Delhi District Court
25. The Supreme Court In The Case Of ... vs . on 28 October, 2021
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IN THE COURT OF ANURAG THAKUR
METROPOLITAN MAGISTRATE-02, CENTRAL, DELHI.
Re: Naveen Kalyan v. Ramesh Upreti
U/s. 138 Negotiable Instruments Act, 1881.
CC No. : 532442/2016
CNR No. : DLCT02-000793-2006
Date of Institution : 07.03.2006
Name of the complainant, : Naveen Kalyan s/o Jagdish Kalyan
his parentage and residence R/o 1921/44, Naiwala Street,
Karol Bagh, Delhi.
Name of accused, : Ramesh Upreti s/o Late G.P.Upreti
his parentage and residence R/o E-26A, Vatika Apartment,
MIG Flats, Maya Puri, Delhi-64.
Date when Judgment was reserved : 25.10.2021
Date of Judgment : 28.10.2021
Offence complained of : U/s 138 NI Act
Plea of accused : Not guilty
Final Judgment : Convicted
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. The factual matrix of the case is that the accused was a family friend of the complainant and he requested the complainant to provide a loan of Rs. 50,000/-. Acceding to the request, the complainant advanced loan of Rs. 50,000/- to the accused and for repayment of the same, the accused issued cheque of Rs. 50,000/- bearing no. 047141 dated 21.09.2005 drawn on Syndicate Bank, Delhi Army Headquarters Canteen Branch, in favour of the complainant. The accused assured that the cheque would be honoured on presentation. Believing the assurance, the complainant presented the cheque for encashment through his banker Indian Bank, Arya Samaj Road, Karol Bagh, Delhi, but the cheque was returned dishonoured for the reason "Funds Insufficient" vide a cheque return memo dated 27.09.2005. The complainant ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.10.28 18:44:46 +05'30' CC no. 532442/2016 Naveeen Kalyan v. Ramesh Upreti 2 of 14 contacted the accused, who requested the complainant to again present the cheque for encashment in January, 2006. The complainant adhered to the instructions but on presentation, the cheque was again dishonoured and returned back alongwith cheque return memo dated 16.01.2006 for the reasons "Funds Insufficient." A notice dated 24.01.2006 was sent by the complainant through his counsel to the accused demanding the payment of the cheque amount within a period of 15 days from the date of receipt of the demand notice. This notice sent through registered AD and UPC at the address of the accused was duly served upon him but it remained unheeded. Thereafter, the complainant filed the present complaint alleging commission of offence punishable u/s 138 of The Negotiable Instrument Act, 1881 (hereinafter to referred to as "The Act").
2. Pre-summoning affidavit of evidence was tendered by the complainant along with requisite documents i.e. original cheque no. 047141 Ex. CW.1/A, cheque return memo dated 27.09.2005 Ex. CW.1/B, cheque return memo dated 16.01.2006 Ex. CW.1/C, demand notice Ex. CW.1/D, receipt of registered post Ex. CW.1/E, receipt of UPC Ex. CW.1/F and acknowledgment card Ex. CW.1/G. The same were considered and vide summoning order dated 22.07.2006 the accused was summoned. Upon appearance, copies were supplied and thereafter, a notice u/s 251 of The Code of Criminal Procedure, 1973 (hereinafter called as "Cr.P.C") was served upon the accused for offence punishable u/s 138 of The Act to which the accused pleaded not guilty and claimed trial. Thereafter, in post notice evidence, the complainant tendered his evidence by way of affidavit Ex. CW.1/A.1 and he relied upon the same documents as tendered at the time of pre-summoning evidence. Besides examining himself as CW-1, the complainant examined his banker Mohd. Bilal, Officer at Indian Bank, Gurudwara Road, Karol Bagh, in support of its ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.10.28 18:45:14 +05'30' CC no. 532442/2016 Naveeen Kalyan v. Ramesh Upreti 3 of 14 case. CW-2 placed on record statement of bank account of complainant Ex. CW.2/1 (colly). Complainant evidence was closed on 25.05.2019. Statement of the accused u/s 313 Cr.P.C was recorded on 26.02.2021. To substantiate his defence, the accused examined himself as DW-1 and one Sh. Harish Pant as DW-2. The defence evidence was closed on 28.09.2021. Final arguments were heard on 12.10.2021. Written submissions have been placed on record by the accused.
