Delhi District Court
Manish Yadav vs . Paras Pahwa on 24 January, 2023
IN THE COURT OF MR. VAIBHAV CHAURASIA
METROPOLITAN MAGISTRATE-04: NORTH WEST DISTRICT
ROHINI DISTRICT COURTS: NEW DELHI
Manish Yadav Vs. Paras Pahwa
PS Vijay Vihar
U/s 138 Negotiable Instruments Act
Date of Institution : 22.11.2016
Date of Judgment : 24.01.2023
JUDGMENT
(1) Serial number of the case : 24292/2016
(2) Name of the complainant : Sh. Manish Yadav
S/o.: Sh. Satish Yadav
R/o.: A2/118, Sector5,
Rohini, Delhi.
(3) Name of the accused : Sh. Paras Pahwa
S/o Sh. Raj Pahwa
R/o BG6, 7A, Paschim Vihar,
New Delhi110063
(4) Offence complained of/ : U/S 138 Negotiable
proved Instruments Act, 1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : Acquittal
(7) Reserved for judgment on : 24.01.2023
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. In brief, it is the case of the complainant that complainant and accused has friendly relation with each other; accused approached complainant for the friendly loan of Rs. 4 lacs in Case No. 24292/2016 Manish Yadav Vs. Paras Pahwa Page No. 1 of 14 month of May 2016 for three months; after expiry of three months, for the repayment of loan, accuses issued two cheque bearing no. 045046 dated 06.09.2016 for Rs. 3,00,000/ and cheque bearing no. 045047 dated 19.08.2016 for Rs. 1,00,000/ both drawn on Central Bank of India, Madipur which was returned dishonoured dated 15.09.2016 and 04.10.2016 respectively to which legal notice was issued dated 08.10.2016 vide postal receipt 06.10.2016 and despite the legal notice the accused did not make the payment of the cheque. Hence, the present complaint was filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter "the Act").
2. The complainant led presummoning evidence by way of affidavit (Ex CW1/A) and relied upon documents i.e., :
cheque bearing no. 045046 dated 06.09.2016 for Rs. 3,00,000/ and cheque bearing no. 045047 dated 19.08.2016 for Rs. 1,00,000/ both drawn on Central Bank of India, Madipur (Ex.CW1/1 and Ex. CW1/2); the bank return memo dated 15.09.2016 and 04.10.2016 respectively (Ex CW1/3 and Ex. CW1/4); legal notice dated 08.10.2016 (Ex CW1/5), postal receipt 06.10.2016 (Ex CW1/6 and Ex.
CW1/7) and tracking report (Ex. CW1/8) which were duly considered by the Ld Predecessor and the accused was summoned vide order dated 22.11.2016 for offence u/s. 138 NI Act.
3. After the accused entered appearance, accused was admitted to bail and notice was framed against accused Case No. 24292/2016 Manish Yadav Vs. Paras Pahwa Page No. 2 of 14 on 19.07.2018 by the Ld Predecessor wherein the accused stated the defence that
4. After the application of the accused under Section 145 (2) NI Act was allowed by the Ld Predecessor vide order dated 19.07.2018, the accused was permitted to crossexamine the complainant.
