Delhi District Court
Madras High Court. The Relevant Portion ... vs . on 5 February, 2013
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IN THE COURT OF SH. BABRU BHAN, METROPOLITAN MAGISTRATE,
(SPL. NI COURT )14 DWARKA COURT, NEW DELHI
M/s Mata Vaishno Finsec (P) Ltd.
Vs.
Anjan Dutt
C.C. No. 397/12
P.S.: Roop Nagar U/s 138 N.I. Act
JUDGEMENT
a) Date of commission of 15.09.2010
offence:
b) Name of Complainant M/s Mata Vaishno Finsec (P) Ltd. through
Authorized Representative Sh. Sant Lal.
c) Name of the accused and Anjan Dutt, S/oSh. B.C. Dutt, R/o J90/2,
Address: Gali No.15, 31/12 Pusta, Kartar Nagar,
Delhi110053.
d) Offence complained of: U/s 138 N.I. Act
e) Plea of accused: Pleaded not guilty
f) Final order: Acquittal
g) Date of order: 05.02.2013
h) Date of institution of case: 22.09.2010
i) Date of decision of case: 05.02.2013
CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 1 of 25
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Brief facts and reasons for decision of the case:
1. By way of the present judgment, I shall decide the complaint case u/s 138 Negotiable Instrument Act 1881 (as amended upto date) filed by the complainant, M/s Mata Vaishno Finsec (P) Ltd. through its Authorized Representative Sh. Sant Lal, against the accused Anjan Dutt S/o Sh. B.C. Dutt.
2. The factual matrix of the case is that on the request of the accused, the complainant has granted an auto loan of Rs.1,25,000/ to the accused in 2008. Accused in discharge of his liability, arising out of this loan, issued a cheque bearing number 143555 dt. 25.07.2010 amounting of Rs.72,000/ drawn on Indian Bank, Desh Bandhu Gupta Road, New Delhi110055 in favour of the complainant. However, on presentation of the same for encashment, the cheque was dishonoured vide cheque returning memo dated 28.07.2010 with the remarks "Funds Insufficient". The complainant has thereafter given a legal notice of demand dated 11.08.2010 to the accused which was sent by registered post/ UPC thereby calling upon the accused to make the payment of cheque amount. It is further averred that the accused failed to make the payment in response to the legal notice of CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 2 of 25 3 demand. Resultantly, the complainant has filed the instant complaint for prosecution of the accused u/s 138 N.I. Act.
3. After the complaint was filed, the Authorized Representative of the complainant led the presummoning evidence by way of an affidavit and after hearing the counsel of the complainant and considering the entire material and documents on record, summons were issued against the accused vide order dated 22.09.2010, by Ld. Predecessor, for offence u/s 138 N.I. Act 1881. On appearance of accused, a separate notice u/s. 251 Cr.P.C., dated 05.02.2011 was served upon the accused, to which he pleaded not guilty and specified his defence that the cheque in question was given blank for the purpose of security and complainant has deliberately filed the present complaint against him despite repayment of loan and no legal demand notice was received by him.
Complainant Evidence:
4. In complainant evidence, the complainant got examined only one witness CW1, Sh. Sant Lal, Authorized Representative of the complainant Bank. The Evidence of CW1, Mr. Sant Lal, was filed in post summoning CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 3 of 25 4 evidence by way of affidavit Ex.CW1/A. The other documents relied upon by the complainant are:
i)Board Resolution, Ex. CW1/1,
ii)The original cheque, Ex. CW1/2,
iii)The original cheque returning memo, Ex. CW1/3,
iv)Legal notice of demand, Ex. CW1/4,
v) The postal receipts, Envelope and AD Card are Ex.CW1/5 to Ex.CW1/9.
