Delhi District Court
Digitally Signed By vs . Bratindranath Banerjee (2001) 6 Scc ... on 17 January, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE (CENTRAL) NI
ACT-04, CENTRAL DISTRICT, TIS HAZARI COURT, DELHI.
Presided over by: - Ms. Kratika Chaturvedi, DJS
CC No. 528587/2016
Unique case ID No. DLCT020034302013
In the matter of:-
Sh. Ravinder Kumar Aggarwal
S/o Sh. Laxmi Chand
R/o B-678, Avantika, Sector-1, Rohini, Delhi.
......Complainant
Versus
Ms. Kahkashan @ Seema
R/o T-592, Gali No. 11,
Gautampuri, Seelampur, Delhi-53
Also at:-
10, Dewan Hall, 2nd Floor, Near Dispensary,
Bhagirath Place, Chandni Chowk,
Delhi-06
....... Accused
CC No. 528587/2016 Ravinder Kumar Aggarwal v. Kahakahsan @ Seema Page 1 of 20
KRATIKA Digitally signed by
KRATIKA
CHATURVE CHATURVEDI
Date: 2022.01.17
DI 15:15:44 +05'30'
Date of Institution : 21.10.2013
Offence complained of : Section 138 Negotiable
or proved Instrument Act, 1881
Plea of Accused : Not guilty
Date of Filing : 11.10.2013
Date of Decision : 17.01.2022
Final Order : Convicted
Argued by:- : Mr. Rajesh Bhatia, Ld. Counsel for
complainant.
: Mr. R.P. Sharma, Ld. Counsel for
accused.
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION: -
FACTUAL MATRIX-
1. The present complaint has been filed by the complainant, Sh. Ravinder Kumar Aggarwal against the accused, Ms. Kahakashan @ Seema under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act"). The substance of allegations and assertions of the complainant is that the accused had approached the complainant for a friendly loan of Rs. 50,000/- in the month of May 2012 for a period of one year as there were friendly relations between the complainant and accused. After the expiry of one year, the complainant requested the accused to repay the loan amount, the accused had issued cheque bearing no. 218375 dated 01.07.2013 for Rs. 50,000/- drawn on ICICI Bank, Chandni Chowk, Delhi (hereinafter referred to as the "cheque in CC No. 528587/2016 Ravinder Kumar Aggarwal v. Kahakahsan @ Seema Page 2 of 20 KRATIKA Digitally signed by KRATIKA CHATURVEDI CHATURVED Date: 2022.01.17 I 15:15:25 +05'30' question") with the assurance that the said cheque would be duly honoured after its presentation, however the said cheque in question was returned dishonoured on presenting with the remarks "funds insufficient"
vide return memo dated 04.09.2013. The complainant thereafter issued a legal demand notice dated 10.09.2013 for the cheques in question which were duly served upon the accused. Despite service, the accused failed to repay the cheque amount within the stipulated period and hence, the present complaint has been filed under section 138 of the NI Act.
APPEARANCE OF ACCUSED AND TRIAL
2. On finding a prima facie case against the accused, the accused was summoned to face trial and after his appearance, notice of accusation under Section 251, Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") was framed against the accused on 07.07.2015. In reply to the notice of accusation, the accused pleaded not guilty and claimed trial. The accused had stated that, "I have taken a loan of Rs. 30,000/- from Mr. Sunil Kumar in December 2012. I have never taken any loan from the complainant. The cheque was given to Mr. Sunil Kumar at the time of taking loan from him. I have repaid the loan taken from Mr. Sunil Kumar. The cheque was not returned by Mr. Sunil Kumar despite my requests. I have repaid the loan in September 2013 itself. I want to lead defence evidence".
