Delhi District Court
Comp. Id No. 114/16 Raj Kumar Garg vs . Jitender Kumar 1/13 on 20 January, 2020
IN THE COURT OF MS. SNIGDHA SARVARIA : MM-01 (SHAHDARA) :
KARKARDOOMA COURTS : DELHI.
Comp ID No. 114/2016
DATE OF INSTITUTION : 03.08.2015
DATE RESERVED FOR JUDGMENT: 20.01.2020
DATE OF JUDGMENT : 20.01.2020
IN THE MATTER OF:
Sh. Raj Kumar Garg
S/o Late Sh Mitthan Lal
R/o 4/1755, Gali No. 3, Mahaveer Block,
Bholanath Nagar, Shahdara,
Delhi110032.
........Complainant
VERSUS
Sh. Jitender Kumar
Proprietor of Dass Medical Hall,
Chemist & Druggists,
27/49, Vishwas Nagar, Shahdara,
Delhi110032.
..........Accused
JUDGMENT:
a) Srl. No. of the case & Date of institution : 114/2016 & 03.08.2015
b) Date of commission of offence : after the 15th day of service of legal demand notice
c) Name of the complainant : Sh. Raj Kumar Garg
d) Name of the accused : Sh. Jitender Kumar
e) Nature of offence complained of : S. 138 NI Act
f) Plea of the accused person : Accused pleaded not guilty
h) Final Order : Convicted.
i) Date of order : 20.01.2020
COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT, 1881
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:
Comp. ID No. 114/16 Raj Kumar Garg Vs. Jitender Kumar 1/13
Brief facts
1. The brief facts of the present complaint filed U/s. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act") are that the accused and the complainant are having friendly relations/acquaintance with each other and the accused is running a Chemist Shop under the name and style of "Dass Medical Hall, Chemist & Druggists, 27/49, Vishwas Nagar, Shahdara, Delhi-110032 and accused approached the complainant for a friendly loan of Rs. 2,00,000/- on 18.06.2012. The accused assured to return the aforesaid loan amount within a period i.e. upto 15.04.2015 and considering the requirement of the accused, the complainant gave Rs.2,00,000/- as friendly loan and the accused in discharge of his liability, issued a post dated cheque bearing no. 117590 dated 15.04.2015 for a sum of Rs. 2,00,000/- drawn on Bank of India, Shahdara Branch, G.T Road, New Delhi- 32 and assured the complainant that the said cheque would be encashed at the time of its presentation. The complainant accepted the cheque on the assurance of the accused and accordingly presented the same with his banker i.e. Bank of Baroda, Vishwas Nagar, Delhi-32 but the said cheque was received back with endorsement 'Exceeds Arrangement'. The complainant communicated with the accused regarding the bouncing of the cheque but in vain. Thereafter, the complainant sent a legal demand notice dated 26.06.2015 through regd. AD/U.P.C. The accused received the legal demand notice but did not pay the loan amount to the complainant. Therefore, the accused has committed an offence, which is an offence under the provision of Section 138 of NI Act as well as amount to cheating also.
Proceedings Before Court
2. In the present complaint summons were issued against the accused. The accused entered appearance and notice of accusation was framed against the accused on 19.11.2016 to which accused pleaded not guilty and claimed trial. Defence of the accused was also recorded on 19.11.2016 wherein he stated that the cheque in question bears his signatures but he did not fill the contents of the cheque and that the cheque was issued as security cheque to the complainant. He stated that he did not receive the legal demand notice and the AD card does not bear his signatures. He stated that the complainant purchased Comp. ID No. 114/16 Raj Kumar Garg Vs. Jitender Kumar 2/13 medicine/cosmetics/general worth of more than Rs. 2,00,000/- and when he demanded the balance amount the complainant misused the cheque.