3. Ld. Counsel for the complainant submitted that the statutory presumptions u/s 118 and 139 of The Act are in favour of the complainant as the accused admitted his signature on the cheque in question. He claimed that cogent oral and documentary evidence has been placed on record by the complainant and there is no material inconsistency in the examination-in-chief and cross- examination of the complainant. He stated that the case against the accused has been proved beyond all reasonable doubt and the accused has not been able to discharge the initial reverse onus cast upon him by The Act. He demanded that the accused be convicted for offence u/s 138 of The Act.
4. Per-contra, Ld. Defence counsel submitted that the source of funds for granting the loan of Rs. 3,45,000/- has not been established. He submitted that the loan amount, if any given, by the complainant is in violation of Section 269SS of Income Tax Act,1961 (hereinafter referred to as "IT Act") and the same cannot be recovered. He avowed that in toto loan of Rs.2,00,000/- only was taken by the accused and the present cheque was not given to the complainant. He adumbrated that the evidence tendered by the accused is trustworthy and inspires confidence as the same had withstood the rigour of cross-examination. He prayed the defence of the accused be accepted and he be acquitted of the offence punishable u/s 138 of The Act. He placed on record written ANURAG Digitally signed by ANURAG THAKUR THAKUR 18:45:30 +05'30' Date: 2021.10.28 CC no. 532442/2016 Naveeen Kalyan v. Ramesh Upreti 4 of 14 submissions in support of its oral arguments and he also relied upon judgments in the case of Krishna Janardhan Bhat v. Dattatraya G. Hegde MANU/SC/0503/2008, M. S. Narayana Menon v. State of Kerala and Ors. MANU/SC/2881/2006, Indus Airways Pvt. Ltd. and Ors. v. Magnum Aviation Pvt. Ltd. and Ors. MANU/SC/0288/2014, P. G. Joshy v. Jose Varghese and Ors. MANU/KE/3792/2019, Pawan Kumar v. State & Anr. CRL.REV.P.727/2016 and some other judgments to buttress his submissions.
5. Perusal of case file shows that the post notice affidavit of evidence was filed and tendered by the complainant and the same was exhibited as Ex. CW1/A1. The said affidavit dated 08.03.2010 is at complete variance with the case adumbrated by the complainant. Not only is the loan amount different in the affidavit and the complaint, but even other details like cheque number, date of dishonour of cheque, date of issuance of legal notice etc. are also different. Now either a wrong affidavit has been tendered in evidence or this affidavit has been wrongly tagged in this file by the staff as eight matters between the same parties litigating in same capacity were pending disposal and were being taken up together on each date. Be that as it may, if this affidavit is taken on face value then the case of the complainant deserves to be dismissed as there is no oral evidence to support the case of the complainant and in its absence, the accused cannot be convicted merely on the basis of some documents available on record not backed by any oral evidence. The accused could be exculpated on this ground only, however, it would be a travesty of justice if such technical approach is taken and the complaint is thrown out without deciding the same on merit. Both the respective counsels were asked about the post summoning affidavit tendered in evidence but the ld. defence counsel did not come forward to place on record the copy of post summoning affidavit of evidence supplied to him during trial and he desisted from making any statement at bar regarding ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.10.28 18:45:49 +05'30' CC no. 532442/2016 Naveeen Kalyan v. Ramesh Upreti 5 of 14 the post summoning affidavit of evidence.
