Delhi District Court
Sh. Ashok Sharma vs . Sh. Jawahar Singh on 13 February, 2023
IN THE COURT OF DR. SATINDER KUMAR GAUTAM PRESIDING
OFFICER SPECIAL COURT(NI ACT) SOUTH WEST, DWARKA
CC NO. 21883/2018
CNR No. DLSW02-021888/2018
SH. ASHOK SHARMA Vs. SH. JAWAHAR SINGH
Complaint u/s 138/142 of Negotiable Instruments Act,1881
PS. DABRI
1. Name and particulars
of the complainant : Sh. Ashok Sharma s/o
Sh.Dev Narayan,R/O C-36,
J.J .Colony, Bindapur, Near
Community Hall, New Delhi
110059.
2. Name and particulars of accused :Sh. Jawahar Singh S/o Late
Sh. Kamal Singh R/o Jhuggi
No. C-125, Pocket-4, J.J.
Colony, Bindapur, Uttam
Nagar, New Delhi -110001.
3. Offence complained of : U/s 138 of Negotiatble
Instrument Act, 1881
4. Date of Institution of case : 21.05.2018
5. Plea of accused : Pleaded not guilty
CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.1/ 24
6. Final Order : convicted
7. Date of such order : 13.02.2023.
JUDGMENT
1. The gist of the complaint of the complainant are that the accused approached for a friendly loan of Rs.8,50,000/- for personal need for period of 8 months. Considering the request and friendship of accused, complainant gave Rs.8,50,000/- to the accused in May 2017 without interest. After expiry of 8 months, the complainant asked the accused to repay the loan amount and the accused in discharge of his above said debt issued four post dated cheque bearing no. 532010 dated 31.1.2018 and cheque bearing no 532011 dated 15.02.2018 and cheque no. 532012 dated 28.2.2018 of Rs.2,00,000/- each and cheque no. 532013 dated 15.3.2018 of Rs. 2,50,000/- in favour of the complainant for repayment of the loan amount.
2. As per assurance / promises of accused, the complainant presented two cheuqes bearing no. 532010 and 53211 of Rs. 2 lac each which were returned unpaid with remarks "Payment stopped by Drawer" vide two bank returning memos dated 20.02.2018. Thereafter, the complainnat also prsented other cheques involved in the present case bearing no. 532012 of Rs 2 lac dated 28.2.2018 and cheque no. .532013 dated 15.03.2018 of Rs. 2.50,000/- but the same was also received unpaid with return memo dated 17.03.2018 with remarks " Fund insufficent"
CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.2/ 243. Thereafter, complainant sent a legal demand notice dt. 28.04.2018 which was duly served upon the accused but accused failed and neglected to pay the cheque amount. Hence, the present complaint filed by the complainant on 18.5.2018.
SUMMONING ORDER
4. Vide order dated 21.05.2018, after considering pre-summoning evidence of the complainant and document as relied upon, the accused was summoned to face trial u/s 138 NI Act.
5. On 28.02.2019, notice u/s 251 Cr.PC was framed against the accused to which accused pleaded not guilty and claimed trial stating that he did not give the cheque in question to the complainant. On 15.09.2017, he misplaced some of his belonging including a cheque book having some signed cheques. He also made a police complaint in this regard on 26.9.2017. He has no liability towards the complainant and the complainant misused the cheque. Further he stated that he know the complainant as he is residing in his neighborhood.
