Delhi District Court
In Re: Vikas Tomar vs . Sunder on 22 June, 2023
IN THE COURT OF MS. NIDHI BALA, METROPOLITAN MAGISTRATE,
MAHILA COURT-03, SHAHDARA DISTRICT,
KARKARDOMA COURT, DELHI.
IN RE: VIKAS TOMAR Vs. SUNDER
CNR No.DLNE020047342021
1. Complaint Case no. : 745/2021
2. Date of Institution of case : 21.10.2021
3. Name of the complainant : Vikas Tomar
S/o Late Sh. Dara Singh
R/o H.No. B-84, Village Gokalpur,
Delhi-110094
4. Name of Accused person : Sunder
S/o Sh.Bhagat Singh
At:- Suhaag Saree centre,
20 Feet Road, Near Saboli Fatak,
Meet Nagar, Delhi-110094.
5. Offence complained of : Section 138 NI Act
6. Plea of accused : Pleaded not guilty
7. Final Order/Judgment : CONVICTED
8. Date of judgment : 22.06.2023 (In view of transfer cum posting
order No. 25 / DHC/ Gaz./G-7/ VI. E2 (a) /
2023 dated 24.05.2023)
JUDGMENT
1. Vide this judgment the present complaint case for an offence punishable U/Sec.138 of the Negotiable Instruments Act, 1881 (hereinafter "the NI Act") is being decided.
2. Factual matrix of the case:-
2.1 In the year 2011,complainant's father on being approached by the accused, inducted the accused as a tenant in his shop situated at 20 Feet Road, Meet Nagar, Delhi on Digitally signed NIDHI by NIDHI BALA Date:
BALA 15:30:33 2023.06.22 +0530 CC No. 745/2021 Vikas Tomar Vs. Sunder Page no. 1 of 11 monthly rent of Rs.5,000/-(Five thousand) per month exclusive of electricity and water charges for the commercial purpose of running a shop of clothes and sarees under the name and style "Suhag Saree Centre" and accused paid the rent accordingly to the father of the complainant till his lifetime and after his death on 24.06.2015, complainant started collecting the rent of the tenanted shop from accused being the legal heir. Therefater in or around second or third week October 2019, accused approached the complainant for the friendly loan of Rs.2,50,000/-(Two lacs Fifty thousand) for the period of 6 months on the pretext of completing some order and said that he was having short of funds. Considering the relations with accused, complainant agreed and he gave the friendly loan of Rs.2,50,000/-(Two lacs Fifty thousand) to accused in cash in the last week of October 2019(hereinafter called "the loan in question"). complainant did not demand his money back from the accused after the six months due to the nationwide lockdown in the month of March 2020 and after the situation became little normal in June-July 2020, then, complainant requested the accused to return his money but accused expressed his inability due to lockdown and requested for more time of 6-8 months to return the money and complainant agreed for the same considering the situation. 2.2. Thereafter in the month of March 2021 complainant again requested the accused to repay the loan in question but accused again sought one month time and complainant agreed. However, there was again nationwide lockdown due to second wave of the pandemic and accused again sought more time to repay the loan in question. Thereafter in the month of June 2021 accused issued three cheques bearing no. 646234 in the sum of Rs.1,00,000/-(One lac), 646229 in the sum of Rs.50,000/-(Fifty thousand) both drawn on UCO Bank, G.T Road Shahdara and bearing no. 000028 in the sum of Rs.1,00,000/-(One lac)(hereinafter called " the cheque in question") drawn on Bank of India, G.T Road Shahdara all dated 27.07.2021, however, all three cheques were returned unpaid / dishonored for the reason "Old Cheque", "Old Cheque" and "Funds Insufficient"
respectively vide cheque return memos dated 31.07.2021 upon presentation by the complainant in his bank i.e. Kotak Mahindra Bank, Yamuna Vihar Branch, Delhi( within the jurisdiction of the court). Digitally signed NIDHI by NIDHI BALA Date:
BALA 15:30:44 +0530 2023.06.22 CC No. 745/2021 Vikas Tomar Vs. Sunder Page no. 2 of 11 2.3 Thereafter on 27.08.2021, Complainant sent a legal demand notice dated 25.08.2021 to accused through his counsel via speed post as well as through WhatsApp and called upon the accused to make the payment of the cheque amount in question within 15 days of receipt of legal notice but accused failed to make the payment of the cheque amount despite service of notice and therefore, the present complaint is filed by the complainant against the accused for the offence under Section 138 of the NI Act.