6. An affidavit of evidence relied upon at the time of summoning the accused is available on record and it correctly mentions the details of the documents tendered in evidence as well as the contents of complaint. This affidavit is taken into consideration as the same seems to have been relied upon by the counsels in their arguments. None of the counsels stated during arguments that a wrong affidavit was tendered in evidence, had a wrong affidavit been supplied at the time of post notice evidence then the same would have been pointed out by the defence counsel and he would not have proceeded to cross- examine the complainant. It appears that the court staff had erroneously tagged the wrong affidavit in this file and this court shall rely on the pre-summoning affidavit of evidence for deciding this complaint.
7. I have cogitated over the rival submissions and perused the material on record. At this juncture, it is profitable to reproduce Section 138, 139 and 118 (a) of the Act:-
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 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 the 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 ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.10.28 18:46:08 +05'30' CC no. 532442/2016 Naveeen Kalyan v. Ramesh Upreti 6 of 14 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 cheques 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.
Section 118-Presumptions as to negotiable Instruments.-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;
Section 139-Presumptions in favour of holder.-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.
The accused never disputed his signature on the cheque in question. He did not dispute that the cheque was dishonoured. Once the signature is admitted by the accused then the presumption u/s 118(a) and 139 of The Act come into operation and it is presumed that the cheque in question was given for discharge of legally enforceable debt or liability. I am supported in my view by the judgment of the Supreme Court in the case of Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16. It is apposite to refer to another judgment of the Apex Court to appreciate the scope of presumptions U/s 118(a) and 139 of The Act and the manner in which the same can be rebutted by the accused. In the case of Basalingappa v. Mudibasappa, Crl. Appeal No. 636 of 2019 (SC) decided on 9th April, 2019, the Apex court after taking note of earlier judgments of that court in cases of M. S. Narayana Menon (supra), ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.10.28 18:46:23 +05'30' CC no. 532442/2016 Naveeen Kalyan v. Ramesh Upreti 7 of 14 Krishna Janardhan Bhat (supra), Kumar Exports v. Sharma Carpets (2009) 2 SCC 513, Rangappa v. Sri Mohan (2010) 11 SCC 441 summarized the position of law as follows:-
23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:-
(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 imposed an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to support his defence.
The legal position which emerges from the judgment is that presumptions u/s 118 and 139 of The Act are rebuttable in nature. The accused may rebut these presumptions by leading cogent defence evidence and in some clear and exceptional cases, from the case set out by the complainant i.e. the averments in the complaint, the contents of statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case. Let us carry out a scrutiny of the evidence adduced at the trial.
8. The first defence taken by the accused is that the complainant has not disclosed ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.10.28 18:46:42 +05'30' CC no. 532442/2016 Naveeen Kalyan v. Ramesh Upreti 8 of 14 the source of funds for advancing the alleged loan of Rs. 3,45,000/- to the accused. It is now evident that there were many transactions between the parties and present loan of Rs. 50,000/- was only one of those transactions. During his cross-examination, the complainant disclosed that at the time of granting the loan he was drawing a salary of Rs. 22,000/- per month and he arranged the amount from his own savings and took some amount from his father. He further stated that the entire loan amount of Rs. 3,45,000/- was reflected in his ITR for that year. No question was put to the complainant as to how much amount was taken by him from his father and how much amount was drawn by him out of his own savings to advance the loan. Even, no effort was made by the defence to call for the ITR of the