Delhi District Court
Om Prakash vs Nitin Virmani on 29 May, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE,
(NEGOTIABLE INSTRUMENT ACT) -07, SOUTH, SAKET
COURTS, NEW DELHI
Presided over by: SH. RISHABH TANWAR
CT Cases 9236/2019
Om Prakash Vs. Nitin Virmani
A. CNR No. : DLST020143862019
B. Date of Institution : 22.04.2019
C. Date of commission of : 28.03.2019
offence
D. Name of the complainant : Sh. Om Prakash
S/o Sh. Khayli Ram,
R/o H.No. B-115, Chattarpur,
Phase-II, Delhi-110074.
E. Name of the accused, his : Sh. Nitin Virmani
parentage and address
S/o. Sh. Gulshan Kumar Virmani,
R/o. H.No. 1/7374, East Gorak
Park, Gali No.7, Shahdra,
Delhi -110032.
Offence complained of : Under section 138 Negotiable
Instruments Act, 1881
G. Plea of the accused : Pleaded not guilty and claimed trial.
H. Judgment reserved on : 13.05.2024
I. Date of Judgment : 29.05.2024
J. Final Order : CONVICTION
BRIEF FACTS OF THE CASE:-
CT Cases 9236/2019
Om Prakash Vs. Nitin Virmani Page 1 of 15
Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.29 14:08:38 +0530
1. The instant matter has originated out of a complaint under Section 138 Negotiable Instruments Act (hereinafter referred to as 'NI Act'), filed by the complainant, namely Sh. Om Prakash against the accused Sh. Nitin Virmani, alleging that two cheques bearing : cheque bearing No. 193627 dt. 06.01.2019 of Rs.90,000/- and cheque bearing No. 193626 dt. 29.12.2018 of Rs.98,000/-, both drawn on HDFC Bank, Gr. Floor G 83, Vikas Marg, Preet Vihar, New Delhi, was issued by the accused in favour of the complainant, in discharge of a legal liability. The above-mentioned cheques have been dishonored and the accused has not paid the said amount even after receiving the prescribed legal demand notice dated 05.13.2019. By virtue of this judgment, the present complaint is being disposed of.
2. It is the case of the complainant that he wanted to started a new business for sell purchase of mobile phones through online . It is further the case of complainant that he contacted one Chirag Singh through OLX for purchasing mobile phones on online sites through online as Chirag Singh was a dealer of mobile phone. It is further the case of complainant that on 11.12.2018 complainant met said Chirag Singh for purchasing mobile phones and complainant gave Rs.1,50,000/- and one plus 6T to Chirag Singh for purchasing mobile phone but he took money and one plus 6T mobile and ran away from the metro station and complainant lodged a complaint against Chirag Singh. It is further the case of complainant that on 29.12.2018, Chirag Singh and accused Nitin Virmani who is the brother of Chirag Singh settled the matter by taking whole liability of Chirag CT Cases 9236/2019 Om Prakash Vs. Nitin Virmani Page 2 of 15 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.29 14:08:45 +0530 Singh and issued two cheques: cheque bearing No. 193627 dt. 06.01.2019 of Rs.90,000/- and cheque bearing No. 193626 dt. 29.12.2018 of Rs.98,000/-, both drawn on HDFC Bank, Gr.
Floor G 83, Vikas Marg, Preet Vihar, New Delhi in the name of complainant. Thereafter when complainant presented the above said cheques with its banker on 11.02.2019, the same was dishonoured for the reasons "account closed" vide return memos dt. 12.02.2019. Thereafter, complainant had sent a statutory notice dt. 05.03.2019 which was served to the accused to pay the cheques amount within the prescribed period of 15 days. Since the accused failed to pay the cheques amount within the the prescribed period of 15 days of receiving the legal notice, hence the present complaint.