6. On oral request of the counsel of accused, application u/s 145 (2) NI Act was allowed to cross examine the complainant. Thereafter the matter was listed for complainant evidence. The complainant in order to prove its case, examined himself as CW1 and dropped witness no. 2 and 3 from the array of list of witnesses and closed his complainant evidence.CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.3/ 24
7. Complainant as CW1 adopted his pre-summoning evidence and was cross examined by the accused. During cross examination, CW1 stated that is running a grocery shop from which his monthly income is 10-15000/-p.m and beside this, Rs.18,000/- came from rental income. He resides in 25 sq yards house which is four storey building. His monthly expenses is Rs 5000/-. He is having two sons and two daughter and his both sons are working. He further stated that he is BPL card holder and the land has been allotted to him through rehabilitation of JJ Slum. He had arranged Rs.3.5 lacs after purchasing committee and amount of Rs.5 lacs given to him by his nephew in cash. He no agreement nor any receipt was executed at the time of advancing loan to the accused. CW1 further testified that his nephew use to ask his Rs5lac every day and his land of village is in the custody of his nephew. He further stated that he has two account one in HDFC bank having balance of Rs.60 to 70,000/- and other Allahabad bank having balance of Rs.3 to 5,000/- and no paper was executed at the time of taking Rs.5 lac from his nephew. CW1 denied that he is not having financial capacity of 3.5 lacs to advance it to the accused. CW1 further testified that he never advanced anything to accused prior to this loan however, he admitted that one case u/s 138 NI Act was pending between him and accused in THC which was later settled. CW1 further testified that he had advanced the loan, in cash for 8 months without interest after arranging the same from his savings and after taking from his nephew, to the accused for his creditors but he do not know the names of creditors of accused. He further deposed that he had put the cheque for encashment after consulting the accused to which the accused said to wait for some more time. CW1 denied that he misused the misplaced cheque of the accused or that he did not advance any loan to the accused.CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.4/ 24
8. Thereafter, on application u/s 311 cr.p.c, the complainant examined CW2 Sh. Halke Ram, nephew of complainant. CW2 deposed on the line of complainant that in 2017 in the month of April, his uncle Ashok Sharma had asked Rs.5 lakhs for his personal needs and he had given Rs.4,80,000/- through Kisan Credit card and rest from his personal savings but till date the amount is due from kisan Credit card.
During cross- examination, CW2 stated that the complainant is not his real uncle and he do not remember exact date, when he withdrew the money from Kisan Credit card for giving it to complainant and stated that he withdraw it in 2-3 installments. Due to no repaid, notice in the form of SMS was received from Kisan credit card but neither any complaint is pending against him for not repayment of Kishan credit nor any legal notice was received in this regard. He further deposed that no document was executed at the time of advancing loan to the complainant nor any witness was present at the time of advancing money to the complainant. CW2 admitted that he has deposed at the behest of complainant . Thereafter, matter was listed for statement of accused.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE.
9. On 08.4.2021, statement of accused u/s 313 cr.p.c wherein he took consistent plea that he did not issue any cheque to the complainant and the complainant misused his missing cheques of which he had lodged on line police complaint and also issued instruction to his hand regarding misplacing of cheques. Further, stated that he do not remember whether he had received any legal notice as he CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.5/ 24 has not to pay anything to the complainant nor taken any loan from him, so he did not pay anything to the complainant. He further stated that the cheques bears his signature but did not fill other particulars. The accused opted to lead defence evidence.
10. The accused in order to prove his case examined DW1 Sh. Ankit Kumar, Manager of Canara Bank who brought the summoned record i.e statement of account of the accused bank from the period 1.2.2018 till 31.12.2018 and proved the same as Ex. DW1/1 and statement of accused for the period of 21.9.2017 to 31.12.2017 showing the imposition of charges upon the account holder for issuing instructions from clearance of the cheque and proved the same as Ex. DW1/2. DW1 also placed on record screen shot of the cheque stoppage instruction received from the account holder mentioning details of the cheque for which the stop instruction were issued on 21.9.2017 vide Ex.DW1/3.
During cross examination DW1 stated that he has no knowledge of the present case and testified that on receiving instruction from any account holder with respect to cheque issued by him, the same is processed and same is implemented on the same date without any delay and after the process of request a confirmation SMS has been sent to the account holder who has issued the cheque for encashment. Further DW1 testified that as per banking procedure , they do not ask for any police complaint/copy of NCR/copy of FIR from the drawer of the cheque to process the request of stop clearance of cheque. Thereafter, defence evidence was closed on the statement of counsel of accused on 24.5.2022 and matter was listed for final arguments.CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.6/ 24