3. Vide order dated 07.07.2015, the Ld. Counsel for complainant has raised no objection if the accused is granted an opportunity to cross-examine the complainant and vide the said order, the accused was allowed to cross-
CC No. 528587/2016 Ravinder Kumar Aggarwal v. Kahakahsan @ Seema Page 3 of 20KRATIKA Digitally KRATIKA signed by CHATURVE CHATURVEDI Date: 2022.01.17 DI 15:15:08 +05'30' examine the complainant and the cross-examination of the complainant was closed vide order dated 17.09.2019.
4. During the trial, the complainant has led the following oral and documentary evidence against the accused to prove his case beyond reasonable doubt-:
ORAL EVIDENCE CW 1 : Sh. Ravinder Kumar Aggarwal (Complainant) DOCUMENTARY EVIDENCE Ex. CW1/1 : Cheque bearing no. 218375 dated 01.07.2013 for Rs. 50,000/-
Ex. CW1/2 : Deposit Slip
Ex. CW1/3 : Return memo dated 04.09.2012
Ex. CW1/4 : Legal demand notice dated 10.09.2013
Ex. CW1/6 : A.D. Card
Ex. CW1/7 : Promissory note
Ex. CWA/8 : Receipt
5. Before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded without oath under Section 313(1)(b) of the CrPC on 13.12.2019. In reply, the accused had stated that a blank signed cheque was given by her to one Sh. Sunil Bharija, landlord of the complainant as he was running a chit fund and she was a member of that chit fund. She further stated that the cheque in CC No. 528587/2016 Ravinder Kumar Aggarwal v. Kahakahsan @ Seema Page 4 of 20 Digitally signed by KRATIKA KRATIKA CHATURVEDI CHATURVEDI Date: 2022.01.17 15:14:52 +05'30' question was not given to the complainant and that she does not know how the complainant obtained the cheque from Sh. Sunil Bharija. She further stated that she has no liability towards the complainant and that the complainant has filed the false case against her as she never had any friendly relations with the complainant.
6. The accused did not lead defence evidence and thereafter, the matter was accordingly listed for final arguments.
7. The final arguments were addressed by the Ld. Counsels for complainant and the accused. I have heard the Ld. counsels appearing for both the parties and have given my thoughtful consideration to the material appearing on record.
ARGUMENTS-
8. The Ld. Counsel on behalf of the complainant had argued that the ingredients to the offence under section 138 NI Act are fulfilled and the complainant has duly proved its case. He had argued that once the signature on the cheque in question is admitted by the accused, a presumption of a legally enforceable debt has arisen in favour of the complainant and now it is for the accused to rebut the said presumption. He has placed reliance upon the judgment of Hon'ble Apex Court, Rangappa v. Sri Mohan 2010 (3) R.C.R. (Criminal) 164, wherein the court has observed as under, "This court held that once issuance of a cheque and signature hereon are admitted, presumption of a legally enforceable debt in favour of the holder of the cheque arises. It is for the accused to rebut the said presumption, though accused need not adduce his CC No. 528587/2016 Ravinder Kumar Aggarwal v. Kahakahsan @ Seema Page 5 of 20 KRATIKA Digitally signed by KRATIKA CHATURV CHATURVEDI Date: 2022.01.17 EDI 15:14:35 +05'30' own evidence and can rely upon the material submitted by the complainant. However, mere statement of the accused may not be sufficient to rebut the said presumption."
9. The Ld. Counsel for the complainant argued that the onus to discharge the said presumption is upon the accused. He further argued that the accused has failed to explain as to how the possession of cheque came in the hands of the complainant. He further argued that the legal notice has been validly served upon the accused as the AD card bears the signature of the accused and thus presumption is raised under section 27 of General Clauses Act. The Ld. Counsel for the complainant has also argued that the accused has failed to lead sufficient evidence as she has not called her material witness, i.e., Mr. Sunil Kumar from whom the loan was allegedly obtained by the accused. He has further argued that both the promissory note vide Ex. CW1/7 and Ex. CW1/8 bears the signature of the accused, which shows that loan was given to the accused by the complainant. The Ld. Counsel for the complainant has placed his reliance on the judgment of the Hon'ble Supreme Court in the case of Bir Singh v. Mukesh Kumar 2019 (4) SCC 197, wherein it has been held that the onus will be upon the accused to prove that the cheque was not issued for any legal liability or debt once the accused admits the signature on the cheque even though other particulars are not filled up by the accused.
