Delhi District Court
Om Prakash vs Sanjay Kumar on 5 January, 2024
IN THE COURT OF MS. KAVITA BIST: MM (N.I.ACT) DIGITAL
COURT / EAST DISTRICT, KKD COURTS: NEW DELHI
Om Prakash Vs. Sanjay Kumar
CC No. 1009/2022
u/s 138 Negotiable Instruments Act, 1881
1. CIS number : 1009/2022
2. Name of the Complainant : Om Prakash
S/o Late Sh. Sarni Singh
R/o H.No. 531, Gali No. 9, West
Kanti Nagar, Delhi110051
3. Name of the accused, : Sanjay Kumar
parentage & residential address S/o Late Sh. Raj Kumar
R/o B8/14, Krishna Nagar,
Delhi110051
4. Offence complained of or : u/s 138 Negotiable Instruments
proved Act, 1881
5. Plea of the accused : Pleaded not guilty and claimed
trial.
6. Final Judgement / order : Acquitted
7. Date of Judgement / order : 05.01.2024
Date of Institution : 09.05.2022
Date of Reserving Judgement / Order : 13.12.2023
Date of Pronouncement of Judgement/ Order : 05.01.2024
CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 1/26
JUDGEMENT
1.) By way of the present Judgement, this court shall dispose off the present complaint filed by Om Prakash (herein after referred to as 'Complainant') against Sanjay Kumar (herein after referred to as 'accused') u/s 138 Negotiable Instruments Act, 1881 r/w section 142 Negotiable Instruments Act, 1881 (herein after referred to as "N.I. Act" in short).
Factual Matrix
2.) The brief facts as alleged by the Complainant in the complaint are that the accused was having friendly relation with the complainant and in the first week of May 2021, the accused had approached the complainant and requested for a help of Rs. 8 lakh to meet his urgent need and considering the friendly relation with the accused, the complainant had arranged an amount of Rs. 8 lakh and had given the same to the accused in cash on 08.06.2021 for a period of six months and in order to repay the loan amount and discharge of his legal liability accused had issued a cheque bearing no. 000072 dated 08.02.2022 amounting to Rs. 8 lakh drawn on UCO Bank, Krishna Nagar, Delhi110051.
When the Complainant presented the said cheque, (herein after referred to as 'cheque in question') through his banker IDBI Bank Limited, Krishna Nagar, Delhi branch, the same was returned unpaid by the banker of the accused vide returning memo dated 11.02.2022 with the remarks "funds insufficient".
CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 2/26The Complainant thereafter issued a legal demand notice on 04.03.2022 through Counsel calling upon the accused to pay the said cheque amount within a period of 15 days from receipt thereof. The said notice was duly served upon the accused and the accused failed to pay the aforesaid cheque amount within the statutory period.
Hence, the present complaint u/s 138 N.I.Act was filed on 09.05.2022 by the complainant, praying for the accused to be summoned, tried and punished for commission of the offence u/s 138 N.I.Act. The Complainant has averred that the present complaint is within the period of limitation and fall within the territorial limit of this Court's jurisdiction; thus, being tenable at law.
Proceedings before the Court
3.) Presummoning evidence of the complainant: To prove primafacie case, the complainant led presummoning evidence by way of affidavit, exhibit CW1/A, however, as the court was working digitally at that time so the tendering was dispensed with.
4.) Documentary Evidence of the complainant: To prove his primafacie case, the complainant has relied upon the following documents:
a.) Original cheque bearing no. 000072 exhibited as Ex.CW1/1.
b.) Original returning memo dated 11.02.2022 exhibited as Ex. CW1/2.
c.) Legal demand notice dated 04.03.2022 exhibited as Ex. CW1/3.
d.) Speed postal receipt exhibited as Ex. CW1/4.CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 3/26
e.) Tracking report for the legal demand notice exhibited as Ex. CW1/5.
f.) Undertaking dated 08.06.2021 executed by the accused exhibited as Ex. CW1/6.