11. Final arguments heard and gone through the material on record and relevant law as well as judgment too.
PLEA OF COMPLAINANT
12. Ld. Counsel for accused contended that the complainant filed two cases u/s 138 Negotiable Instrument Act (herein after referred as NI Act) on the basis of 4 cheques bearing no. 532010 dated 31.01.2018, cheque no. 53211 dated 15.02.2018 of Rs. 2,00,000/- each in the present case and cheque bearing no. 532012 dated 28.2.2018 of Rs. 2Lac and cheque no. 532013 of Rs. 2 lac ( total amount of Rs.8,50,000/- ). Ld. Counsel for complainant further contended that as per averments made by the complainant in his complaint that accused approached him in May 2017 for taking friendly loan of Rs.8.50,000/- with promise to return the same after 8 months and considering request, the complainant advanced the same in the month of May,2017. It is further contended that the complainant stated in his statement as CW1 that he had taken Rs.5 lac from his nephew Halke Ram and thereafter, the complainant examined Halke Ram as CW2 after allowing application u/s 311 cr.p.c only to fill up the lacuna. It is further contended CW1 deposed in his cross that he had arranged Rs.3,50,000/- from his saving and Rs. 5Lac after taking from his nephew lateron he stated that he had arranged Rs.3.50,000/- after purchasing committee. It shows that the complainant is not sure whether he arranged the amount from his saving or purchasing committee. As per statement of CW2, he had given Rs.4.80 lac from Kisan Credit Card in the month of April 2017 I.e prior to advancing loan to the accused as, complainant deposed that he had advanced loan to the accused CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.7/ 24 in May, 2017. When complainant taken amount of Rs.5 lacs from CW2 for his personal need then how can he grant loan to the accused. Complainant did not depose anywhere that he had taken the money from his nephew in April 2017 for advancing the same to the accused. Even, CW2 has also given two contradictory statement stating that he had withdrawn the money in 2-3 installments but did not remember date when he withdraw the same. Neither complainant nor CW2 filed any statement of account to show when the money was withdrawn by him for advancing loan to his uncle. On the other side, accused proved the fact by examining DW1 who deposed that stop payment instructions was given by accused on 21.9.2017 it means that in the month of January, the accused was not in position to issue the cheques in favour of the complainant, it also means that complainant misused the lost cheques of the accused for getting money. As per deposition of complainant, in one account of HDFC he was having balance amount of 60 to 70 thousand and in other account of Allahamd, he was having only 3,000/- to 5,000/- however, complainant did not brought on record his statement of account of either of two bank account to show from which account he had withdraw the amount to advance the loan to the accused. It is contented that the accused has proved that after missing his cheque book, he gave instruction to the bank for stopping the payment of the lost cheques and this fact has also been corroborated by DW1 bank official who deposed regarding receiving instruction to stop payment on 21.9.2017. The version is also corroborated with the cheque returning memo which was received with remarks" payment stopped by drawer" When bank had already received instruction for stopping the payment against lost cheque, the accused could not issue the cheques in question in favour of complainant. So far as legal notice CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.8/ 24 sent to accused is concerned, there is no tracking report of the said legal notice regarding delivered or not is on record. Only sent a legal notice to a person cannot be count that it is served. Even CW2 did not file any statement of account of Kisan Credit to show that he had in fact withdrawn the amount and given to the complainant as CW2 himself stated that no receipt/agreement was executed in between complainant and himself nor it was repaid till date nor he had given notice for repayment. CW2 himself stated that he is deposing at the behest of complainant, Thus his version is not reliable and the complainant failed to prove that he infact had given loan amount to the accused after taking Rs.5 lac from CW2. CW2 also did not file any document to show that he had taken loan of Rs.480,000/- from Kisan Vikas Patra and till date the same is not repaid. It means neither CW2 had taken any loan of Rs.4,80,000/-from Kisan Vikas Patra nor given to the complainant, as such, no question of advancing any loan to the accused by complainant is arise. The complainant is also not sure whether he had obtained Rs.3.5 lacs by purchasing committee or arranged from personal saving. It is further contended no document was executed either by the complainant while giving the alleged loan nor by CW2 by giving loan to the complainant even after taking loan from Kisan Vikas Patra and this fact was not disclosed in his complaint nor in pre-sumoning evidence. It was disclosed on seeking clarification during his cross examination and in order to fill lacuna, thereafter he filed application u/s 311 cr.p.c and examined CW2. Even CW2 has himself stated that he is deposing on the asking of complainant and he also did not execute any loan document nor the said loan is repaid till date. He even did not receive any demand notice from Kisan Vikas Patra side though, it is till date not paid. All these fact shows that complainant did not advance any loan to the CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.9/ 24 accused nor complainant took any money from CW2 and the accused issued the cheques in question after 8 months of taking loan , which is not reliable . It also shows that the complainant misused the lost cheques of the accused.
13. Ld. Counsel for accused also relied on judgments such as Somnath Biswas Vs. State of Jharkhand & Anr Cr. MP No 2393 of 2017 dated 07.2.2018, Pushpa Devi Vs. Sushila Crl. LP No.324/2018 dated 14.5.2018, Inderjit Narula & Anr Vs. Rohit dua & Ors dated 28.1.2015 of Delhi High Court, Steel Authority of India Ltd. Vs. State & Ors dated 25.11.2014 Crl. Appeal 147/2009 and many others and it is prayed that the accused has proved his case in toto.