3. Cognizance was taken on 22.04.2019 and summons were issued against the accused. The accused entered his first appearance before this court on 30.11.2019 wherein he was admitted to bail. Notice u/s. 251 Criminal Proceedure Code, 1973 (hereinafter referred to as "CrPC") was framed on 19.02.2021 wherein he stated that he did not know the complainant. He further stated that he was working with a company called BMA Creations and for the purpose of salary, he had opened the account from which the cheques in question had been drawn in the year 2012. He further stated that after he resigned the said company, he had closed the account in the end of year 2014, upon which cheque book and ATM card of the said account was also returned by him to the said company. He further stated that the signatures on the said cheques were not his. He further stated that he had received the legal notice but CT Cases 9236/2019 Om Prakash Vs. Nitin Virmani Page 3 of 15 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.29 14:08:50 +0530 the same was received by him very late when the case had already started. He further stated that the spelling of his name and address were wrongly mentioned on the notice.
4. Complainant entered the witness box and examined himself as CW-1 on 22.04.2019 in pre-summoning evidence, he tendered his evidence by way of affidavit as Ex. CW-1/G bearing his signatures at point A and B and relied upon the documents namely:
a. Complaint Ex.CW1/A,
b. Original cheques bearing No. 193627 and 193626
Ex.CW1/B,
c. Returning memos dt. 12.02.2019 Ex.CW1/C,
d. Legal notice dt. 05.03.2019 Ex.CW1/D,
e. Courier receipt dt. 05.03.2019 Ex.CW1/E, and
f. Tracking report 13.03.2019 Ex.CW1/F respectively.
5. The complainant was recalled for his cross-examination u/s. 145 (2) NI Act wherein he stated that he had come to know about Chirag from OLX App and he had placed the orders of 5 mobile phones through Mr. Chirag. He further stated that he had filed the complaint lodged by him against Mr. Chirag regarding snatching of Rs.1,50,000/- and one phone brand 1+6T. He further stated that he had never met with accused prior or after 29.12.2018. He admitted that he had never met accused personally. He admitted that no document with regard to the settlement with Mr. Chirag and accused taking the liability of Mr. Chirag were executed. He further admitted that accused had never received any amount or any valuable thing CT Cases 9236/2019 Om Prakash Vs. Nitin Virmani Page 4 of 15 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.29 14:08:56 +0530 from him. He denied all other suggestions put to him.
6. Thereafter, vide order dated 28.03.2023, the evidence of complainant was closed.
7. The statement of accused u/s. 313 Cr.P.C was recorded on 26.08.2023 wherein he stated that he had not issued the cheques in question. He further stated that he had no knowledge of dishonour of the cheque in question. He further stated that he had not received any legal notice. He further stated that he did not know the complainant.
8. Thereafter vide order dt. 02.02.2024, the accused evidence was closed as despite repeated opportunities he had not moved any application for leading the defense evidence and the case was listed for final arguments.
ARGUMENTS ADVANCED ON BEHALF OF THE PARTIES
9. Sh. Varun Kashyap, Ld. counsel for the complainant has argued that the accused has failed to prove his defence during the trial. Ld. counsel for the complainant submitted that the complainant has been able to prove all the pre-requisites of Section 138 NI Act against the accused and accused has failed to rebut the presumption u/s. 138 NI Act. Ld. counsel has prayed that the accused be convicted of the offence u/s. 138 NI Act.
10. Per contra, Sh. Sachin Kumar, Ld. Counsel for the accused has argued that the complainant had filed a false and fabricated case CT Cases 9236/2019 Om Prakash Vs. Nitin Virmani Page 5 of 15 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.29 14:09:02 +0530 and that the accused had never known the complainant. It is further argued that the accused never had any relation with any Chirag and it is prayed that the accused be acquitted of the offence allaged against him.
POINTS OF DETERMINATION
11. The following points of determination arise in the present case:
A. Whether the complainant has successfully proven the facts which would raise the presumption u/s. 118 r/w Section 139 of NI Act by proving that the cheques in question bears the signature of the accused?