5. In his cross examination, CW1 deposed that he was working with the complainant company since 2009. Witness further deposed that he is authorized by the complainant through board of resolution to represent the complainant in the present matter. He admitted that board resolution was not passed in his presence. Voluntarily he stated that his presence was not required there. Witness further deposed that security is not taken from the borrower for granting of loan to him. He admitted that a written loan agreement was executed between the accused and the complainant company but loan agreement was not filed on record. He further replied that he filed the documents on advice of his counsel. Further, witness deposed that loan was sanctioned to the accused in 2008. He admitted that no written CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 4 of 25 5 document filed on record to show that accused was sanctioned the loan. He further admitted that guarantor was introduced by the accused at the time of sanctioning of loan to him. Further he denied that a guarantor is taken from the borrower before sanctioning loan. Further replied that accused had paid three installments and the date of said payment could be told by by him after verifying from records. Witness denied the suggestion that accused did not pay Rs.8,507/ after 10.10.2008. Further, he deposed that no blank cheques from borrower were being received by the complainant at the time of sanctioning of loan. He also denied the suggestion of non receipt of legal demand notice by the accused. He stated that all the details were filled up by the accused in the impugned cheque. He also denied the suggestion that no statement of account was maintained by the complainant company to show that accused availed the loan facility in the year 2008. He also denied that accused had paid the loan amount during the period 23.08.06 to 16.05.08. He also denied the suggestion of not visiting the house of the accused after 2008. Finally, he denied the suggestion that accused and his guarantor did not visit the O/o complainant firm in 1st week of July,2010 towards settlement of loan account. Thereafter, witness closed evidence vide his separate statement. Statement of accused:
6. After the Complainant evidence was closed, the accused was examined u/s 313 read with Section 281 Cr.P.C, in which all the incriminating evidence CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 5 of 25 6 against the accused were put to him. During recording of his statement, he admitted that he had availed loan facility to the tune of Rs.1,25,000/for purchasing of vehicle in 2006 but not in 2008. Further he stated that no settlement was arrived between the parties. He stated that impugned cheque was given blank signed at the time of sanctioning of loan in year 2006 to him. He denied filing of all the details except his signature in impugned cheque. Moreover, acceptance of legal demand notice is also denied by the accused. Further, he stated that he availed the loan facility in 2006 and was repaying the same till 2008. He expressed his willingness to lead the defence evidence, accordingly matter was listed for defence evidence. Defence Evidence:
7. In defence evidence, accused examined himself as DW1 and produced the original payment receipts and filed copies of the same as Ex.DW1/1 to Ex.DW1/17. He further deposed that he had repaid the entire loan amount to the complainant and nothing is outstanding against him. During cross examination he deposed that he had taken only one loan of Rs.1,50,000/ in 2006 from the complainant and the repayable amount was Rs.1,80,000/. Witness further deposed that sum of Rs.1,50,000/ has been paid to the complainant by way of cash in installment of Rs.8,000/ each till date. CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 6 of 25 7 Voluntarily he stated that 23 installments were paid through cheques also. He further deposed that repayment schedule commenced from July/August, 2006 to 2008. DW2 further deposed that he received the loan amount in sum of Rs.1,50,000/ through cheque. He further volunteered that the said cheque was issued in the name of the registered owner of the financed vehicle but failed to tell the loan account number. After perusing the code 'MVFS/667' he expressed his inability to identify the same being loan agreement number. Further, he replied that he had not taken any other loan from the complainant except the one in 2006. He denied the suggestion of handing over the impugned cheques against the loan in 2008. Witness admitted his signatures at point X on document mark 'A'. Witness finally denied that he had taken another loan 'MVFS/786' in sum of Rs.1,25,000/ from the complainant in the year 2008.
Arguments:
8. Thereafter, Ld. Counsels for the complainant and accused addressed their respective final arguments at length. Before appreciating the evidences and arguments of both the parties, it would be appropriate to advert to the relevant provisions of N.I. Act.
Section 138 NI Act reads as under:
CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 7 of 25 8 138 dishonour of cheque for insufficiency, etc., of funds in account.where any cheque drawn by a person on account maintained by him with a bank or payment of any amount another person from out of that account of money for discharge, in whole and in part, of any debt or other liability, is returned by them 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 terms which extend to twice the amount of the cheque, or with both Provided that nothing contained in this Section shall apply unless
vi)the cheque has been presented to the bank within a period of six months form the date on which it is drawn or within the period of its validity whenever is earlier.
CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 8 of 25 9
vii)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
viii)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 fifteen days of the receipt of the said notice.
ix)ExplanationFor the purpose of this section, "debt or other liability means of legally enforceable debt or other liability.
9. Now, I would appreciate the evidence and arguments adduced and addressed by both the parties.
CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 9 of 25 10
10. It is averred by the ld. Counsel for the complainant that accused had availed a loan facility in 2008. Accused defaulted in payment of his installments. Thereafter, he settled the matter with the complainant and issued two post dated cheques. In pursuance to that settlement, accused handed over the impugned cheque which bounced on presentation due to insufficient funds. Subsequently accused failed to make the payment within statutory period despite service of legal demand notice, hence committed the offence u/s 138 of N.I. Act. On the other hand it is contended by the learned counsel for the accused that although the accused had availed the loan facility from complainant but it was availed in 2006. It is stated that accused never availed any loan in 2008. Further averred that the cheque in question was given blank signed for the purpose of security in 2006 at the time of loan agreement which was subsequently filled up and misused by the complainant. Ld counsel for the accused argued that no loan document and the statement of account has been filed by the complainant to show the liability of the accused on the date of the cheque despite admitted by CW1 that a written loan agreement was executed with the accused. It is further contended that the accused had already repaid the loan taken by him in 2006. The payment receipts are also on record.
CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 10 of 25 11
11. I have perused the evidence on record and considered the submissions of both the Ld. Counsels. The complainant witness has stated in his affidavit that the accused had availed the loan facility in the sum of Rs.1,25,000/ from the complainant in 2008. This fact is entirely disputed by the accused and it is stated by him that he had availed the loan facility in 2006 and not in 2008. It is further stated by the accused that he has already repaid the loan taken in 2006. As far as impugned cheque is concerned, it is stated that it was issued blank signed, for purpose of security at the time of loan agreement in 2006. Whereas, the complainant has stated in affidavit that the cheque in question was issued in discharge of liability arising out of the loan agreement in 2008. It is stated by the complainant witness in his affidavit that accused was irregular in payment of his loan installment and had settled his loan (of 2008) account in 1st week of July, 2010 and in pursuance to the said settlement the cheque in question was issued.