5.) After pursuing the complaint and hearing the argument of the Complainant on the point of summoning of the accused, primafacie it appeared that the offence u/s 138 N.I.Act has been committed. Hence, cognizance of the offence u/s 138 N.I.Act was taken on 24.08.2022.
6.) Framing of notice and plea of defence: Notice u/s 251 Cr.P.C was framed against the accused on 31.01.2023 to which he pleaded not guilty and claimed trial. The plea of defence of the accused was recorded where he admitted his signature on the cheque in question, however, he had stated that the cheque in question was given as a blank signed cheque to the complainant for availing a loan and the complainant had also taken some blank signed documents from him, however, no loan was ever given by the complainant to him. He further stated that he had not received the legal demand notice issued by the complainant.
7.) Evidence of the complainant: After framing of notice, application u/s 145(2) N.I. Act was allowed orally by the Ld. Predecessor and hence, the case was tried as a summons case and accused was granted permission to cross examine the complainant. Thereafter, the complainant was examined as CW1, adopting the presummoning evidence as postsummoning evidence and was cross examined and discharged. No other witnesses were examined by the complainant. Thereafter, complainant evidence was closed, and the matter was put up for statement of accused u/s 313 Cr.P.C CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 4/26 r/w Section 281 Cr.P.C.
8.) Statement of the accused: Statement of the accused was recorded u/s 313 Cr.P.C r/w Sections 281 Cr.P.C on 13.09.2023, wherein all the incriminating circumstances appearing in evidence against the accused were put to him to which, he stated that he had financed his school van from AU Bank and he could not pay certain EMIs for the same and his school van was seized by that bank and he was in need of Rs. 50,000/ for releasing his school van from bank and he had approached the complainant for the same and the complainant asked him for a blank signed cheque and had also taken a blank signed documents and one thumb impression was also taken on a receipt from him for the security of the loan, however, no loan was ever provided to him by the complainant. He further stated that he had received the legal demand notice issued by the complainant. The accused also stated that he wants to lead defence evidence and the present case is a false and fabricated case.
9.) Defence evidence: The accused examined himself as DW1 in the present case and no other witnesses were examined by the accused. Thereafter, defence evidence was closed, and the matter was put up for final arguments.
10.) Final Arguments: Final arguements were advanced by both sides. Written arguments along with judgments have also been filed by the complainant before the court. I have heard the submission of Ld. Counsel for the complainant as well as the accused. I have also perused the record.
CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 5/2611.) Before deciding the present complaint case u/s 138 of N.I Act, 1881, the following legal requirements must be satisfied from the averments in the complaint as well as the evidence of complainant.
a.) That a person has drawn a cheque, on an account maintained by him with the banker for payment of any amount of money in other person from out of that account for the discharge, in whole or in part, of any legally enforceable debt or other liability;
b.) That the cheque has been presented to the bank with in a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
c.) That the cheque has been returned by the drawee bank unpaid, for the reason that the amount of money standing to be credit of that account is insufficient to honor the cheque or that it exceeds the amount arranged to be paid from that account by agreement made with that bank;
d.) That the payee or holder in due course has made a demand for payment of the said amount of money by giving the notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid;
e.) 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 the receipt of the said notice;
The aforesaid legal requirements are cumulative in nature, i.e only when all CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 6/26 of the aforementioned ingredients are duly proved is the drawer of the cheque deemed to have committed an offence u/s 138 of N.I Act.
The provision of section 138 N.I is buttressed by section 139 and section 118(a) of the N.I. Act. Section 139 of the Act provides that the court shall presume, that the holder of a cheque received the cheque for the discharge, wholly or in part of any debt or other liability. Section 118(a) of the Act provides interalia that the court shall presume, until the contrary is proved, that every Negotiable Instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.