CONTENTION OF COMPLAINANT.
14. Per contra, Ld. Counsel for complainant submits that the accused admitted his signature on the cheque in question in response to the notice u/s 251 as well as in statement u/s 313 read with 281 cr.p.c and also admitted address on legal notice. Accused took consistent plela that he had not taken any loan . The accused also took plea that his belonging were lost including cheque book having the cheques in question and he made a police report but the accused did not produce any FIR/complaint on record nor any witness in this regard was examined. It is contended that cheques bearing no. 532013 dt.15.3.2018 for sum of Rs.2,50,000/- and chaeque bearing no. 532012 dated 28.02.2018 of Rs 2,00,000/- drawn on Canara Bank, R K Puram Branch New Delhi also also having serial number of the same cheque book which were lost by the accused, as CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.10/ 24 per his version but the same were issued to other persons also. It is further cotended that the accused used to apply for issuance of new cheque book and later on used to direct to the concern bank for stopping payment of the cheque issued by him to different borrower. DW1 also deposed about procedure of banking rule while passing the cheque for encashment that after the process of request a confirmation SMS has been sent to the account holder, who had issued the cheque for encashment. In the present case, DW1 proved document Ex. DW1/3 with regarding to stop instruction given by accused shows on 21.9.2017 by which he got stop payment of cheque bearing no. 532004 to 523013 including cheques issued in favour of complainant and further perusal of letter dated 24.1.2022 received from the bank mentioned the cheque numbers of stop payments shows that there were two cheque books out of which payment was got stop by accused which clearly shows that accused is habitual to give instruction of stopping the payment of the cheques issued by him in order to prevent himself from liability. The accused also did not dispute his address mentioned on the legal notice. Thus, the complainant has proved its case and prayed that the accused may be convicted in accordance with law.
15. Having heard the arguments and considering the rival contention as well as material on record and judgment cited.
16. Ld. Counsel for complainant has also placed strength on the decision of judgement pronounced in case Bir Singh Vs Mukesh , (2019) 4 SCC 197 Section 20 NI Act 1981 says that :CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.11/ 24
" 36. The propositionn 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.
37.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 chaeque 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 libility. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the ceque is duly signed by 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.
38. 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 iteself would not invalidate the 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.CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.12/ 24
39. It is not the case of the respondent- accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative.
40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section139 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.
41. The fact that the appellant- complainant might have been an Income Tax practitioner conversant with knowledge of law does not make any difference to the law relating to the dishonour of a cheque. The fact that the loan may not have been advanced by a chaeque or demand draft or a receipt might not have been obtained would make no difference. In this context, it would, perhaps, not be out of context to note that the fact that the respondent- accused should have given or signed blank cheque to the appellant- complainant , as claimed by the respondent- accused, shows that initially there was mutual trust and faith between them.CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.13/ 24
42. In the absence of any finding that the cheque in question was not signed by the respondent- accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant- complainant, it may reasonably be presumed that the cheque was filled in by the appellant- complainaint being the payee in the presence of the respondent -accused being the drawer, at his request and / or with his acqiescence. The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of the payee. The High court ought not to have acquitted the respondent- accused of the charge under Section1 38 of the Negotiable Instruments Act.
43. In our considered opinion , the High Court patently erred in holding that the burden was on the appellant- complainant to prove that he had advanced the loan and he blank signed cheque wasa given to him in repayment of the same. The finding of the High Court that the case of the appellant- complainant became highly doubtful or not beyond reasonable doubt is patently erroneous for the reasons discussed above.
If a person gives a duly signed cheque which is either blank or partly filled then he is deemed to have given implied authority to the holder to fill up he particulars in it and complete the cheque, thus making the drawer liable for the payment CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.14/ 24 mentioned in it. 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."
17. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Section 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 cheuqe is duly signed by the drawer. If the cheque is otherwise valid, the penal provisiions of Section 138 would be attracted.
18. As per the contention of the complainant, accused did not come forward for his cross examination by the complainant. The accused admitted that cheques bears his signature as his a cheque book was lost and cheque in question are of the said cheque book whose payment was got stop by him by giving online instruction to police and bank. DW1 Bank official who proved bank statement of account regarding the number of cheques which were got stop by the accused by sending the SMS. He also proved the SMS. However, on perusal of document Ex. DW1/1 to EX DW1/3 do not help the accused but on the contrary it shows that the accused was habitual for the payment stopped frequently. On the other hand, the complainant proved that the cheques bears signature of accused and CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.15/ 24 also proved the legal notice as, address mentioned on the same is not disputed. The complainant proved the postal receipt of sending the legal notice.