3. In support of his case, the complainant examined himself as CW-1 and was cross-examined. He proved his evidence by way of affidavit as Ex CW1/1; cheque bearing no. 117590 dated 15.04.2015 for a sum of Rs. 2,00,000/- issued in favour of the complainant drawn on Bank of India, Shahdara Branch, GT Road, New Delhi-32 as Ex.CW1/A ; return memo dated 16.06.2015 with reason 'Exceeds Arrangement' as Ex CW1/B; Legal notice dated 26.06.2015 as Ex.CW1/C; postal receipt and acknowledgment Ex. CW-1/D and Ex. PW1/E, respectively; undertaking of accused as Ex. CW/F and closed complainant's evidence vide order dated 07.07.2017.
4. Statement of accused under S. 313 Cr.P.C was recorded on 23.07.2018 wherein he denied the case of the complainant and stated that he did not receive the legal demand notice but address mentioned on AD Card is correct but denied his signatures on the AD card. He also stated that the accused runs a medical shop and complainant stays in his neighbourhood and had a business of chhoti elaichi/cardamom in which he suffered losses and after it he asked the accused that he would purchase some general items and medicines from the shop of the accused and thus accused sold general items like Chyawanprash, hing goli, haajmola etc to the complainant for his business and medicines for the house of the complainant with a margin od 2% at wholesale rate and for the same complainant gave advance payment of Rs. 2 Lakh in cash and the cheque in question was handed over as security in lieu of Rs. 2 Lakh. He stated that undertaking Ex CW1/F was also executed by the accused with respect to said Rs. 2 Lakh. He stated that complainant carried on purchases from him and purchase amount was adjusted towards Rs. 2 Lakh and this routine continued for 2 ½ - 3 years and complainant gave him money from time to time and accused issued more cheques to the complainant. No further undertaking in writing were executed because because regular dealings were going on. He stated that on demanding return of cheques, the complainant returned few cheques and for remaining the complainant had said would return later. Accused stated that he did not insist for return of the remaining cheques as he had relations with the complainant for last 25 years being neighbours.
Comp. ID No. 114/16 Raj Kumar Garg Vs. Jitender Kumar 3/13
5. The accused deposed as DW1 in his defence and he was also cross- examined at length. He placed on record photocopies of bill books Mark D, which were later exhibited as Ex DW1/1. Accused closed defence evidence on 13.09.2019.
6. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
Findings
1. The following are the components of the offence punishable under Section 138 of Negotiable Instrument Act:-
(1) drawing of the cheque by a person on an account maintained by him with a banker, for payment to another person from out of that account for discharge in whole/part any debt or liability, (2) presentation of the cheque by the payee or the holder in due course to the bank, (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.
7. The accused denied receiving of legal demand notice. Considering that the legal demand notice was sent at Dass Medical Hall, Chemist & Druggists, 27/49, Vishwas Nagar, Shahdara, Delhi-110032 and summons issued to the accused at the address Dass Medical Hall, Chemist & Druggists, 27/49, Vishwas Nagar, Shahdara, Delhi-110032 by the court were duly served upon the accused and accused mentioned his address as Dass Medical Hall, Chemist & Druggists, 27/49, Vishwas Nagar, Shahdara, Delhi-110032 in his bail bonds accepted on 4.10.16 and same address was mentioned by the accused in the notice framed on 19.11.2016 and statement under S. 313 CrPC recorded on 23.07.2018, thus, clearly the said defence of the accused is without any merits and contrary to the record. Also, the Comp. ID No. 114/16 Raj Kumar Garg Vs. Jitender Kumar 4/13 defence of the accused that he did not receive legal demand notice Ex CW1/C is without any merits as in the decision in C.C. Alavi Haji v Palapetty Muhammad & Anr. (2007) 6 SCC 555, which states that in case, drawer of the cheque raises an objection that he never received Legal Notice U/s 138 of N.I. Act, he can within 15 days of the receipt of summons/ process of court make payment of the cheque amount and in case, he does not do so, he cannot complain that there was no proper service of Legal Notice U/s 138 of N.I. Act. Hence, in view of the Judgment in C.C. Alavi Haji (supra) the presumption of service of Legal Notice has arisen if not of the legal notice Ex CW1/C sent vide post then through issuance of summons by the court. Also, the accused has not proved by leading evidence of a handwriting expert that signaturs on AD Card Ex CW1/E are not of the accused.