12.) It is a well settled principle of criminal jurisprudence that a criminal trial proceeds on the presumption of innocence of the accused i.e an accused is presumed to be innocent unless proved guilty. Thus, normally the initial burden to prove is on the complainant/prosecution to prove the guilt of the accused. Also, the standard of prove is beyond reasonable doubt. However, in offences u/s 138 of the N.I Act, there is a reverse onus clause contained in section 118(a) and section 139 of the N.I Act. The presumption u/s 139 and section 118(a) of the N.I Act mandate the court to draw them, when a given set of facts are shown to exist. The same is evident by the peremptory language "Shall presume" used. However, the said presumptions are rebuttable in nature, i.e it is open for the defence to disprove the same by establishing facts to the contrary.
CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 7/26In the case of Hiten P. Dayal Vs. Bratindranath Bannerjee (2001) 6 SCC 16, the Hon'ble Supreme Court had occasion to examine the confines of the presumptions u/s 139 of the Act wherein, it held as follows:
"because both section 138 and 139 require that the court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras Vs. A. Vaidyanatha Iyer AIR 1958 SC 61, it is obligatory on the court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. The obligation on the prosecution may be discharged with the help of presumptions of law or facts unless the accused adduces the evidence showing the reasonable possibility of the non existence of the presumed fact. Therefore, the rebuttal does not have to be conclusive establish but such evidence must be adduced before the court in support of the defence that court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of 'prudent man'"
13.) It is a settled proposition of law that the standard of proof which is required from the accused to rebut the statutory presumption u/s 118(a) r/w section 139 of the N.I Act is preponderance of probabilities. The accused is CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 8/26 not required to prove his case beyond reasonable doubt. This onus on the accused can be discharged from the materials available on record and from the circumstantial evidences. At this point, the Hon'ble Supreme Court in M.S Narayan Menon Vs. State of Kerala (2006) 6 SCC 39 has interalia held the following:
"The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from materials on record but also by reference to the circumstances upon which he relies."
14.) It is not always mandatory for the accused to examine its own witness in order to rebut the said statutory presumption. At this point, reliance may be placed on the decision of the Hon'ble Supreme Court in the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde AIR 2008 SC 1325, wherein the Hon'ble Court has categorically held the following:
"Accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. As accused has a constitutional right to remain silent. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different."
15.) With regard to the factors taken into account for rebutting the presumption u/s 139 r/w Section 118(a) of the Act, the Judgment of CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 9/26 Hon'ble Delhi High Court in V.S Yadav Vs. Reena, 172 (2010) DLT 561, assumes importance, wherein, it was held that:
"Mere pleading not guilty and stating that the cheques were issued as security, would not amount to rebutting the presumption raised u/s 139 of N.I Act. The accused, by cogent evidence, has to prove the circumstance under which cheques were issued."
16.) Now, I shall proceed with the legal ingredients one by one and give my finding on whether the evidence on record satisfies the legal ingredients in question or not: a.) "That a person has drawn a cheque, on an account maintained by him with the banker for payment of any amount of money in other person from out of that account for the discharge, in whole or in part, of any legally enforceable debt or other liability."
16.1) This condition pertains to the issuance of the cheque itself. It is pertinent to note that the accused in his notice of accusation u/s 251 Cr.P.C has admitted his signature on the cheque in question. Subsequently, in his statement u/s 313 r/w Section 281 of Cr.P.C admitted his signature on the cheque in question. Further, the cheque has been drawn on the account of accused. This leads to drawing of an inference u/s 139 r/w section 118 of the Act, that the cheque was issued in discharge of a legally recoverable debt or other liability.
CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 10/2616.2) The presumption, having been raised against the accused, it falls upon him to rebut it. The accused has taken a defence that the cheque in question was given as a blank signed cheque to the complainant for availing a loan and the complainant had also taken some blank signed documents from him, however, no loan was ever given by the complainant to him. The accused has cross examined CW1 and examined himself as DW1 in his defence.
16.3) The standard of proof for rebuttal is on preponderance of probabilities. As held by the Hon'ble Supreme Court in decision as K.N Beena Vs. Muniyappan and Anr. (2001) 8 SCC 458, in order to rebut the presumption, mere denial by the accused will not suffice. The accused must prove by leading cogent evidence that there was no debt or liability.