19. In order to bring home a liability under section 138 of NI Act, 1881, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, viz.
1. A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability;
2. The cheque has been presented to the bank within a period of three months from the date mentioned on the cheque or within the period of its validity, whichever is earlier;
3. The cheque is returned by the bank unpaid either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
4. The payee or the holder in due course of the cheque makes a demand for the payment of teh said maount of money by giving a notice in writing to the drawer of the cheque within 40 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
5. The drawer of such cheque fails to make the payment to the payee or the holder in due course of the cheque within 15 days of the receipt of the notice.
20. Accused took consistent plea that he has not taken loan of Rs. 4,00,000/- from the complainant . He also took plea that particulars on the CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.16/ 24 impugned cheque were not filled by him though he admitted that it bears his signature and stated his cheque book was misplaced and the complainant misused the signed cheques in question.
21. The accused has categorically admitted in his statement u/s 313 Cr.P.C that the cheques in question bears his signature. The accused admitted the geninuiness of the documents i.e cheque and postal documents. The accused has taken a consistent stand that he had not taken loan and the complainant has misused the lost signed cheques in question The complainant is not capable for advacing the loan as he is BPL Card holder and having rehabilitation home. On the other hand, complainant contended that the accusued has also settled in one case of u/s 138 NI Act and therefore, the accused has not rebutt the presumption drive under section 139 NI Act.
LEGAL NOTICE
22. As per Section 27 of the General Clauses Act which provides that service of any document sent by post, shall be deemed to be effected by properly addressing, pre¬paying and posting by registered post, a letter containing the document unless the contrary is proved. A presumption is also carved out under section 114 Indian Evidence Act, 1872 which applied to communications sent by post, enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. A bare denial by the accused in his notice of accusation and in his examination u/s 313 read with section.281 Cr.P.C. would not assume the character of defence CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.17/ 24 evidence, as held in V.S. Yadav v. Reena CRL. A. No. 1136 Of 2010. Hence, the accused has not been able to rebut the presumption of service of legal demand notice. Resultantly, that the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice. Therefore, the presumption of law u/s 27 of the General Clauses Act and 114 of Indian Evidence Act goes against the accused and same contention is without any force.
23. The accused in his statement u/s 313 cr.p.c accused stated that he do not rememebr whether legal notice was received or not and did not dispute the address mentioned on it and witness examined in defence by the accused also could not help him. However, the documents which DW1 proved shows the habit of accused and there is every possibility that accused in order save himself and preventing him from liability he used to got stopped the payment of the cheques. So far as legal notice is concerned, accused admitted the correctness of its address as such presumption u/s 114 of Indian Evidence Act 1872 and Section 27 of the General Clauses Act draw the presumption against the accused as the same is not rebutted.
Relied upon the judgement cite as In C.C.Alavi Haji vs Palapetty Muhammad (2007) 6 SCC 555 it was held by the Hon'ble Supreme Court:
"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 CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.18/ 24 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 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 legislation."
24. Section 118 (a) of The Negotiable Instruments Act, 1881 provides as under:
"Section 118 Presumption as to negotiable instruments - Untill the contrary is proved , the following presumption shall be made:-
(a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, was indorsed, negotiated or transferred for consideration,...."
Section 139 of The Negotiable Instruments Act, 1881 provides as under:-
CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.19/ 24"... Section 139 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...."
25. In a landmark judgment passed on 09.04.2019 by a Division Bench of the Hon'ble Supreme Cour in Basalingappa vs Mudibasapp Criminal Appeal No. 636 of 2019 it was held that "...when the accused proves a probable defence, the reverse onus of proof shifts the burden on the complainant who is bound to explain his financial capacity and the transaction of loan advanced....."
STOP PAYMENT AND LOSS/ THEFT OF CHEQUES
26. In cases where cheque is dishonoured due to reason of 'stop payment' defence can be raised that cheque was either stolen or lost or it was issued under coercion.