8. As regards the defence raised by the accused that he did not fill the details in the cheques in question himself and had handed over blank signed cheques to the complainant, at this juncture it would be worthwhile to discuss the provisions under S. 20 and S. 118 of the Negotiable Instruments Act, which is as under:
20.Inchoate stamped instruments.-
Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in [India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as then case may be, upon it a negotiable instrument, instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount, provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.
118. Presumptions as to negotiable instruments of consideration Until the contrary is proved, the following presumptions shall be made:-
(a) of consideration-that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) as to date- that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance- that every accepted bill of exchange was accepted within a reasonable time after its date its date and before its maturity;
(d) as to time of transfer.- that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of endorsements - that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamps-that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course; provided that, where the instrument has been contained from its lawful owner, or form any person in lawful custody thereof, by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
9. Further, in Mojj Engineering Systems Limited & Ors. Vs. A.B. Sugars Ltd.; 154 (2008) Delhi Law Times 579, the Hon'ble Delhi High Court had observed as Comp. ID No. 114/16 Raj Kumar Garg Vs. Jitender Kumar 5/13 under :-
7. Even otherwise, prima facie, it was the petitioners who had handed over the undated cheque for a certain amount to the respondent in terms of a contract between the parties. Since an undated cheque cannot be encashed, it can only mean that the petitioners had authorized the complainant to enter an appropriate date on it. In Young Vs. Grote (1827) 4 Bing. 253 it was held that when a blank cheque is signed and handed over, it means the person signing it has given an implied authority to any subsequent holder to fill it up. Similarly, in Scholfield Vs. Lord Londesborough (1895-1899) All ER Rep 282 it was held that whoever signs a cheque or accepts a bill in blank, and then puts it into circulation, must necessarily intend that either the person to whom he gives it, or some future holder, shall fill up the blank which he has left. This common law doctrine was also affirmed by Justice Macnaghten in Griffiths Vs. Dalton [1940] 2 KB 264 where it was held that the drawer of an undated cheque gives a prima facie authority to fill in the date. This aspect has also been incorporated in Section 20 of the Negotiable Instruments Act, which deals with Inchoate Stamped Instruments. The Supreme Court in T.Nagappa Vs. Y.R.Murlidhar, (2008) 5 SCC 633 while discussing the scope of Section 20 held that by reason of this provision, a right has been created in the holder of the cheque. Prima facie, the holder thereof is authorized to complete the incomplete negotiable instrument. In that view of the matter, all further issues that may be raised by the petitioners regarding the nature and scope of the authority of the respondent to put any particular date on the cheque in question, are all matters for trial.
8. It is not as if the cheque came to be issued without any consideration whatsoever in the first place or that there was such a glaring defect in the complaint that the decision of the Trial Court to issue summons has ex facie resulted in miscarriage of justice or an abuse of the process of Court, and therefore interference under Section 482 Cr.P.C. to quash the proceedings is warranted in the interest of justice. The question whether the consideration for which the cheque was issued was ultimately satisfied or whether the cheque was wrongly sought to be encashed, are all issues that must also be decided at the trial. The Supreme Court in the case of M.M.T.C. Ltd. and Another Vs. MEDCHL Chemicals and Pharma (P) Ltd. and Another,(2002) 1 SCC 234 held as follows:
"13.....the well-settled law that the power of quashing criminal proceedings should be exercised very stringently and with circumspection. It is settled law that at this stage the Court is not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. At this stage the Court could not have gone into merits and/or come to a conclusion that there was no existing debt or liability."
The Court further held that:
"17. There is therefore no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they have to discharge in the trial. At this stage, merely on the basis of averments in the petitions filed by them the High Court could not have concluded that there was no existing debt or liability."