16.4) In case of M/s Kumar Exports Cas Vs. M/s Sharma Carpets Crl. A.No. 2045/2008, the Hon'ble Supreme Court has held:
"The accused u/s 138 N.I Act has two options. He can either show that the consideration and debt did not exist or that under the particular circumstances of the case, the non existence of consideration and debt is so probable that the prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumption, an accused is not expected to prove his defence beyond reasonble doubt as it is expected of the complainant in a criminal trial. The accused may adduced direct evidence to prove that the note in question was not supported by consideration and that CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 11/26 there was no debt or liability to be discharge by him. However, the court need not insist in every case that the accused should disprove the non existence of consideration and debt by leaving direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration an existence of debt, apparenlty would not serve the purpose of the accused. The accused may also rely upon presumptions of fact, for instance, those mentioned in section 114 of the Evidence Act to rebut the presumptions arises u/s 118 and 139 of N.I Act."
16.5) Major defence led by the Ld. Counsel for accused is that the cheque in question was given by the accused as a blank signed cheque to the complainant for availing a loan and at that time, the complainant had also taken some blank signed documents from the accused, however, no loan was ever given by the complainant to the accused. In the present case, the onus to prove that accused has not issued the cheque in question for any legally enfroceable debt or liability in favour of the complainant primarily lied on the accused. Section 103 of Indian Evidence Act, 1872, enunciates that the person who asserts a fact must prove the same unless the law otherwise provides.
In order to create doubts in the complainant's claim, the accused has adopted the abovesaid defences and I shall deal with all the defences separately.
CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 12/26The present cheque in question has been issued as security.
A contention advanced by the defence which deserved scrutiny is that the cheque in question was given as a security cheque to the complainant for availing a loan. Even if it is assumed that the cheque in question was issued as security for availing a loan, by this fact alone, the presumption u/s 139 N.I Act can not be dislodged. The law is settled on the point of security or advance cheque. The Hon'ble High Court of Delhi in the case of Suresh Chandra Goel Vs. Amit Singhal (2015) SCC Online DEL 6459 has observed that:
"Section 138 of N.I Act does not distinguished between a cheque issued by the debtor in discharge of his 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 N.I Act in case of its dishonor."
The Hon'ble Supreme court of India in Sripati Singh (D) Vs. State of Jharkhand 28.10.2021 held that:
"A cheque issued as a security pursuant to a financial transaction can not be considered as a worthless piece of paper under every circumstance. Security in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 13/26 deposited or pledge to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advance and borrower agrees to repay the amount in a specified time frame and issued a cheque as security to secure such repayment; if the loan amount is not repay in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplate u/s 138 and the other provisions of N.I Act would flow."
Hence, mere averment that the cheque in question was given as security in the absence of any cogent evidence is not sufficient to rebut the statutory presumption raised against the accused. Therefore, in the view of the above judgments the defence taken by the accused that the cheque in question was given as a security has no force.
The body of the cheque in question has not been filled by the accused The accused has stated in his statement recorded u/s 313 r/w section 281 Cr.P.C that the cheque in question was given to the complainant as blank signed cheque, hence, there is a material alteration in the cheque in question. So far as the defence of filling of details by the complainant in the cheque is concerned, the same is untenable, considering the case of "Bir CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 14/26 Singh Vs. Mukesh Kumar, 2019 (4) SCC 197 wherein the Hon'ble Supreme Court" observed and held:
"A meaningful reading of the provision 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 cheque is duly signed by the drawer. It is cheque is otherwise valid, the penal provisions of section 138 would be attracted. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the 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."
It is also pertinent to refer Oriental Bank of Commerce Vs. Prabodh Kumar Tewari Crl. A.No. 1260/2022, wherein the Hon'ble Supreme Court held:
"For such a determination, the fact that the details of the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 15/26 arises of the signing of the cheque can not be rebutted merely by the report of a handwriting expert. Even if the details in the cheque have not been filled by drawer but by another person, this is not relevant to the defence whether cheque was issued towards payment of a debt or in discharge of a liability."