complainant. The father of the complainant could have been called and examined by the accused to test the claim of the complainant of taking money from his father for advancing the loan. During his examination-in-chief as DW-1, the accused himself admitted that he had taken Rs. 2,00,000/- in toto from the complainant. From this statement of the accused, it can be deciphered that the complainant is a man who possessed resources to grant loans to the tune of lacs of rupees. It has also to be borne in mind that the presumption regarding the existence of a legally enforceable debt qua the cheque amount is in favour of the complainant. The Apex court in the case of Rohitbhai Jivanlal Patel v. State of Gujarat & Anr: (2019) 18 SCC 106 observed as follows:
19. Hereinabove, we have examined in detail the findings of the Trial Court and those of the High Court and have no hesitation in concluding that the present one was clearly a case where the decision of the Trial Court suffered from perversity and fundamental error of approach; and the High Court was justified in reversing the judgment of the Trial Court. The observations of the Trial Court that there was no documentary evidence to show the source of funds with the respondent to advance the loan, or that the respondent did not record the transaction in the form of receipt of even kachcha notes, or that there were inconsistencies in the statement of the complainant and his witness, or that the witness of the complaint was more in know ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.10.28 18:46:59 +05'30' CC no. 532442/2016 Naveeen Kalyan v. Ramesh Upreti
9 of 14 of facts etc. would have been relevant if the matter was to be examined with reference to the onus on the complaint to prove his case beyond reasonable doubt. These considerations and observations do not stand in conformity with the presumption existing in favour of the complainant by virtue of Sections 118 and 139 of the NI Act. Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not....... This contention of the accused does not hold water simply because at the time the complainant was questioned by the accused with regard to the source of funds, till that time, the reverse onus cast upon the accused to show that the cheque was not given for discharge of legally enforceable debt or liability had not been discharged.
9. Another leg of defence raised is that the unaccounted cash cannot be recovered. Reliance is placed by the accused on the apex court judgment in the case of G Pankajakshi Amma & Ors. v. Mathai Mathew (Dead) through LRs and Ors. (2004) 12 SCC 83 and judgments of Delhi High Court in the cases of Kulvinder Singh v. Kafeel Ahmed 2013 II AD (Delhi) 81, Vipul Kumar Gupta v. Vipin Gupta I(2013) DLT (Crl.) 823. This argument falls flat in the face of the fact that the complainant expressly stated that he mentioned the loan amount in his income tax return for that year. If the accused was unsatisfied by the response of the complainant then he ought to have summoned the record pertaining to the ITR of the complainant but the omission on his part cannot be counted against the complainant. As regards the loan amount not being part of the books of accounts of complainant is concerned, the same is not a relevant fact for determining a case of dishonour of cheque. In an order passed by the apex court while upholding the conviction ANURAG Digitally signed by ANURAG THAKUR THAKUR 18:47:19 +05'30' Date: 2021.10.28 CC no. 532442/2016 Naveeen Kalyan v. Ramesh Upreti 10 of 14 of accused in case of D.K.Chandel v. M/s. Wockhardt ltd. & Anr. (Criminal Appeal No. 132/2020 decided on 20.01.2020) it observed that production of account books/cash book may be relevant in the civil court but may not be so in the criminal case filed under section 138 of The Act. The judgment of the apex court given in G Pankajakshi Amma (supra) was in a civil matter and same is not relevant for decision of the present matter in view of observation made in D.K.Chandel (supra). The other two judgments of Delhi High Court were given in peculiar facts of those cases and are inapplicable to the present case. Even if the loan amount was not mentioned in the ITR by the complainant, it would still not be sufficient to throw out the case of the complainant In the case of Lekh Raj Sharma v. Yash Pal Gupta (2015) 221 DLT 585 the Delhi High Court held that a complaint u/s. 138 of the Act is maintainable even when the transaction is not shown in income tax return.