10. As such, the Ld. Counsel for the complainant prays that the accused be convicted for the offence under section 138 of NI Act.
11. Per contra, the Ld. Counsel for the accused had argued that there exists no legal liability towards the complainant as the complainant has failed to CC No. 528587/2016 Ravinder Kumar Aggarwal v. Kahakahsan @ Seema Page 6 of 20 KRATIKA Digitally signed by KRATIKA CHATURVE CHATURVEDI Date: 2022.01.17 DI 15:14:18 +05'30' explain as to when the friendly loan was advanced to the accused. He further submitted that the complaint is silent about the mode of payment of loan to the accused. He further submitted that the complainant in his cross-examination has stated that the loan amount was given by way of a cheque while as per the promissory note and receipt vide Ex. CW1/7 and Ex. CW1/8, the loan amount was given by way of cash. He also argued that the complainant in his cross-examination has stated that the accused had written the receipt in her own handwriting, however, no handwritten receipt has been placed on record. He further submitted that as complainant's cross-examination, the loan of Rs. 50,000/- has been shown in the ITR for the period 2012-13, which he has failed to produce before the court. He further submitted that the complainant has taken a contradictory stand as he has denied the presence of any person during the loan transaction while the receipt mentions the name of the two witnesses, namely, Mr. Yashwant and Mr. Narender.
12. The Ld. Counsel for the accused has placed on record the judgment of the Bombay High Court in the case of Roy Joseph Creado & Ors. v. Sk. Tamisuddin & Ors. 2008 Cri.L.J. 1509, wherein it has been held that the complaint is defective in nature if the same if it is not signed by the payee/holder of the cheque. He has further placed on record the judgment of the Bombay High Court in the case of Santosh Manikrao Gundale v. Rameshwar Wamanrao & Anr. IV (2007) BC 211, wherein it has been held that presumption under section 139 of NI Act stands rebutted wherein the complainant fails to mention the date of advance of loan and date of issuance of cheque in his complaint. He has also placed on record the judgment of the Karnataka High Court in the case of B.P. CC No. 528587/2016 Ravinder Kumar Aggarwal v. Kahakahsan @ Seema Page 7 of 20 Digitally signed by KRATIKA KRATIKA CHATURVEDI CHATURVEDI Date: 2022.01.17 15:14:02 +05'30' Venkatesulu v. K.P. Mani 2001 Cri. L.J. 745, wherein it has been held that material legal infirmities in complainant's story effectively displaces and successfully rebuts the presumption under section 139 of NI Act available in favour of existence of debt or liability against the accused. The Ld. Counsel for the complainant has also placed on record the judgment of the Hon'ble Supreme Court in the case of John K. Abraham v. Simon C. Abraham & Another (2014) 2 SCC 236, wherein it has been held that, "... in order to draw the presumption under section 118 read alongwith section 139 of NI Act, the burden was heavily upon the complainant to have shown that he had the required funds for having advanced money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant."
13. The Ld. Counsel for the complainant further argued that the accused has not received any legal notice and there is no postal receipt on record relating to the service of the legal notice, so the case under section 138 of NI Act is not made out. The Ld. Counsel for the accused has placed reliance upon the judgment of the Hon'ble Supreme Court of India in the case of Harman Electronics (P) Ltd. & Anr. v. National Panasonic India Ltd. 156 (2009) DLT 160 (SC), wherein it has been held that service of notice is imperative, and the giving of notice cannot take precedent over service of notice. He had argued that the accused has successfully been able to rebut the presumption raised under Section 139 of NI Act.