3. On being satisfied of the prima facie ingredients of Section 138 of the NI Act, cognizance was taken and summons were directed to be issued against the accused vide order dtd. 23.12.2021 and accused appeared alongwith counsel accordingly and was admitted to bail. On 25.03.2022 notice under Section 251 Cr.PC r/w Section 263(g) Cr.P.C was framed and served upon the accused to which he pleaded not guilty and claimed trial. While putting forth his plea of defence, accused admitted his signatures upon the cheque in question, fact of dishonour of the cheque in question and the fact of receiving the legal demand notice sent by complainant to him through counsel. The statement of accused was recorded under section 294 Cr.P.C qua the admitted facts. The plea of accused is being reproduced hereinafter for ready reference:
"I do not know the complainant personally. I know the father of complainant Dara Singh. I am running a cloth shop and the office of the father of complainant, who was a property dealer near my shop. I used to take small financial help from the father of complainant. I had taken Rs.1,00,000/- from the father of complainant in the year 2010 and had given the cheque in question towards security. I had repaid the said loan amount to the father of complainant. I had demanded my cheque back from the father of complainant, he assured me to return the same. Due to family relations, I did not bother for the same. Father of the complainant has now expired six years back. Complainant misused my security cheque. I do not owe the liability of cheque amount towards the complainant. I do not want to say anything else."
4. The accused was then granted liberty to move an application under Sec. 145(2) of NI Act to cross examine the complainant and the same was consequently filed and was allowed.
5. EVIDENCE OF COMPLAINANT:
Digitally signed by NIDHI NIDHI BALA Date:
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5.1 In Complainant's evidence, the complainant (CW-1) tendered his evidence
affidavit in post summoning evidence (as the solitary witness) and relied upon the following documents:
i) Ex. CW-1/A : Evidence of complainant by way of affidavit.
ii) Mark A: Copy of cheque bearing no. 646234.
iii) Mark B: Copy of cheque bearing no. 646229.
iv) Ex. CW-1/32: Cheque in question bearing no. 000028 dated 27.07.2021 in the sum of Rs. 1,00,000/-(One lac ) drawn on Bank of India, Shahdara Branch, Delhi( Signatures and the amount on the cheque are admitted by accused at the time of framing notice as well as his statement recorded Under Section 294 Cr.P.C).
v) Ex. CW-1/4: Original Cheque Return Memo dtd. 31.07.2021 (Admitted by accused at the time of his statement recorded Under Section 294 Cr.P.C)
vi) Ex. CW-1/5: Statutory Legal demand notice dtd. 25.08.2021 sent by Complainant to accused through counsel on 27.08.2021 (Admitted by accused at the time of framing notice as well as his statement recorded Under Section 294 Cr.P.C).
vii) Mark C and Ex. CW-1/7: Postal receipt qua legal notice sent through post and Internet generated tracking report of speed posts respectively( Fact of receiving legal demand notice is admitted by accused at the time of framing notice as well as his statement recorded Under Section 294 Cr.P.C).
viii) Ex. CW-1/8 : Screenshot of Whats App qua legal notice sent through Whats App( Fact of receiving legal demand notice is admitted by accused at the time of framing notice as well as his statement recorded Under Section 294 Cr.P.C).
ix) Ex. CW-1/9: Reply of legal demand notice given by accused.
x) Ex. CW-1/10: Certificate under section 65B of the Indian Evidence Act, 1872.
6. The accused was then examined under Section 313 Cr.PC, 1973 wherein all the incriminating evidence were put to the accused and he denied the alleged liability towards the complainant. Accused did not lead any defence evidence.
Digitally
signed by
NIDHI NIDHI BALA
Date:
BALA 2023.06.22
15:31:12
+0530
CC No. 745/2021 Vikas Tomar Vs. Sunder Page no. 4 of 11
7. Final arguments have been heard at length on behalf of complainant as well as accused, however, written arguments were not filed by any of the party despite giving the opportunity. Complete record has been perused carefully.
8. ARGUMENTS ON BEHALF OF COMPLAINANT:
8.1. During the course of arguments, Ld. Counsel for complainant reiterated the contents of the complaint and the evidence affidavit of the complainant and further argued that accused has admitted his signatures on the cheque in question as well as the fact of dishonour of the cheque in question and also admitted the fact of receiving the legal demand notice sent to him by the complainnat through counsel which he replied also and thereby attracts the presumption of section 118 and 139 of NI Act in favour of the complainant. Ld. Counsel further argued that accused has taken only one defence in this case that he did not take the loan in question but had taken the loan of Rs.1,00,000/-(One lac) from the father of complainant way back in the year 2010 and had given the cheque in question to the father of complainant at that time as security and he had already repaid the entire loan amount to the father of complainant, however, accused has failed to rebut the presumptionin favour of the complainant and prove his defence.
8.2. Ld. Counsel further argued that the complainant has been able to prove all the ingredients of the offence under Section 138 of the NI Act against the accused and accused has not produced any cogent and reliable evidence to prove his plea of defence since burden to prove the same is on him. The Complainant has thus prayed for conviction of the accused for the offence u/s 138 of NI Act.