5. During the evidence, the complainant was duly cross examined by the Counsel for accused in which complainant stated that he was aware of his complaint on record. He know accused Paras Pahwa 23 years back and as a friend before the date of the transaction. They have common friend as Amit. The accused has two brothers. He met his brother. He did not remember but he was sure that he mentioned the same. The accused has approached him for the loan in May 2016. He did not remember the exact date. He was involved in the business of his father who was into the business of Stone crashing and was the distributor of company 'Reckett Colmen'. his father use to earn 45 lacs per month way back in 2016. He admitted that ITR has been paid his father with respect to aforesaid earning. Witness volunteered that he also use to file his ITR in particular. He did not have any knowledge as to under what capacity and under what source of income he use to file his ITR. Question was put to witness as under what capacity you use to work with your father and what was your independent source of income ? To which he has answered him and his brother were shown as a partner in his father's business. He never use to have any independent source of Case No. 24292/2016 Manish Yadav Vs. Paras Pahwa Page No. 3 of 14 income in May 2016. He have advanced loan to accused in cash. He have borrowed the loan amount from his father that was advanced in cash to the accused. For the assessment year 20162017, he have paid the income tax on the amount of Rs. 3 lacs. He admitted that he have not advanced loan to the accused from his personal account. He admitted that he have not filed ITR for the year 20162017. He did not know that as far as the loan amount which was borrowed by him from his father was with his father as a cash amount or was withdrawn from his father's bank account. He admitted that he have not placed on record balance sheet from his father which could reflect that his father had such amount in cash as per his balance sheet or any documentary evidence which could reflect that such amount was withdrawn from the bank account of his father. He admitted that the aforementioned facts qua his father has not been revealed in his complaint. Question was put to witness as was it correct that the common friend that you have stated in your examination, his full name was Amit Khanna? to which he has answered No. His name was just 'Amit'. He denied that he alongwith the accused and Amit use to indulge in Gambling Activities. He denied that Amit use to accompany him during the initial proceedings of that case. He denied that the two cheques involved in that complaint were in fact issued by the accused to Amit Khanna because the accused lost sum of Rs. 50,000/ in betting / Gambling and in order to repay that sum in two installments. The above two blank cheques were handed over to Amit by the accused. He denied that he alongwith Case No. 24292/2016 Manish Yadav Vs. Paras Pahwa Page No. 4 of 14 Amit Khanna misused the above cheques in order to show false liability of loan of Rs. 4 lacs extended to the accused and has filed that false case against the accused. He denied that on both cheques Ex.CW1/1 and Ex.CW1/2 in the name and the amount has not been filed in his writing. He admitted that the writings on the cheques Ex.CW1/1 and Ex.CW1/2 are different. The cheque for a sum of Rs. 1 lac i.e. Ex.CW1/1 was issued in the month of August 2016. He did not remember the exact date. The cheque for a sum of Rs. 3 lac i.e. Ex.CW1/2 was issued by the accused after about 15 days. He denied that the accused has not issued the above two cheques Ex.CW1/1 and Ex.CW1/2 in due discharge of his liabilities. He denied that accused has taken any loan for a sum of Rs. 4 lacs from him. He denied that he never owe such financial capacity to the extent that he could not have advanced the loan amount of Rs. 4 lacs to the accused. He admitted that no documentary evidence was created towards the loan amount with the accused. He admitted that no one witnessed the loan transaction between him and accused and also no one witnessed at the time when he have handed over cash to the accused. He had a smart phone in May 2016. He admitted that after three months that he had advanced the loan, he have telephonically called the accused to remind him his duty to repay the loan. The witness was shown the complaint and the documents filed with the complaint but he was unable to show any document or CDR detail by which he can prove that he spoke to the accused after three months to remind the accused for repayment of the loan amount. He denied Case No. 24292/2016 Manish Yadav Vs. Paras Pahwa Page No. 5 of 14 that he was deposing falsely to implicate the accused in connivance with his friend Amit to whom the cheques were handed over towards repayment of Rs. 50,000/ which the accused lost in betting/gambling. He denied that he did not have means/financial capacity to advance a loan of Rs. 4 lacs to the accused. He denied that any friendly loan of Rs. 4 lacs was extended to the accused towards loan. He denied that he have manipulated the above two cheques exhibited Ex.CW1/1 and Ex.CW1/2 with the help of his friend Amit. He denied that he have filed false complaint before that court exhibited as Ex.CW1/A.
6. The statement of accused was thereafter recorded under Sec 313 CrPC on 06.05.2022 wherein the entire incriminating evidence was put to the accused and accused reiterated the defence taken already. Accused stated that he has never taken any loan amount of Rs. 4 lakhs. He did not know complainant and the cheque was handed over to Amit Khanna and had never handed cheque and further it is improbable that such an amount of Rs. 4 lacs would be advanced to young person like him.
7. The accused however chose not to lead any evidence qua defence.
8. Final arguments advanced by Sh. Manish Dixit, Ld counsel for the complainant and by Sh. Jatan Singh, Ld. Counsel for the accused have been carefully considered alongwith the entire evidence on record.