CC No. 528587/2016 Ravinder Kumar Aggarwal v. Kahakahsan @ Seema Page 8 of 20 Digitally signed by KRATIKA KRATIKA CHATURVEDI
CHATURVEDI Date: 2022.01.17
15:13:46 +05'30'
14. As such, it is prayed that the accused be acquitted for the offence punishable under section 138 of the Negotiable Instruments Act.
INGREDIENTS OF OFFENCE AND DISCUSSION-
15. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 138 of NI Act, the prosecution must fulfil all the essential ingredients of the offence. Perusal of the bare provision reveals the following necessary ingredients of the offence:-
First Ingredient: The cheque was drawn by a person on an account maintained by him for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity;
Second Ingredient: The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability; Third Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;
Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank;
Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
APPRECIATION OF EVIDENCE-
16. The accused can only be held guilty of the offence under Section 138 NI Act if the above-mentioned ingredients are proved by the complainant co-
CC No. 528587/2016 Ravinder Kumar Aggarwal v. Kahakahsan @ Seema Page 9 of 20KRATIKA Digitally by KRATIKA signed CHATUR CHATURVEDI Date: 2022.01.17 VEDI 15:13:29 +05'30' extensively. Additionally, the conditions stipulated under Section 142 NI Act have to be fulfilled. Notably, there is no dispute at bar about the proof of only first, third and fourth ingredient. The complainant had proved the original cheque vide Ex. CW1/1 which the accused had not disputed as being drawn on the account of the accused. It was not disputed that the cheque in question were presented within its validity period. The cheque in question was returned unpaid vide return memo dated 04.09.2013 vide Ex. CW1/3 due to the reason, "funds insufficient". The complainant had proved on record the legal demand notice dated 10.09.2013 vide Ex. CW1/4, postal receipt vide Ex. CW1/5(colly) and acknowledgement card vide Ex. CW1/6. However, the Ld. Counsel for the accused has denied the receipt of the legal demand notice. Thus, there is a dispute between the parties regarding the fourth ingredient to the offence, as to whether the legal notice has been sent by the complainant or not. As such, only first, third and fifth ingredient of the offence under section 138 of the NI Act stands proved.
17. As far as the proof of second ingredient is concerned, the complainant has to prove that the cheque in question was drawn by the drawer for discharging a legally enforceable debt. In the present case, the issuance of the cheque in question is not denied. As per the scheme of the NI Act, once the accused admits signature on the cheque in question, certain presumptions are drawn, which result in shifting of onus. Section 118(a) of the NI Act lays down the presumption that every negotiable instrument was made or drawn for consideration. Another presumption is enumerated in Section 139 of NI Act. The provision lays down the presumption that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability.
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18. The combined effect of these two provisions is a presumption that the cheque was drawn for consideration and given by the accused for the discharge of debt or other liability. Both the sections use the expression "shall", which makes it imperative for the court to raise the presumptions once the foundational facts required for the same are proved. Reliance is placed upon the judgment of the Hon'ble Supreme Court, Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16.
19. Further, it has been held by a three-judge bench of the Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption contemplated under Section 139 of NI Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence. The principles pertaining to the presumptions and the onus of proof were recently summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 as under:
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner:
25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.CC No. 528587/2016 Ravinder Kumar Aggarwal v. Kahakahsan @ Seema Page 11 of 20
KRATIKA Digitally by KRATIKA signed CHATURV CHATURVEDI Date: 2022.01.17 EDI 15:12:53 +05'30' 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come in the witness box to support his defence."
20. The presumptions raised under Section 118(b) and Section 139 NI Act are rebuttable presumptions. A reverse onus is cast on the accused, who has to establish a probable defence on the standard of preponderance of probabilities to prove that either there was no legally enforceable debt or other liability. In this case, the arguments raised by the Ld. counsel for the accused to rebut the presumption are discussed below.