In this context, it is necessary to take note of the judgment of Hon'ble Delhi High Court in Ravi Chopra Vs. State and Anr. (2008) 102 DRJ 147, wherein the Hon'ble Court held:
" A collective reading of the abovesaid provision shows that even under the scheme of the N.I. Act it is possible for the drawer of a cheque to give a blank cheque signed by him to the payee and consent either impliedly or expressly to the said cheque being filled up as a subsequent point in time and presented for payment by the drawee. There is no provision in the N.I. Act which either defines the difference in hand writing or the ink pertaining to the material particulars filled up in comparison with the signatures thereon as constituting a 'material alteration' for the purposes of section 87 N.I. Act. What however, is essential is that the cheque must have been signed by the drawer. If the signature is altered or does not tally with the normal signature of the maker, that would be a material alteration. Therefore, as long as the cheque has been signed by the CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 16/26 drawer, the fact that the ink in which the name and figures are written or the date is filled up is different from the ink of the signature is not a material alteration for the purposes of section 87 N.I. Act."
Therefore, the plea that the details of the cheque in question was not filled by the accused is untenable in light of the above mentioned judgments.
Blank signed documents taken by the complainant As far as the abovesaid defence is concerned, it is important to draw attention on the notice of accusation u/s 251 Cr.P.C and statement recorded u/s 313 r/w section 281 Cr.P.C of accused, wherein the accused has stated that the complainant had taken some blank signed documents from him when he had approached the complainant for a loan and he has also stated in his statement that one blank signed document and one thumb impression was also taken on a receipt from him for the security of the loan.
The complainant had filed an undertaking Ex. CW1/6 executed by the accused on 08.06.2021, wherein he has stated that he had borrowed a sum of Rs. 8 lakh from the complainant on 08.06.2021 for a period of six months. The said undertaking is duly executed by the accused and the same is bearing the signature as well as the thumb impression of the accused. Now, it is important to note here that the accused has not disputed the signature as well as the thumb impression on the said undertaking and he has simply averred that one blank signed document was taken by the complainant along with one thumb impression on a receipt. The accused CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 17/26 has neither examined any witness nor filed any documentary proof which can substantiate the abovesaid claim of the accused.
In the absence of any cogent evidence regarding the abovesaid claim the defence taken by the accused that he had given some blank signed document is a bare averment, unsubstatiated by any proof and the said undertaking stands duly proved by the complainant.
No loan was ever provided by the complainant The main defence taken by the accused which deserves close scrutiny is that no loan was ever provided by the complainant to the accused. The accused has stated that he was in need of Rs. 50,000/ as his school van was seized by the bank on his failure to pay EMIs of the same and that is why he had approached the complainant for the abovesaid loan and the complainant had taken a blank signed cheque along with blank signed document for the security of that loan, however, after taking the same, no loan was ever provided by the complainant to the accused.
In this regard, the complainant has questioned the financial capacity of the complainant to lend such a huge amount. In this aspect it is appropriate to refer judgment of APS Forex Services Private Limited Vs. Shakti International Fashion Linkers AIR 2020 SC 945, wherein the Hon'ble Apex Court had explained as follows:
"Now so far as the reliance is placed by Learned Counsel appearing on behalf of the accused on the decision of this Court in the case of Basalingappa (supra), on going through CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 18/26 the said decision, we are of the opinion that the said decision shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the accused. In that case before this Court, the defence by the accused was that the cheque amount was given by the complainant to the accused by way of loan. When the proceedings were initiated under Section 138 of the N.I. Act the accused denied the debt liability and the accused raised the defence and questioned the financial capacity of the complainant. To that, the complainant failed to prove and establish his financial capacity. Therefore, this Court was satisfied that the accused had a probable defence and consequently in absence of complainant having failed to prove his financial capacity, this Court acquitted the accused. In the present case, the accused never questioned the financial capacity of the complainant. We are of the view that whenever the accused has questioned the financial capacity of the complainant in support of his probable defence, despite the presumption under Section 139 of the N.I. Act about the presumption of legally enforceable debt and such presumption is rebuttable, thereafter the onus shifts again on the complainant to prove his financial capacity and at that stage the complainant is required to lead the evidence to prove his financial capacity, more CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 19/26 particularly when it is a case of giving loan by cash and thereafter issuance of a cheque."