9. ARGUMENTS ON BEHALF OF ACCUSED:
9.1. Per contra, Ld. Counsel for the accused argued that accused has no liability towards the complainant as alleged as he had no personal relations with the complainant but with his father who has now expired. He further argued that accused regularly used to take small financial helps from the father of the complainant and he had once borrowed Rs.1,00,000/-(One lac) in the year 2010 which he had already repaid and the cheque in question had been given to the father of complainant as security at that time which was not Digitally signed NIDHI byDate:NIDHI BALA BALA 2023.06.22 15:31:21 +0530 CC No. 745/2021 Vikas Tomar Vs. Sunder Page no. 5 of 11 returned by the father of complainant despite receiving the payment and accused did not bother for the same considering his relations with the father of complainant. Ld. Counsel further argued that complainant has misused the security cheque of the accused given to his father. Therefore, accused prays for the dismissal of the complaint and he be acquitted.
10. Now, the foremost provision of law to settle the entire dispute/controversy between the parties herein is Sec. 138 of NI Act and the same is being reproduced hereinafter for the ready reference:-
"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 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 provision 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 of other liability" means a legally enforceable debt or other liability. Digitally signed by NIDHI NIDHI BALA Date:
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10.1. The essential ingredients in order to attract Sec. 138 of NI Act, 1881 are as following:
i) The cheque for an amount is issued by the drawer to the payee/complainant on a bank account being maintained by him.
ii) The said cheque is issued for the discharge, in whole or in part of any debt or liability.
iii) The cheque is returned by the bank unpaid on account of insufficient amount to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with the bank.
iv) The cheque is presented within 3 months from the date on which it is drawn or within the period of its validity.
v) within 30 days a legal demand notice is issued by the payee or the holder in due course to the drawer of the cheque on receipt of information by him from the bank regarding the dishonour of the cheque.
vi) The drawer of the said cheque fails to make payment of the said amount of the money as demanded in the legal demand notice to the payee or the holder in due course within 15 days of the reciept of said notice.
vii) The debt or other liability against which the cheque was issued is legally enforceable.
11. Now, coming to the facts of the present complaint case keeping in view the essential ingredients of section 138 of NI Act.
11.1. In this case, it is not disputed but duly admitted by the accused that the cheque in question bear his signatures and belongs to him rather he has also admitted the amount having been written by him. Therefore, the essential ingredient (i) as discussed in the preceding paragraph stands fulfilled. Accused has further admitted the fact of dishonour of the cheque in question, hence, another essential ingredients (iii) and (iv) also stand proved by the complainant. Accused has further admitted the fact of receiving the legal demand notice sent to him by complainant rather he gave the reply also, hence, essential ingredients
(v) and (vi) also stand proved. Digitally signed NIDHI by NIDHI BALA Date:
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12. Now coming to the last and the remaining core ingredients (ii) and (vii) of Section 138 of NI Act as discussed in preceding Para 10.1 and the real issue of controversy herein i.e. whether the cheque in question was issued in discharge of any debt or liability, whole or in part and whether the same is a legally enforceable debt. Now in the present case accused has duly admitted his signatures on the cheque in question and also admitted the amount having been written on the same by himself, therefore, presumption of section 118 and 139 of the NI act,1881 arise here. It is already settled by the Hon'ble Apex Court as well as different Hon'ble High Courts including the Hon'ble High Court of Delhi in the catena of judgements that the holder of the cheque has the presumption of law in his favour as per Section 118 of the NI, Act and Section 139 of the NI Act which mandates that unless the contrary is proved, it is to be presumed 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. In the case in hand presumption of section 118 and 139 of NI Act arise in favour of the complainant which is being reproduced hereinafter for ready reference:-
"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;
(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 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 indorsements --that the indorsements 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 obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor 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. "Digitally signed
NIDHI byDate:NIDHI BALA BALA 2023.06.22 15:32:00 +0530 CC No. 745/2021 Vikas Tomar Vs. Sunder Page no. 8 of 11 "139. Presumption 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".
It is explicit in the said provision that the said presumption shall remain untill contrary is proved. In K. Bhaskaran vs Sankaran Vaidhyan Balan And Anr, (1999) 7 SCC 510. Further in Rangappa v. Sri Mohan, (2010) 11 SCC 441, the Hon'ble Supreme Court has held that the presumptions under Sections 118(a) and 139 of the NI Act are rebuttable in nature and for rebuttal of the same accused need not even step into the witness box as he can rebut the same by placing reliance on the material brought on record by the complainant. It is also a well settled legal position that the presumptions can be rebutted even by raising presumptions of fact and law on the basis of material available on record. It is further well settled that the standard required from the accused to prove his defence is preponderance of probabilities and accused need not prove his defence beyond reasonable doubts. Again in Basalingappa vs Mudibasappa (2019) 5 SCC 418, the Hon'ble Supreme Court categoracally held as under:-
"10. The complainant being holder of cheque and the signature on the cheque having not been denied by the accused, presumption shall be drawn that cheque was issued for the discharge of any debt or other liability. The presumption under Section 139 is a rebuttable presumption. Before we refer to judgments of this Court considering Section 118 and 139, it is relevant to notice the general principles pertaining to burden of proof on an accused especially in a case where some statutory presumption regarding guilt of the accused has to be drawn."