9. To prove an offence under Section 138 NI Act, it is required to be proved that:
Case No. 24292/2016 Manish Yadav Vs. Paras Pahwa Page No. 6 of 14(i) The accused issued a cheque on an account maintained by him/her with a bank for payment of money to another from out of that account;
(ii) That cheque has been issued for the discharge (either in whole or in part) of any debt or other liability;
(iii)That 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;
(iv) That cheque has been returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) The payee or the holder in due course of the cheque 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 30 days of the receipt of information by him/her from the bank regarding the return of the cheque as unpaid; and
(vi) The drawer of such cheque failed to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
10. In the case at hand, the accused has not disputed that the cheque in question has been issued on an account maintained by accused with a bank and hence the ingredient
(i) is deemed to proved as not disputed.
Case No. 24292/2016 Manish Yadav Vs. Paras Pahwa Page No. 7 of 1411. In respect of ingredient (iii) and (iv), the complainant has testified that the cheque in question i.e. cheque bearing no. 045046 dated 06.09.2016 for Rs. 3,00,000/ and cheque bearing no. 045047 dated 19.08.2016 for Rs. 1,00,000/ both drawn on Central Bank of India, Madipur (Ex.CW1/1 and Ex.CW1/2) was returned dishonoured on the bank return memo dated 15.09.2016 and 04.10.2016 respectively (Ex.CW1/3 and Ex.CW1/4). During the crossexamination of complainant, no questions were put to the complainant nor any suggestions were given to the complainant as to the cheque not having been presented to the bank within the period of its validity. Hence the ingredient (iii) ie the factum of the cheque in question having been presented during the period of its validity is deemed to be proved as not disputed.
12. Further, with the factum of dishonour of the cheque in question being not disputed by the accused and rather as having been admitted by accused in statement under Sec 313 CrPC, the ingredient (iv) is also deemed to be admitted as not disputed.
13. In respect of the legal notice, as CW1, the complainant has testified that upon dishonour of cheque in question, complainant sent notice dated 08.10.2016 (Ex.CW1/5) to the accused for return of the cheque amount vide , postal receipt dated 06.10.2016 ie within 30 days of dishonour of the cheque. The complainant also relied upon postal receipt dated 06.10.2016 (Ex.CW1/6 and Ex.CW1/7) and tracking report (Ex.CW1/8). The accused has however denied receipt of the notice of demand.
Case No. 24292/2016 Manish Yadav Vs. Paras Pahwa Page No. 8 of 1414. It is pertinent to note that Section 114 of Evidence Act, 1872 is applicable to communications sent by post and it enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the General Clauses Act envisages that when a registered notice is posted, it is presumed to have been served unless rebuttal is given. The accused herein has admitted the fact of legal notice being served. Hence ingredient (v) stands satisfied.
15. In respect of ingredient (vi), it is pertinent to note that admittedly the accused has not made any payment to the complainant in respect of the cheque in question till date. Hence even the ingredient (vi) stands proved.
DEBT/LIABILITY
16. It is a well settled position of law that once execution of the negotiable instrument is admitted, the presumption under Section 118(a) NI Act would arise that it is supported by a consideration. However, such presumption is rebuttable and the accused can prove the nonexistence of consideration by raising a probable defence. If the accused 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 complainant who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the accused of proving the nonexistence of the consideration can be either direct or by bringing on record Case No. 24292/2016 Manish Yadav Vs. Paras Pahwa Page No. 9 of 14 the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the accused is entitled under law to rely upon all the evidence led in the case including that of the complainant as well. To disprove the presumption, the accused has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist." (Reliance placed on Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal, (1993) 3 SCC 35).
17. The NI Act also provides under Section 139 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. Thus, 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. 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. 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. (Reliance Case No. 24292/2016 Manish Yadav Vs. Paras Pahwa Page No. 10 of 14 placed on Rangappa vs Sri Mohan, (Criminal Appeal no 1020 of 2010 decided by the Hon'ble Supreme Court).
18. In the present case, from the evidence on record, the accused has been able to bring on record certain facts which make the case of the complainant improbable.
19. Firstly, in the present case, financial capacity of the complainant was challenged. This stands affirmed in view of the fact that during crossexamination, the complainant had admitted that though he used to file ITR in particular but submits ITR has been paid by his father. Complainant admitted that he never use to have any independent source of income in May 2016. This creates serious doubt about the financial capacity of the complainant to advance loan of amount as high as Rs. 4 lacs.