21. The main issue which arises for consideration is whether the cheque in question is issued for the discharge of any legal liability or debt which is due towards the complainant. The accused in her notice framed under section 251 CrPC had stated that she took a loan from one Mr. Sunil Kumar for an amount of Rs. 30,000/- in December 2012 which has already been repaid in September 2013. It is the case of the accused that despite request made to Mr. Sunil Kumar, he failed to handover the cheque in question. It is further the case of the accused that she has never taken any loan from the complainant as she has no friendly relations with the accused. Further in her statement recorded under section 313 CrPC, CC No. 528587/2016 Ravinder Kumar Aggarwal v. Kahakahsan @ Seema Page 12 of 20 KRATIKA Digitally KRATIKA signed by CHATURVE CHATURVEDI Date: 2022.01.17 DI 15:12:33 +05'30' she had taken a stand that the cheque in question was given to one Mr. Sunil Kumar, who is the landlord of the complainant as he was running a chit fund and she was a member of the said chit fund. However, on the other hand the Ld. Counsel for the complainant has placed on record the promissory note vide Ex. CW1/7 and the receipt vide Ex. CW1/8 which shows the receipt of Rs. 50,000/- by the accused as both the documents bear the signature of the accused.
22. The Ld. Counsel for the accused had further contended that other particulars on the cheque in question were not filled by the accused as the same were handed over to one person namely, Mr. Sunil Bharija for the purpose of security. However, it is a settled position of law that it is immaterial as to whether the accused had filled the other particulars on the cheques in question when the same has been duly signed by the drawer of the cheque. A reliance be placed upon the judgment of the Hon'ble Supreme Court in the case of Bir Singh v. Mukesh Kumar (supra), wherein it has been held that a material 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 his legal liability. It further laid down that 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. In the present case, it is an admitted fact that the cheque was signed by the accused, thus, it can be said that she gave the full authority to the complainant to fill the contents of the cheques in question and the plea taken by the accused does not hold good in the light of the settled law.
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KRATIKA Digitally signed by
KRATIKA
CHATURVED CHATURVEDI
Date: 2022.01.17
I 15:12:12 +05'30'
23. The Ld. Counsel for the accused had also argued that the complainant in the cross-examination had stated that the instant loan had been shown in the ITRs for the period 2012-13, however he has failed to produce the same on record. The presumption under section 139 of NI act cannot be rebutted merely on the ground that the complainant has failed to produce the ITRs on record. The reliance be placed on the judgment of the Hon'ble High Court of Delhi in the case of Sheela Sharma v. Mahendra Pal 2016 SCC Online Del 4696, wherein it has been observed as under, "In cases where the complainant claims to have advanced a friendly loan in cash, and where the transaction of loan is not evidenced by any other documentary or other reliable evidence, no doubt, the aspect whether the availability of funds in cash with the complainant/ lender, and its advancement as loan to the accused have been reflected in the income tax returns of the complainant/ lender, or not, become relevant. If, the availability of funds, and the loan transaction itself is not so reflected, that factor is taken note of by the Court as relevant to hold that the presumption under Section 118 and 139 of the NI Act stands rebutted. However, these considerations would not be relevant, where loan transaction itself is otherwise established, either through documentary evidence - such as, a receipt or a loan agreement, or acknowledgement executed by the accused, or by oral evidence of an independent witness who is found to be credible..."
24. In the present case, the complainant has placed on record the promissory note vide Ex. CW1/7 and the receipt vide Ex. CW1/8 which shows that the accused had taken a loan to the tune of Rs.50,000/ from the complainant. The non-reflection of such loan transaction in the ITR of the complainant is irrelevant when the complainant has placed on record sufficient evidence to raise the presumption under section 139 of the NI Act. Also, the Hon'ble High Court of Madhya Pradesh in the case of Smt. Ragini Gupta v. Piyush Dutt Sharma Crr 5263/2018 delivered CC No. 528587/2016 Ravinder Kumar Aggarwal v. Kahakahsan @ Seema Page 14 of 20 KRATIKA Digitally signed by CHATURVE KRATIKA CHATURVEDI Date: 2022.01.17 DI 15:11:56 +05'30' on 07.03.2019 held that merely non-filing of ITRs by the complainant would not draw any adverse inference against the complainant.