10. Another contention raised by the accused is that loan amount given in cash was in violation of Section 269SS of IT Act and the same is not legally enforceable debt, hence it is non-recoverable. The accused has placed reliance on the judgment of Apex Court in the case of Krishna Janardhan Bhat (supra) in support of this assertion. Section 269SS of the IT Act mandates that any advance taken by way of loan of more than Rs. 20,000/- is to be made by way of an account payee cheque only. Some findings of Krishna Janardhan Bhat (supra) have been overruled by Rangappa (supra) as discussed earlier. Though, the observation regarding the violation of section 269SS of IT Act made in Krishna Janardhan Bhat has not been expressly overturned by Rangappa but the fact that in Rangappa conviction in cheque bounce case (where loan of Rs. 45,000/- was given in cash) was upheld shows that Krishna Janardhan Bhat has been noticed and not followed by the apex court itself. This court aligns itself with view taken in Rangappa and decides this issue in ANURAG Digitally signed by ANURAG THAKUR THAKUR 18:47:38 +05'30' Date: 2021.10.28 CC no. 532442/2016 Naveeen Kalyan v. Ramesh Upreti 11 of 14 favour of the complainant. The case of complainant is that he gave Rs. 50,000/- in cash to the accused and this advance of money was part of a larger loan of Rs. 3,45,000/- given by him to accused. It is not in dispute that more than Rs. 20,000/- were given in cash by the complainant to accused in one go. The issue of violation of section 269SS of IT Act and the recovery of money given in violation of this provision was dealt with in detail by the Delhi High Court in the case of Dilip Chawla v. Ravinder Kumar & Anr. 2017 SCC OnLine Del 10246 wherein it was held as follows:
23. The advancement of loan in cash may entail negative consequences for a party especially an Income Tax assessee as his having acted in breach of Section 269SS of Income Tax Act, 1961. Chapter XXB provides for the requirement as to the mode of acceptance, payment or repayment in certain cases to counteract evasion of tax. Section 269SS mandates that no person, after the cut off date shall take or accept from any other person any loan or deposit otherwise than by an account payee cheque or an account payee bank draft if the amount is more than Rs.10,000/-.
Breach of Section 269SS of the Income Tax Act provides penalty to which a person would be subjected to under Section 271D.
24. However, Section 271D does not provide that such transaction would be null and void. The payer of money in cash, in violation of Section 269SS of the Income Tax Act can always have the money recovered.
25. The Supreme Court in the case of Assistant Director of Inspection vs. A.B.Shanthi, (2002) 6 SCC 259 has held as follows:-
"The object of introducing S. 269 is to ensure that a tax payer is not allowed to give false explanation for his unaccounted money, or if he has given some false entries in his accounts, he shall not escape by giving false explanation for the same. During search and seizure unaccounted money is unearthed and the tax payer would usually give the explanation that he had borrowed or received deposits from his relatives or friends sand it is easy for the so-called lender also to manipulate his records later to suit the plea of the tax-payer. The main object of S. 269-SS was to curb this menace.
7. In the light of the observations of the Apex Court, it cannot but be said that Sec. 269-SS only provided for the mode of acceptance payment or repayment in certain cases so as to counteract evasion of tax. Sec. 269-SS does not declare all transactions of loan, by cash in excess of Rs. 20,000/- as invalid, illegal or null and ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.10.28 18:47:56 +05'30' CC no. 532442/2016 Naveeen Kalyan v. Ramesh Upreti 12 of 14 void, while as observed by the Apex Court, the main object of introducing the provision was to curb and unearth black money. To construe Sec. 269-SS as a competent enactment declaring as illegal and unenforceable all transactions of loan, by cash, beyond Rs. 20,000/-, in my opinion, cannot be countenanced.
8. Yet another reason for this opinion is Sec. 271 -D which reads thus:--
"271-D. Penalty for failure to comply with the provisions of Section 269-SS. (1) If a person takes or accepts any loan or deposit in contravention of the provisions of Section 269-SS, he shall be liable to pay, by way of penalty, a sum equal to the amount of the loan or deposit so taken or accepted.
2) Any penalty imposable under sub-section (1) shall be imposed by the Joint Commissioner."
In that if a person takes or accepts any loan or deposit in contravention of Sec. 269- SS is liable to pay, by way of penalty, a sum equal to the amount of the loan or deposit so taken or accepted, as may be imposed by the Joint Commissioner.