20. Secondly, the complainant stated that he advanced the loan in cash. Complainant for the first time came with the novel story that he has borrowed loan amount from his father that was advanced in cash to the accused. It is unlikely that father will advance amount of such high quantum to child who do not have independent source of income. And even if he will advance loan, he will do so infront of him. It is interesting that complainant admits that he files ITR of only 3 lacs but how he has advanced loan amount of 4 lacs is something which is not sustainable.
21. Thirdly, no specific date of advancement of loan in complaint, affidavit and during crossexamination has been revealed which further cast doubt upon the version of the complainant.
Case No. 24292/2016 Manish Yadav Vs. Paras Pahwa Page No. 11 of 1422. Fourthly, the defence of accused mentions Amit as a person who is common friend to both accused and complainant which further stands corroborated by the crossexamination of the complainant wherein he admits the acquaintance with the Amit.
23. Fifthly, complainant is further ignorant whether the loan amount which was borrowed by him from his father was with his father as a cash amount or was withdrawn from his father's bank account. This cast serious doubt about to source of loan amount which shall be interpreted against the complainant.
24. Sixthly, it is admission on the part of complainant that he has not advanced loan to accused from his personal account, rather he has borrowed from his father. It is uncertain under what capacity the complainant has instituted this case against accused when he is not admitting that loan was advanced in personal capacity by the complainant.
25. Seventhly, in the facts and circumstances as illustrated above, it is rather beyond prudence that father will lend amount as high as Rs. 4 lacs to the friend of the son and son having no independent source of income and no document will be executed to that effect. Further it is admission on part of complainant during crossexamination that no documentary evidence was created towards the loan amount.
26. Eightly, the consistent defence taken by the accused in his application under Section 145(2) of the Act, at the time of framing of charge, under statement of accused and further Case No. 24292/2016 Manish Yadav Vs. Paras Pahwa Page No. 12 of 14 the line upon which crossexamination has been held does not rules out the version of the accused and it is settled that one who is consistent ought to be believed.
27. Hence, by bring forth the circumstances as enumerated above, the accused has discharged the initial onus of proof showing that the existence of debt / liability / consideration was improbable / doubtful and hence the onus shifted back to the complainant to prove it as a matter of fact.
28. However, the complainant herein has miserably failed to do so. It is duly noted that the complainant herein has no proved his source of income, has not proved his financial capacity, has not examined his father to back up his version, has not filed ITR of his father even and utterly fail to explain his source of income.
29. It is a settled law that standard of proof on the part of an accused and that of the prosecution a criminal case is different and while prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities (Reliance placed on Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54).
30. In view of the above discussion and in the totality of the facts and circumstances of this case, the complainant has miserably failed to prove that the cheque in question was issued in discharge of any existing legally enforceable debt or other liability.
Case No. 24292/2016 Manish Yadav Vs. Paras Pahwa Page No. 13 of 1431. Hence, with the presumptions arising in favour of the complainant under Sections 118 and 139 of the Act having been rebutted by the accused by preponderance of probabilities, and with the complainant failing to lead clear, cogent and credible evidence to prove that the cheques in question were issued in discharge of any legally enforceable debt or liability, the accused Sh. Paras Pahwa S/o Sh. Raj Pahwa is held not guilty for the offence punishable under Section 138 of the Negotiable Act and hence, accused stands acquitted.
32. Accused Sh. Paras Pahwa S/o Sh. Raj Pahwa is directed to furnish bail bond and surety bond in the sum of Rs. 25,000/ under section 437(A) of the Code of Criminal Procedure and is directed to be present before the Ld. Appellate Court as and when notice is served upon the accused.
33. File be consigned to Record Room after due compliance.
Announced in the open court on 24.01.2023 (VAIBHAV CHAURASIA) Metropolitan Magistrate04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 14 pages and each page bears my signature.
(VAIBHAV CHAURASIA) Metropolitan Magistrate04/ North West District Rohini District Court/New Delhi Case No. 24292/2016 Manish Yadav Vs. Paras Pahwa Page No. 14 of 14