The position emerges from the abovesaid judgment is that initially the complainant has not any obligation, in all cases u/s 138 N.I. Act, to prove his financial capacity, however, when the case of the complainant is that he lent money to the accused by cash and that the accused issued the cheque in discharge of the liability, and if the accused is challenging the financial capacity of the complainant then despite the presumption u/s 139 of N.I Act, the complainant has the obligation to prove his financial capacity. In the present case, the accused had challenged the financial capacity of the complainant to lent an amount of Rs. 8 lakh.
During the crossexamination of the complainant, he had deposed that he was working as a compounder as well as electrician and he had not filed ITR since last three years i.e 20202023 as his income was less than Rs. 5 lakh and he has stated that part amount of Rs. 462,000/ was arranged from the committee and the remaining amount of Rs. 280,000/ was arranged after withdrawing the same from his bank account and rest amount was lying at his house and he has also stated that the amount of Rs. 2,80,000/ which was withdrawn from the bank account was transferred by his friends, however, he has failed to divulge as to how much amount was given by his friend for the advancement of the alleged loan. On one hand he has stated that the amount of Rs. 280,000/ was given by his friends and on the other hand, he has stated that he is not aware as to how much amount was given by his friends and he has further stated that he used to help his friends in case of need of money, but that was only for Rs. 10,000 CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 20/26 15,000/ and he has also stated that accused was his friend since last 20 years and that is why such a huge amount was lent to him, however, he has stated that he had not attended any family function of the accused till date.
In the view of the abvoesaid submission of the complainant, wherein he has himself stated that his income was less than Rs. 5 lakh and he was working as a compounder as well as electrician, it is highly improbable for a reasonable man to believe that with such an income and profession, an amount of Rs. 8 lakh can be given by the complainant to the accused, however, the complainant has stated that he had arranged the part amount from committee and part amount from his friends, but neither any witness has been examined by the complainant from the said committee or his friends nor any documentary proof has been filed by the complainant to substantiate the source of funds for the alleged loan, specially when the financial capacity of the complainant is challenged by the Ld. Counsel for accused during his cross examination.
It is also pertinent to take note of the fact that the complainant has stated he was having friendly relation with the accused for last 20 years and that is why he had advanced such a huge loan to the accused, however, during his crossexamination, the complainant has stated that he had not attended any family function of the accused during that tenure of 20 years which again cast a doubt on the relation of complainant and accused and after failure to prove that long relationship by the complainant, it seems highly improbable that in normal circumstances, a person would take so much of pain to advance loan by arranging the same from some other person.
CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 21/26It is also pertinent to take note of the fact that the complainant has stated in his crossexamination that he used to help his friends in case of need of money, but that was only for Rs. 10,00015,000/ and considering this statement it is not believable that a person with reasonable prudence would advance such a huge amount of loan after arranging the same from some other persons, in absence of any special relation with the borrower.
Therefore, in the present case, considering the profession of the complainant; annual income of the complainant and in the absence of any document regarding the source of funds; the accused has successfully rebutted the presumption which is in favour of the complainant and successfully raised doubt as far as the alleged liability.