10. From the aforesaid discussion, it is manifest that by reason of the provision under S. 20 NI Act, a right has been created in the holder of the cheque. Prima facie, the holder thereof is authorized to complete the incomplete negotiable instrument. Mere averment to the effect that the accused/drawer of the cheque did not fill in the details on the cheque except for signing on the cheque is not sufficient. Thus, merely that allegation of issuance of incomplete negotiable instrument does not create absolute defence in favour of the accused unless corroborative evidence exists to show that by threat or fraud, a cheque was taken. There is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. Respondent has not denied his signatures on the cheques. Once he has admitted his signatures on the cheques he cannot escape his liability on the ground that the same has not Comp. ID No. 114/16 Raj Kumar Garg Vs. Jitender Kumar 6/13 been filled in by him. When a blank cheque is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blank which he has left. A person issuing a blank cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank cheque had been issued by him. Thus, this defence is of no assistance to the accused. .(See also:Jaspal Singh vs State decided on 16.11.2016 by Hon'ble High Court of Delhi in Crl. Rev P. 160/2016; Lillykutty vs Lawrence - 2003 (2) DCR 610 (Ker) (DB) & Ravi Chopra vs State and Anr. - 2008 (2) JCC (NI) 169).
11. In view of the aforesaid and since issuance of cheque in question by the accused is not disputed, hence, presumption U/s.139 of the NI Act is raised.
12. In Rangappa v. Sri Mohan AIR 2010 SC 1898 it was observed by the Hon'ble Supreme Court as under :
"14. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. " (emphasis added)
13. In view of the decision in Rangappa's case laid down by the Supreme Court, the presumption raised under Section 139 of the NI Act is of legally enforceable debt or liability and it is for the accused person to raise a probable defence to rebut the presumption.
Comp. ID No. 114/16 Raj Kumar Garg Vs. Jitender Kumar 7/13
14. S. 139 NI Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While S. 138 of the NI Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under S. 139 NI Act is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by S. 138 NI Act can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong those impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant accused cannot be expected to discharge an unduly high standard of proof.
15. The reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under S. 139 NI Act, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.
16. As discussed herein above, under S. 139 NI Act strong rebuttable presumptions in favour of the complainant arise but same can be rebutted by the accused by way of credible defence.
17. As regards the defence of the accused that the cheque in question was a security cheque and thus complaint under S. 138 NI Act is not maintainable is without any merits in view of the decision of the Hon'ble Apex Court in ICDS Ltd vs Beena Shabeer - 2002 (2) SCC 426 and Credential Leasing & Credits Ltd. vs Shruti Investments & Anr. Of Hon'ble High Court of Delhi decided on 29/06/2015 in Crl LP No. 558/2014 and Suresh Chandra Goyal vs Amit Singhal Crl Appeal nos. 601/2015 decided on 14/05/2015 and Credential Leasing & Credits Ltd. vs Shruti Investments & Anr. Of Hon'ble High Court of Delhi the security cheques fall within the purview of S. 138 NI Act .
Comp. ID No. 114/16 Raj Kumar Garg Vs. Jitender Kumar 8/13
18. As per decision in Credential Leasing & Credits Ltd. vs Shruti Investments & Anr. Of Hon'ble High Court of Delhi decided on 29/06/2015 in Crl LP No. 558/2014 it has been held that the scope of S. 138 would cover cases where ascertained and crystallized debt or other liability exists on the date when the cheque is presented and not only to the cases where ascertained and crystallized debt or other liability exists on the date on which it was delivered to the seller as a post dated cheque or as a current cheque with a credit period.
19. The defence raised by the accused is that the accused runs a medical shop and complainant stays in his neighbourhood and had a business of chhoti elaichi/cardamom in which he suffered losses and after it he asked the accused that he would purchase some general items and medicines from the shop of the accused and thus accused sold general items like Chyawanprash, hing goli, haajmola etc to the complainant for his business and medicines for the house of the complainant with a margin of 2% at wholesale rate and for the same complainant gave advance payment of Rs. 2 Lakh in cash and the cheque in question was handed over as security in lieu of Rs. 2 Lakh. He stated that undertaking Ex CW1/F was also executed by the accused with respect to said Rs. 2 Lakh. He stated that complainant carried on purchases from him and purchase amount was adjusted towards Rs. 2 Lakh and this routine continued for 2 ½ - 3 years and complainant gave him money from time to time and accused issued more cheques to the complainant. No further undertaking in writing were executed because regular dealings were going on. He stated that on demanding return of cheques, the complainant returned few cheques and for remaining the complainant had said would return later. Accused stated that he did not insist for return of the remaining cheques as he had relations with the complainant for last 25 years being neighbours.