25. The Ld. Counsel for the accused had also argued that the complainant failed to prove the mode of payment of the loan given to the accused. In the cross-examination of CW1, the complainant had stated that the loan amount was given by way of cheque, however as per the promissory note vide Ex. CW1/7 and the receipt vide Ex. CW1/8, the payment of the loan amount is in cash. It is a well settled law that documentary evidence prevails over the oral evidence in light of the principle laid down under section 92 of the Indian Evidence Act, 1872. Thus, the minor inconsistency in the testimony of the complainant cannot impeach the documentary evidence placed on record. The Ld. Counsel for the accused has also pointed out the contradiction in the testimony of the complainant that at one time, his case is that loan transaction took place in the presence of the two witnesses namely, i.e., Mr. Yashwant and Mr. Narender (which is corroborated by the receipt placed on record vide Ex. CW1/8) while on the other hand, the complainant has stated that no person was there when the loan transaction took place. In the considered opinion of the court, when the complainant has proved his case otherwise by placing cogent and sufficient evidence on record, the contradiction is not material so as to discredit the entire case of the complainant. The accused has to lead her own evidence in order to rebut the case of the complainant, which the accused has failed in the present case.
26. The judgments relied upon the Ld. Counsel for the accused, Santosh Manikrao Gundale v. Rameshwar Wamanrao & Anr. (supra), B.P. CC No. 528587/2016 Ravinder Kumar Aggarwal v. Kahakahsan @ Seema Page 15 of 20 Digitally signed by KRATIKA KRATIKA CHATURVEDI CHATURVEDI Date: 2022.01.17 15:11:34 +05'30' Venkatesulu v. K.P. Mani (supra), John K. Abraham v. Simon C. Abraham & Anr. (supra) are not applicable to the facts of the present case as the complainant has placed on record independent proof of the fact of the said loan transaction, i.e., promissory note vide Ex. CW1/7 and receipt vide Ex. CW1/8, which bears the signature of the accused.
27. The Hon'ble Supreme Court in the case of M.S. Narayana Menon @ Mani v. State of Kerala (2006) 6 SCC 39 has observed as under, "32. A Division Bench of this Court in Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal [(1999) 3 SCC 35] albeit in a civil case laid down the law in the following terms:
"Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non- existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non- existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of CC No. 528587/2016 Ravinder Kumar Aggarwal v. Kahakahsan @ Seema Page 16 of 20 Digitally signed by KRATIKA KRATIKA CHATURVEDI CHATURVEDI Date: 2022.01.17 15:11:13 +05'30' negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt"
28. In the present case, the accused has failed to adduce sufficient evidence to rebut the presumption laid down under section 139 of the NI Act. The accused has failed to prove as to how the cheque in question reached into the hands of the complainant and has not even disproved the promissory notes vide Ex. CW1/7 and receipt vide Ex. CW1/8 placed on record, which implies that loan was given to the accused for an amount of Rs.50,000/-. A statutory presumption has an evidentiary value. The question as whether the presumption stood rebutted or not, must, therefore, determined keeping in view the other evidence on record. In the present case, the accused has miserably failed to disprove that the cheques in question were not issued for the discharge of any legal liability. Consequently, it can be said that legal liability exists in favour of the complainant, thus, the second ingredient to the offence under section 138 of NI Act stands proved.