12.1. Needless to mention herein that the presumption contemplated under Section 139 of the Negotiable Instruments Act, is a rebuttable presumption. However, the onus of proving that the cheque was not in discharge of any debt or other liability is on the accused drawer of the cheque. In the present case initial presumptions in terms of Section 118 (a) and 139 of the NI Act duly arise not only regarding existence of legally enforceable liability in favour of the complainant but also regarding issuance of cheque(s) in question by the accused in favour of complainant in discharge of his aforesaid liability and accused has Digitally signed NIDHI by NIDHI BALA Date: BALA 2023.06.22 15:32:27 +0530 CC No. 745/2021 Vikas Tomar Vs. Sunder Page no. 9 of 11 miserably failed to rebut the said presumption. And the accused has miserably failed to rebut the said presumption and further failed to prove his defence since his only defence that he did not take the alleged loan from the complainant and the cheque in question had been given by him to the father of complainant way back in the year 2010 as security for the loan of Rs.1,00,000/-(One lac) which was not returned to him by the father of complainant and the said cheque has been misused by the complainant. The testimony of the complainant has remained intact nad unrebutted even during his cross examination done on behalf of the accused.
12.2. Again, this court is not oblivious of the position of law that the accused is only supposed to discharge his/her onus not beyound the reasonable doubt but on the principle of preponderance of probabilities which is again a settled position of law and it has been reitereted again and again through the precedents that the said appreciation depends upon the facts and circumstance of each and every case and no air tight formula can be adopted in order to ascertain as to whether accused has been successful in dislodging the tesitomy of complainant before the court. On the aspects of preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the court to conclude either that the consideration did not exist or that its nonexistence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. The Hon'ble Supreme Court in Rohitbhai Jivanlal Patel vs State of Gujarat and Another 2019) 18 SCC 106 and in various other rulings have time and again, emphasized that though there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfil the requirements of rebuttal as envisaged under section 118 and 139 of the NI Act. Further, it has been held in Rajesh Agarwal v. State, 2010 SCC online Del 2501 that:-
"9. .....There is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent. If an accused has a defence against dishonour of the cheque in question, it is he alone who knows the defence and responsibility of spelling out this defence to the court and then proving this defences is on the accused....."
13. In the present case in hand, keeping in view the facts and circumstances of the present case and the settled position of law in this regard, the presumption of law as per Digitally signed by NIDHI NIDHI Date:
BALA BALA 2023.06.22 15:32:34 +0530 CC No. 745/2021 Vikas Tomar Vs. Sunder Page no. 10 of 11 section 118(a) and section 139 of NI Act clearly come in picture for the favour of complainant and his burden of proving the fact of issuance of cheque in question in discharge of legally enforceable debt stands discharged and the accused has miserably failed to discharge his reverse onus. In the light of the foregoing discussions, this court is of the opinion that the accused has not led any cogent evidence to rebut presumptions under Sec. 118 and 139 of NI Act. There is nothing coming out during the trial which would probablise the defence raised by the accused or falsify the case of the complainant.
14. In the above view, the complainant has proved that the accused had issued the cheque in question in his favour for discharge of the legally enforceable liability. This Court has considered opinion that in the facts and circumstances of the present case, the complainant has proved his case against the accused for the offence under Sec. 138 Negotiable Instruments Act. Resultantly, the accused is, thus, held guilty and stands convicted for the said offence.
Digitally
signed by
NIDHI NIDHI BALA
Date:
BALA 2023.06.22
15:32:38
+0530
Announced in Open Court (NIDHI BALA)
today on 22.06.2023 MM (MC-03),SHAHDARA DISTRICT,
KARKARDOOMA COURT, DELHI
Certified that this judgment contains 11 pages and each page bears my signatures.
Digitally signedNIDHI byDate:NIDHI BALA BALA 2023.06.22 15:32:43 +0530 (NIDHI BALA) MM (MC-03), SHAHDARA DISTRICT, KARKARDOOMA COURT/22.06.2023 (As per transfer cum posting order bearing No. 25 / DHC/ Gaz./G-7/ VI. E2 (a) /2023 dated 24.05.2023) CC No. 745/2021 Vikas Tomar Vs. Sunder Page no. 11 of 11