B. If yes, whether the accused has been successful in raising a probable defence?
THE APPLICABLE LAW
12. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first. Now, Section 138 Negotiable Instrument Act provides as under:
Section 138.- Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either CT Cases 9236/2019 Om Prakash Vs. Nitin Virmani Page 6 of 15 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.29 14:09:07 +0530 because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless - (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation -- for the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability. It is well settled position of law that to constitute an offence under S.138 N.I. Act, the following ingredients are required to be fulfilled: (1) drawing of the cheque by a person on an account maintained by him with a banker, for CT Cases 9236/2019 Om Prakash Vs. Nitin Virmani Page 7 of 15 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.29 14:09:13 +0530 payment to another person from out of that account for discharge in whole/part any debt or liability; (2) cheque has been presented to the bank within a period of six months (now three months) from the date on which it is drawn or within the period of its validity whichever is earlier; (3) returning the cheque unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque, (4) giving notice in writing to the drawer of the cheque within 30 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount, (5) failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice. Being cumulative, it is only when all the ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the N I Act.
The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption under Section 139, that the holder of cheque receiving the same of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. Analysing all the concerned provisions of law and various pronouncements in this regard, the Hon'ble Apex Court in Basalingappa v. Mudibasappa, AIR 2019 SC 1983, CT Cases 9236/2019 Om Prakash Vs. Nitin Virmani Page 8 of 15 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.29 14:09:19 +0530 noted at para 23 as follows [Bharat Barrel and Drum Manufacturing Company v. Amin Chand Pyarelal, (1999) 3 SCC 35; M.S. Narayana Menon alias Mani v. State of Kerala and another, (2006) 6 SCC 39; Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54; Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513; Rangappa v. Sri Mohan, (2010) 11 SCC 441 referred]:
(i) Once the execution of cheque is admitted, Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposes an evidentiary burden and not a persuasive burden.
CT Cases 9236/2019 Om Prakash Vs. Nitin Virmani Page 9 of 15 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date: 2024.05.29 14:09:25 +0530 (v) It is not necessary for the accused to come in the
witness box to support his defence.
To put in nutshell, the law regarding the presumption for the offence under Section 138 N.I. Act, is that the presumptions under Sections 118(a) and 139 have to be compulsorily raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted upon the accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. The onus to prove the issuance of the cheque lies upon the complainant, and the same has to be proved beyond reasonable doubt, unless the accused admits the same. Once the issuance of cheque is established, either by admission or by positive evidence, the presumption under Section 139 of the Negotiable Instruments Act, 1881 arises. We can summarize the general principles in the following way:
Onus of proof: Section 139 of the Negotiable Instruments Act, 1881 states that it shall be presumed, unless the contrary is proved that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. Therefore, here the onus shifts upon the accused to prove the nonexistence of debt or other liability. Section 139 of the N.I. Act uses the word "shall presume", which means that the presumption under Section 139 is rebuttable.
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Standard of proof: The standard of proof required to rebut the presumption under Section 139 is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or other liability, the onus shifts back to the complainant to prove by way of evidence, beyond reasonable doubt, that the cheque in question was issued by the accused in discharge, whole or in part, of any debt or other liability, and now the presumptions under Section 118 (a) and Section 139 will not come to the aid of the complainant.
Mode of Proof: The accused may adduce direct evidence to prove that the cheque in question was not supported by consideration, and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should prove the nonexistence of the consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that a bare denial of passing of consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances upon the consideration of which, the Court may either believe that the consideration and debt did not exist, or their nonexistence was so probable that a prudent man would, under circumstances of the case, act upon the plea that they did not exist.
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As discussed above, from the legal provisions and the law laid down in various judgments, it can be safely gathered that it is for the accused to rebut the presumptions. He can do so by cross examining the complainant, leading defence evidence, thereby demolishing the case of the complainant. It is amply clear that the accused does not need to discharge his or her liability beyond the shadow of reasonable doubt. He just needs to create holes in the case set out by the complainant. Accused can say that the version brought forth by the complainant is inherently unbelievable and therefore the prosecution cannot stand. In this situation the accused has nothing to do except to point inherent inconsistency in the version of the complainant or the accused can give his version of the story and say that on the basis of his version the story of the complainant cannot be believed.