20. The Hon'ble Supreme Court in Kumar Exports vs. Sharma Carpets - (2009) 2 SCC 513 held, that bare denial of the passing of the 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 consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable Comp. ID No. 114/16 Raj Kumar Garg Vs. Jitender Kumar 9/13 that a prudent man would under the circumstances of the case, act upon the plea that they did not exist.
21. As regards the defence of the accused that he has issued the blank signed cheques in question to complainant as security regarding advance payment made by the complainant for the future goods to be purchased by the complainant from the accused, the same is not believable as in his statement under S. 313 CrPC the accused himself has stated that the complainant suffered losses in his business and thereafter the complainant asked the accused that he would purchase some general items and medicines from the shop of the accused and thus accused sold general items like Chyawanprash, hing goli, haajmola etc to the complainant for his business and medicines for the house of the complainant with a margin of 2% at wholesale rate. If complainant had suffered losses then why and how would he pay in advance to the accused for the goods to be purchased in future.
22. The defence of the accused that he did not take any loan from the complainant same is without any merits as to prove this defence accused should have brought on record and proved his bank account statement to show that he had sufficient funds and did not require any loan and was in good financial state at the relevant time which, accused has not proved on record and so the said defence of the accused is without any merits.
23. Furthermore, accused has admitted acknowledgment Ex CW1/F, wherein nowhere it is mentioned that the cheque in question was issued as security cheque to the cmplainant. But accused has not brought on record original bill books to prove Ex DW1/1 that complainant made purchases from the shop of the accused of the sum of the cheque amount or more. The accused also did not prove his books of accounts to prove transactions with the complainant.
24. Also, accused has failed to prove and explain why he did not demand return of cheques in question like any ordinary prudent man when he came to know that his cheques were misused, if at all so. Furthermore, accused has not explained like any ordinary prudent man why he did not issue stop payment instructions to his banker or made complaint to the police against the complainant in this regard. Also, for non- return of cheques in question the accused could have issued demand notice through Comp. ID No. 114/16 Raj Kumar Garg Vs. Jitender Kumar 10/13 his counsel, which he did not do. Thus, this defence of the accused is without any merits.
25. The defence of the accused is also not believable as accused being a businessman is well aware of consequences of handing over blank signed cheque and now cannot take benefit of his own acts. Also, it is not believable that because of long standing relations with the complainant accused would not issue stop payment instructions to his banker or make complaint to the police etc on his cheques having been not returned by the complainant as accused is a businessman and not a naïve villager.
26. The accused has relied upon Section 3 of the Punjab Registration of Money Lender's Act, 1938 to state that the present complaint is barred as the complainant has no licence to lend money. The said defence is also not maintainable as only a suit for recovery and application for execution of decree are barred under S. 3 of the Punjab Registration of Money Lender's Act, 1938 if the lender does not has a licence for lending. The said provision under S. 3 of the Punjab Registration of Money Lender's Act, 1938 does not bar the complaint under S. 138 NI Act.
27. The contention of the accused that as per S.269SS r/w S.271D IT Act any loan granted in cash above Rs.20,000/- attracts penalty and thus the present complaint is not maintainable is without any merits as violation of section 269SS r/w S.271D IT Act entails penal consequences provided under the Income Tax Act and present complaint is not barred under S. 269SS r/w S.271D IT Act.
28. Also, in his defence recorded on 19.11.2016 accused had taken the defence that complainant has to pay certain amount to the accused for purchases made by the complainant and instead complainant misused the cheque in question of the accused. The accused has not proved this defence by bringing on record and proving his books of accounts to show that complainant has dues towards the accused. Thus, non-production of evidence which could be exclusively in the possession of the accused raises adverse inference qua the case set up by the accused.