11. The contravention of Section 269 SS though visited with a stiff penalty on the person taking the loan or deposit, nevertheless, the rigor of Section 271D is whittled down by Section 273B, on proof of bonafides. It cannot therefore be said that the transaction of the nature brought before this court could be declared illegal, void, and unenforceable".
From a reading of observations made in that judgment, it is evident that violation of Section 269SS IT Act in no way comes in the way of recovery of debt given in its contravention. It is not out of place to mention that after discussing section 269SS of IT Act, the Delhi High Court upheld the conviction of accused in Dilip Chawla (supra).
11. The accused also raised another contention that he never handed over the cheque in question to the complainant. The burden to prove this allegation is on accused. During his examination-in-chief as DW-1 he revealed that the cheque in question was given to one Ruchi Goel of Patel Nagar in presence of her mother. Neither Ruchi Goel nor her mother were examined as defence witnesses by the accused to lend some credibility to this claim made by him. Moreover, during his cross-examination DW-1 disclosed that he made no ANURAG Digitally signed by ANURAG THAKUR THAKUR 18:48:17 +05'30' Date: 2021.10.28 CC no. 532442/2016 Naveeen Kalyan v. Ramesh Upreti 13 of 14 complaint to any authority whatsoever about the misuse of cheque by the complainant. The accused also admitted during cross-examination that the legal notice sent by the complainant was received by him and he gave no reply to the same, the silence of the accused about the misuse of cheque by the complainant intrigues this court and the conduct of the accused is certainly not that of a prudent man. The accused could have placed on record the transaction slip of the cheque book to show to whom the cheque was issued but the same is also not tendered in evidence. It be noted that the presumption u/s 118(g) of The Act regarding the holder of the cheque being a holder in due course is in favour of the complainant. The common course of business has been followed is also to be presumed as mandated by section 114 illustration (f) of The Indian Evidence Act, 1872. Unless the contrary is proved, it shall be continued to be presumed that the cheque tendered in evidence by complainant was given to him by the accused.
12.As a last ditch effort, the accused examined Mr. Harish Pant as DW-2 who even in his examination-in-chief stated that the accused took only Rs. 1,60,000/ or 1,65,000/- from the complainant which is not the case of accused who claimed to have taken aggregate loan amount of Rs. 2,00,000/-. During cross- examination DW-2 disclosed that for the first time he came to know that the accused had availed a loan from the complainant was in year 2007 but the present case was filed in March 2006. Clearly, DW-2 had no knowledge about the present loan or even complete knowledge about the various transactions between the parties. His statement that he went to office of complainant more than 10 times to pay interest amount on loan taken by accused does not inspire confidence as no receipt for such payment is placed on record in defence evidence. The evidence of this witness is vague as it does not even mention the specific dates on which interest payments were made to the complainant. Even ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.10.28 18:48:39 +05'30' CC no. 532442/2016 Naveeen Kalyan v. Ramesh Upreti 14 of 14 the specific amount of interest purportedly paid on each such occasion has not even been disclosed. This witness does not help the accused in substantiating his defence.
13.To conclude, the signature on the cheque has been admitted by accused, the dishonour of cheque for insufficiency of funds in bank account of accused has been established, the accused admitted the service of legal notice, the amount mentioned in the demand notice was not paid in the statutorily stipulated period of 15 days, the various grounds of defence put up by the accused did not find favour with this court and the reverse onus cast upon the accused has not been discharged, consequently, the accused is convicted for the offence punishable u/s 138 of The Act.
Announced in the open court today i.e. 28th day of October 2021 ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.10.28 18:48:56 +05'30' (ANURAG THAKUR) METROPOLITAN MAGISTRATE -02 TIS HAZARI COURTS, DELHI This judgment consists of 14 pages and each and every page of this judgment is signed by me.
CC no. 532442/2016 Naveeen Kalyan v. Ramesh Upreti