereof the cheque in question is issued, in my view, the same would attract Section 138 of NI Act in case of its dishonour."
20. Therefore, there is no presumption that if the cheques are given as security cheques, the same will be eschewed from consideration under section 138 N.I. Act. Hence, if the cheques are given in lieu of a legally recoverable debt and other conditions of section 138 NI Act are fulfulled, then even cheques given as security cheques will attract the liability under the said section. Moreover, even if the said cheques were misused by the complainant to file the present complaint, the complainant had not filed any complaint for the misuse of the said cheques or had brought any material on record that he had asked the complainant to return the said cheques. For the reasons stated, the argument of the ld. Counsel for the CC No. 6969/2018 Nawal Singh Nagar Vs Raj Kumar Page No. 18/ 19 accused cannot be accepted.
21. In the present case, I find that accused has failed to rebut the presumption raised against him under section 139 N.I. Act. The signature on the cheque has not been disputed by the accused. The accused had changed the course of his defence throughout the trial, however, he has not been able to prove the same and the defence that the said cheques were given in blank to him as security cheques has not been proved by the accused. The words 'unless the contrary is proved' which occur in S. 138 NI Act make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. It is a duty cast upon the accused to lead cogent and plausible evidence to rebut the presumption that the cheque was issued against some existing liability or debt. Thus, perusal of all the evidences placed on record by the complainant and by the accused, I find that the accused had given a cheque bearing numbers 000127, 000128 and 000129 dated 20.03.2018, 10.04.2018 and 15.05.2018 respectively which were dishonoured and the accused has failed to pay the same despite receiving the legal notice and therefore, I find the accused guilty of the offence established under section 138 Negotiable instruments Act.
DECISION
22. Resultantly, the accused is convicted of the offence under section 138 NI Act.
23. Copy of this judgment be given free of cost to the accused.
24. File be consigned to the record room.
Announced in the Open Court (RISHABH TANWAR)
on 28th Day of September, 2022 Metropolitan Magistrate09,
Saket Courts /New Delhi/ 28.09.2022
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