FINDINGS OF THE COURT Points of determination number A:
13. The accused at the time of framing of notice under section 251 Cr.P.C. has disputed that the cheques in question i.e., Ex.CW1/B bear his signature upon the same. However during the trial, no efforts were made by the accused to prove that the signature on the cheques in question (Ex. CW-1/B) belong to him. No handwriting expert was examined. No admitted signatures were brought to the court with a request to the court to exercise its discretion under section 73 Indian Evidence Act 1872. To the dismay of this court, no suggestion was even put CT Cases 9236/2019 Om Prakash Vs. Nitin Virmani Page 12 of 15 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.29 14:09:40 +0530 to CW-1 during his cross-examination that the signature on the cheques in question does not belong to the accused.
14. Therefore, the defence that the cheques in question the signature on the cheques in question does not belong to the accused is liable to be rejected as it is merely a bald defence with has remained 'not proved'. Accordingly, once the signature upon the cheques in question has been admitted by the accused either expressly or impliedly, the presumption u/s. 139 NI Act becomes operative in favour of the complainant. In another words, it is presumed that the holder of a cheque received the cheque of the nature, as mentioned in Section 138 NI Act, for the discharge, in whole or in part, of any debt or other liability.
15. Accordingly, the point of determination number A is decided in the affirmative.
Points of determination number B:
16. Coming to the facts of the present case, the accused had taken a defence that he had given the cheques in question to his previous employer namely 'BMA Wealth Creditors' for the purposes of his salary and it is further argued that the same have been misappropriated by the complainant. It is noteworthy that the onus to prove a fact is upon a person who alleges the same.
Therefore, onus to prove the aforesaid was upon the accused and he has not taken any effective step during the trial to discharge the same. No witness(s) was called from the CT Cases 9236/2019 Om Prakash Vs. Nitin Virmani Page 13 of 15 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.29 14:09:45 +0530 company 'BMA Wealth Creditors' or no proof of his employment was brought on record to shed even a hint of light of truthfulness in the statement of the accused. Merely by conjuring up a defence during the trial is not sufficient to rebut the presumption under section 139 NI Act which stands in favour of the complainant. The judicial mind craves for any tangible proof and circumstances to believe, on the tangent of preponderance of probability, that what the accused alleges could be probable. Without the same, the court cannot come to the aid of the accused and unfortunately for him, he is left hapless.
17. The testimony of the complainant has remained unscathed during her cross-examination and he has proved that the accused had issued the cheques in question (Ex. CW-1/B) to the complainant. The complainant has further proved the same had got dishonoured vide return memo (Ex. CW-1/C) and despite receipt of legal notice (Ex. CW-1/D), the accused had failed to pay the cheque amount within 15 days of receiving the legal notice. No plausible defence has been raised by the accused during the trial. The accused has miserably failed to rebut the presumption under section 139 NI Act, which still stands in favour of the complainant.
18. Accordingly, the point of determination number B is decided in the negative.
CONCLUSION CT Cases 9236/2019 Om Prakash Vs. Nitin Virmani Page 14 of 15 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.29 14:09:51 +0530
19. In view of the aforesaid discussion, the accused Mr. Nitin Virmani is hereby held 'guilty' and accordingly, convicted of the offence under section 138 NI Act.
20. This judgment contains 15 pages. This judgment has been pronounced by the undersigned in the open court and each page bears the signatures of the undersigned.
21. Let a copy of the judgment be uploaded on the official website of District Courts, Saket forthwith.
Announced in the open court on this Court on 29th Day of May, 2024 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.29 14:10:00 +0530 (Rishabh Tanwar) MM (NI Act)-07/South District, Saket CT Cases 9236/2019 Om Prakash Vs. Nitin Virmani Page 15 of 15