29. It is further contended by the Ld. Counsel for the accused that the accused has not received any legal notice dated 10.09.2013 vide Ex. CW1/4, so cause of action does not arise in such circumstances. The complainant has placed on record the acknowledgment card vide Ex. CW1/6 which bears the signature of the accused. It is pertinent to note that the accused has admitted in the notice framed under section 251 CrPC regarding the receipt of the legal notice while the accused has denied the receipt of the legal notice and signature on the AD card vide Ex. CW1/6.
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30. Perusal of the record reveals that the address mentioned in the legal notice is the same as has been stated by the accused in the notice framed under section 251 CrPC. It is also to be seen that the accused has appeared after the issuance of the summons against her. A reliance be placed on the judgment of the Hon'ble High Court of Delhi, Manoj Jain v. Surinder Kumar Jain & Anr. 2015 (3) JCC (NI) 212, wherein the court observed as under:
"The assertion of the Petitioner that the demand notice was not received by him as it was sent on a wrong address. The summons by the court which were also sent at the same address, were received by him. The notice, which was sent by UPC did not return, indicating that it was served. Thus, both the courts below rightly held that notice was validly served."
31. The complainant has placed on record sufficient evidence to show that the legal notice was duly sent to the accused and the appearance of the accused thereafter in the court shows that the legal notice was validly served. Thus, the reliance placed upon the judgment of the Hon'ble Supreme Court of Harman Electronics (P) Ltd. & Anr. v. National Panasonic India Ltd. (supra) by the Ld. Counsel for the accused is not applicable to the facts of the present case. Also, it is nobody's case that the accused tendered the amount entailed in the impugned cheque upon entering appearance before this court in response to the summons issued in the instant case. At this stage, a reliance be placed upon the judgment of the Hon'ble Supreme Court in the case of CC. Alavi Haji v. Palalpetty Muhammed & Anr. (2007) 6 SCC 555, wherein it was observed as under, "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 CC No. 528587/2016 Ravinder Kumar Aggarwal v. Kahakahsan @ Seema Page 18 of 20 KRATIKA Digitally signed by KRATIKA CHATURVE CHATURVEDI Date: 2022.01.17 DI 15:10:16 +05'30' 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 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."
32. The plea of the accused regarding the non-receipt of the legal notice is accordingly rejected as being frivolous and inconsequential. Consequently, the fourth ingredient of the offence under section 138 of NI Act is proved.
CONCLUSION
33. To recapitulate the above discussion, the complainant has been successful in establishing his case beyond reasonable doubt that the accused had issued the cheques in question in discharge of its legally enforceable liability. The presumptions under section 118 and section 139 of the NI Act were drawn against the accused. The accused has miserably failed to rebut the said presumption by raising a probable defence. The defence of the accused that there was no legal liability is not proved, even on the standard of preponderance of probabilities. Moreover, the Hon'ble Supreme Court in the case of Lakshmi Dyechem v. State of Gujarat (2012) 13 SCC 375, has held as under, CC No. 528587/2016 Ravinder Kumar Aggarwal v. Kahakahsan @ Seema Page 19 of 20 KRATIKA Digitally signed by KRATIKA CHATURVE CHATURVEDI Date: 2022.01.17 DI 15:09:57 +05'30' "Therefore, if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If, however, the accused/drawer of a cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant."
34. In light of the aforementioned discussion, the complainant has successfully proved all the essential ingredients of section 138 of the NI Act. Accordingly, the accused, Ms. Kahakashan @ Seema, is held guilty for committing the offence under section 138 of the NI Act and is hereby convicted.
Announced in the open court on 17.01.2022 in the presence of both the parties through video conferencing.
Digitally signed by KRATIKA KRATIKA CHATURVEDI
CHATURVEDI Date: 2022.01.17
15:09:21 +05'30'
(Kratika Chaturvedi)
MM, NI Act-04, Central District, THC
17.01.2022
Note:- This judgment contains 20 pages and each page has been signed by me.
CC No. 528587/2016 Ravinder Kumar Aggarwal v. Kahakahsan @ Seema Page 20 of 20