16.6) At this stage, it should be noted that when the accused successfully creats doubts in the complainant's case by drawing inferences from the materials on record and also from the circumstances, statutory presumptions u/s 118(a) r/w section 139 of the N.I stand rebutted and burden to proof is then shifted to the complainant to prove the guilt of accused beyond reasonable doubt. Reference can be taken from the decision of the Hon'ble Supreme Court from the case of Bharat Barrel & Drum Manufacturing Company Vs. Amin Chand Pyare Lal 1999 (3) SCC 35, wherein it has held the following:
"Upon consideration of various judgments as noted herein above, the position of law which emerges is that once execution of the promissory note is admitted, the CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 22/26 presumption u/s 118A 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 as upon its failure to prove would dis entitle him to the grant of relief on the basis of the negotiable instrumens"
16.7) In the instant case, as discussed above, the burden of proof shifted to the complainant to prove the existence of a legally enforceable debt when the accused succuessfully rebutted the statutory presumption u/s 118(a) r/w section 139 of N.I Act. Therefore, it is for the complainant to prove the guilt of the accused beyond reasonable doubt by leading cogent evidences on record. However, the complainant has neither examined any witnesses nor filed any documents on record to prove the existence of legally enforceable debt.
16.8) Therefore, in view of the above discussions, I am of the view that the accused has successfully raised doubt regarding the liability, as the complainant has failed to establish his financial capacity to lend such a huge amount of loan considering his income and profession. In this light, this court is of the considered opinion that the accused has successfully CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 23/26 demolished the case of complainant regarding the existence of legally enforceable debt.
The upshot of the above discussion is that the said ingredient remains unfulfilled as against the accused. Hence, considering the materials available on record, I am of the considered view that the accused has successfully rebutted the presumption of legally enforceable debt or liability in favour of the complainant.
b.) "That the cheque has been presented to the bank with in a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;"
16.9) This requirement is satisfied on a perusal of the cheque in question Ex. CW1/1 dated 08.02.2022 and the returning memo Ex. CW1/2 which bears the date of 11.02.2022 i.e within a period of three months from the date of issuance of cheque in question. The defence has led no evidence to controvert the same and hence, the ingredient stands fulfilled as against the accused person.
c.) "That the cheque has been returned by the drawee bank unpaid, for the reason that the amount of money standing to be credit of that account is insufficient to honor the cheque or that it exceeds the amount arranged to be paid from that account by agreement made with that bank."
16.10) Section 146 of N.I Act, 1881 provides that the court shall, on production of bank's slip or memo having therein the official mark denoting that the cheque has been dishonored, presumed the fact of dishonor of such cheque, unless and until such fact is disproved. The bank CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 24/26 returning memo Ex. CW1/2 is on record states that the cheque in question have been returned dishonored for the reason "Funds Insufficient." The defence has led no evidence to controvert the same and the accused has also admitted the returning memo in his notice of accusation u/s 251 Cr.P.C and hence, this ingredient is also fulfilled as against the accused.
d.) "That the payee or holder in due course has made a demand for payment of the said amount of money by giving the notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid"
16.11) As regard the service of legal demand notice, the complainant has sent the same, Ex. CW1/3 to the accused. The original postal receipts Ex. CW1/4 in respect of the same is already on record. The tracking report Ex. CW1/5 is also on record and the same is showing "Item delivery confirmed". Moreover, the accused has already admitted that he has received the legal demand notice issued by the complainant in his statement u/s 313 Cr.P.C r/w section 281 Cr.P.C. Therefore, in the light of the above admission by the accused that he has received the legal demand notice. So this ingredient is fulfilled as against the accused.
e.) 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 the receipt of the said notice;
16.12) In the instant case, the accused has admitted that he has received the legal demand notice in his statement recorded u/s 313 r/w 281 Cr.P.C. Hence, considering the admission of the accused that he had received the CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 25/26 legal demand notice, it was open to the accused to make the payment due under the cheque in question within 15 days of receipt of legal demand notice of the instant case. However, the accused has admittedly failed to do so, on the ground that he does not owe the liability of cheque amount, a defence which he has been able to prove at the trial. Hence, this ingredient stands fulfilled as against the accused.
17.) Decision:
As all the ingredients of the offences are not cumulatively satisfied against the accused, the accused Sanjay Kumar is hereby acquitted of the offence u/s 138 of N.I. Act.
Announced in the open court on 05.01.2024.
(Kavita Bist) MM (N.I. Act) Digital Court East Karkardooma, Courts, NewDelhi CC No. 1009/2022 Om Prakash Vs. Sanjay Kumar Page No. 26/26