29. The burden to prove his defence is upon the accused which as discussed hereinabove he has failed to prove. According to S. 103 of Indian Evidence Act burden of proof means that a party has to prove an allegation before he is entitled to Comp. ID No. 114/16 Raj Kumar Garg Vs. Jitender Kumar 11/13 a judgment in his favour. S. 103 of Indian Evidence Act provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of S. 103 of Indian Evidence Act amplifies the general rule of S. 101 of Indian Evidence Act that the burden of proof lies on the person who asserts the affirmative of the facts in issue.
30. From the foregoing discussions, the accused has not led any such cogent evidence to rebut presumptions under S. 118/139 NI Act. In view of the aforesaid discussions, the court finds that the accused has not been unable to prove any probable defence and has failed to rebut the presumption raised U/s 118/139 of the NI Act.
31. The defence of the accused that complainant has not proved consideration in lieu of cheques in question is without any merits as only after the accused has rebutted the presumption under S. 139 NI Act the burden shifts on the complainant to prove the source of money out of which loan was granted to the accused.
32. In this regard in Rohitbhai Jivanlal Patel vs State of Gujarat decided by hon'ble Apex Court in Crl Appeal no. 508/2019 decided on 15.03.2019, it has been held as under:
In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the accused-appellant. The aspect relevant for consideration had been as to whether the accused-appellant has brought on record such facts/material/circumstances which could be of a reasonably probable defence.
33. Since the accused has failed to rebut the presumption raised U/s. 118/139 of the NI Act, there is no need to go into complainant's evidence for proving the complainant's case. There is nothing coming out in the cross examination of complainant's witness which would probablise the defence raised by the accused or falsify the case of the complainant. Therefore, the complainant has been able to Comp. ID No. 114/16 Raj Kumar Garg Vs. Jitender Kumar 12/13 prove his case beyond reasonable doubt.
34. The decision in AR Chellappan vs ARE Thirugnanam--2018 (1) Crimes 509 (MAD); Kulvinder Singh vs Kafil Ahmed - 2014 (2) JCC (NI) 100 (Del); Deepshikha Kumari vs Leela Infrastructure- 2012 (2) DCR 589 (DEL); Saj Properties Pvt Ltd vs Virender Dagar - (2015) 1 DCR 613 (DEL) and MS Narayanan Menon vs State of Kerela - (2006) 6 SCC 39 and Total Finael India Ltd vs Rashmi Parnami- 2013 (4) LRC 187 relied upon by the accused is set out in different fact situations and thus this judgment cannot be applied to the facts of the present case and is of no assistance to the accused. It is well settled that a judgment of a Court is only an authority for what it actually decides and not what logically follows from it and judgment of the Court is not to be read mechanically as a Euclids Theorem nor as if it was a statute. The Honble Apex Court has held in Deepak Bajaj vs. State of Maharashtra & another AIR 2009 SC 628 that it is well settled that a judgment of a Court is not to be read mechanically as a Euclids Theorem nor as if it was a statute.
35. The complainant has been able to prove that the cheque in question i.e. cheque bearing no. 117590 dated 15.04.2015 for a sum of Rs. 2,00,000/- issued in favour of the complainant drawn on Bank of India, Shahdara Branch, GT Road, New Delhi-32 as Ex.CW1/A was issued in discharge of legally recoverable liability owed to the complainant by the accused.
36. Therefore, the accused Jitender Kumar is convicted for the offence punishable U/s. 138 of the Negotiable Instruments Act in respect of cheque Ex CW1/A. Digitally signed by SNIGDHA SNIGDHA SARVARIA (Announced in open SARVARIA Date:
2020.01.20 Court on 20.01.2020) 16:40:48 +0530 (Snigdha Sarvaria) MM-01/Shahdara/KKD.
20.01.2020
Judge Code: 0530
Comp. ID No. 114/16 Raj Kumar Garg Vs. Jitender Kumar 13/13