Law is settled that when the cheque is dishonoured by reason of 'stop- payment' instructions, the Court still has to presume under Section 139 that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. This however, a rebuttable presumption. The accused can show that the 'stop payment' instructions were not issued because of insufficiency or paucity of funds but for other valid causes including that there was no existing CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.20/ 24 debt or liability at the time of presentation of cheque for encashment, then offence under section 138 Ni Act would not be made out. In this regard reliance can be placed on Modi Cements Ltd. Vs. Kuchil Kumar Nandi,(1998) 3 SCC
249. The important thing however is that the burden of proving so would be on the accused.
Accused can discharge his burden by examining police witnesses where such complaint was made to concerned police station or any other witnesses who can corroborate his version. However, in the instant case, the accused has neither examined himself nor any police official or any other independent person who can support the contention, otherwise it is based on conjuncture which is formed in absence of any cogent evidence. Accused has not furnished any complaint nor any photocopy /Internet generated copy to this effect. DW1/Manager, Canara Bank also stated during his cross-examination that the do not ask for any police complaint/copy of NCR/copy of FIR from the drawer of the cheque to process the request of stop clearance of cheque. Even in his application u/s. 311 CrPC, accused has not anything with regard to the same. Hence the said contention is based on surmices and conjuncture and seems to be an after thought.
FINANCIAL CAPACITY OF PAYEE
27. In cases where cheque is issued for repayment of loans, defence is generally raised that complainant did not have financial capacity to advance loan as alleged.
Complainant need not show his financial capacity in a case under Section 138 NI Act unless it is disputed by the accused. However, the accused has the CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.21/ 24 right to demonstrate that the complainant in a particular case did not have the capacity, which he can do by producing independent materials, namely, by examining his witness and producing documents. It is also open to him to establish this 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. In this regard reliance can be placed on Tedhi Singh Vs. Narayan Dass Mahant, 2022 SCC on Lissne SC-
302. The complainant has given the details of some and part for himself and CW02. It is also revealed in his cross-examination as CW-1 that accused has settled one of the matter with complainant pending in Tis Hazari Court.
So far as ITR, Sectio 26955 of IT Act, mandates that no person pay more than Rs.20,000/- in cash. Onus is upon the accused to show that the cash loan was infact never advanced in view of judgment of Dilip Chawla v. Ravinder Kumar, 2017 SCC OnLine Del 9753.
28. It stand established on record in the form of evidence of the complainant, documents exhibited in evidence, admission of accused during accusations explained to him, and statement of accused recorded u/s 313 Cr.P.C that the accused has liability of cheque amount towards the complainant. The complainant has been able to prove his case that the cheques in questions were issued by the accused for discharge of his legally enforceable liability as on the date of the cheque and hence, the foremost ingredients of offence punishable u/s 138 of NI Act has been proved beyound reasonable doubt against the accused.
CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.22/ 2429. The another condition pertains to the return of the cheque as unpaid owing to their being dishonoured. Section 146 of The Negotiable Instruments Act, 1881, in this regard comes into play which raises a presumption that the court shall presume the fact of dishonor of the cheque in case the cheque is returned vide a return memo having thereon the official mark denoting that the cheque has been dishonored. Such bank slip or memo is a prima facie proof of dishonour. At the cost of repetition, the defence has failed to rebut the said presumption as well. Hence, the condition is fulfilled.
30. As far as the making of demand by sending a legal notice is concerned the complainant had sent the same, Ex.CW1/E, to the accused who chose not to reply to the same despite due service thereof, thus, implying the satisfaction of the fourth condition. The fact of non-reply to the legal notice despite service reeks of culpability on the part of the accused.
31. The last condition is that the accused fails to make the payment within fifteen days from the date of receipt of the legal notice. In the present case, the accused has evidently failed to make the payment within 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.
32. Finally having considered the totality of the facts and circumstances of the case, the presumption spelled under section 139, the law enunciated under section 138 and the judgments cited at bar, the offence under section 138 of the Negotiable Instruments Act is made out against the accused Jawahar Singh. The weight of the evidence adduced by the complainant to prove his case against the CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.23/ 24 accused is sufficient enough to impute criminality on him. The complainant has discharged his burden to prove his case against the accused beyond all reasonable doubts. The accused Jawahar Singh s/o Late Sh. Kamal Singh is accordingly convicted of the offence under section 138 of the Negotiable Instruments Act ANNOUNCED IN THE OPEN COURT 13th day of February, 2023 (DR. SATINDER KUMAR GAUTAM) SPECIAL COURT (NI ACT) SOUTH-WEST, DWARKA 13.02.2023 CC NO. 21883/2018 Ashok Sharma Vs. Jawahar Singh Page No.24/ 24