12. One of the main ingredient of the offence under section 138 N.I. Act is existence of legally enforceable debt or liability. It is expressly clear from the bare reading of section 138 N.I. Act that to attract the criminal liability under this section, existence of legally enforceable debt or liability is condition precedent.
CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 11 of 25 12
13. At this stage, it is necessary to refer to the provisions of section 118 and section 139 of N.I. Act. Under section 118, unless the contrary is proved , it is to be presumed that the Negotiable Instrument had been made or drawn in discharge of legal debt or liability. Under Section 139 the court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part of debt or liability. Thus, in complaints under section 138 the court has to presume that the cheque had been issued for a debt or liability. This presumption is rebutable.
14. Undoubtedly, there is a presumption that whenever a negotiable instrument is drawn or made, unless the contrary is proved, it have to be presumed that same was drawn for the consideration. But important thing is that whether production of a cheque by the holder and admission of the signature on the same by the drawer is sufficient to held the holder criminally liable for the dishonour of the same . Merely stating in the complainant and the affidavit that cheque in question was given for the repayment of the loan will not advance the cause of the complainant. It is pertinent to mention here that complainant witness has deposed in his affidavit that the there was a settlement between the accused and the CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 12 of 25 13 complainant, in pursuance to the said settlement the impugned cheque was issued by the accused. On the other hand the said settlement has been denied by the accused. No date of the said settlement has been mentioned nor it has been mentioned that with whom the said settlement was arrived at. Furthermore, if the same was reduced in witting, why same is not filed on record. These facts raise a strong doubt on the complainant's claim and probables the defence of the accused that no such settlement was arrived at.
15. In his testimony, accused has stated that he was disbursed a loan amount of Rs.1,50,000/ in 2006 and he also stated that he has already repaid the same. The payments receipts of the loan of 2006 are already on record as Ex.DW1/1 to Ex.DW1/17. Availing any loan in 2008 is completely denied by him.
16. From the testimony, of the DW1 it is clear that the stand of the accused is that although he availed the loan facility from the complainant in 2006 but had already repaid the same to the complainant. Further, it is stated that accused never availed any loan facility in 2008. He was not aware that whether some blank signed cheque were received from the accused or not as he was not working with the complainant company. In such circumstances, CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 13 of 25 14 burden shifted upon the complainant to prove the loan agreement of 2008 and also to prove the factum of alleged settlement which has been denied by the accused. In such scenario it was duty of the complainant to prove the outstanding liability of the accused by placing on record the statement of account and loan agreement. Although it is true that for prosecution under section 138 of N.I. Act, complainant is not obliged to prove the original transaction or the original consideration as it is expected in a suit for recovery of money but when execution of the cheque and debt or liability is disputed by the accused then it becomes the duty of the complainant to prove the liability of the accused by placing on record the relevant documents i.e. Statement of account or loan agreement. Even if we assume that since it is not a civil suit therefore there is no need to file any loan documents in view of the presumption under section 139 of N.I. Act still complainant could have filed loan agreement which could evince as to that whether accused had availed any loan facility in 2008 or not. Since complainant is financial company, offering financial facility and admittedly maintaining its books of account therefore it was incumbent upon it to have filed its books of account in support of its claim. To further bolster my observation, I would like to refer to a judgment in Murugan Financiers V. P. V, Perumal, 2006 Cr LJ 269(Mad) wherein the order acquitting the accused was upheld on the finding that since the complainant being a finance CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 14 of 25 15 company has not produced books of account in support of claim, complaint has not proved debt or legally enforceable liability satisfactorily. In the present case also complainant has failed to bring any document on record to prove that accused had availed a loan facility in 2008. Accused alleged that he had availed a finance facility in 2006 and it is proved by him by placing on record the payment receipts. On the other hand, the 2008 loan agreement is alleged by the complainant, hence it was for them to prove the same.
17. Also in case of M. Vairavan v. T.M Selvaraj Crl A No. 352 of 2009, Madras High Court. The relevant portion of the judgment is reproduced here as under :
"in the instant case, the appellant/complainant is only an individual, therefore, it cannot be said that nonproduction of his account books would affect the case under section 138 of N.I. Act, though the same is relevant in a case relating to financial companies and other institutions having books of account. The decision of this court in Murugan Financiers Vs, P.V. Perumal reported in 2005 Crl L.J. 269 ended in acquittal on CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 15 of 25 16 account of the non production of books of accounts, sought for by the accused therein has no relevancy in this case."
18. So, it is clear from the above judgment that the complainant being the financial company maintaining the record of every borrower and frequently enter into such loan transactions ought to have produced loan agreement and the statement of account of the accused in order to prove loan agreement and outstanding liability. Although, ld. Counsel for the complainant put a photocopy of an agreement mark 'A' to accused during his cross examination, but a photocopy is not admissible piece of evidence. Admission of signatures is not the admission of document itself. Moreover, AR for the complainant has stated during his cross examination that loan agreement was executed but was not filed on record. When loan agreement was executed then why the original was not filed, not explained by the CW1. Under these circumstances, I am inclined to arrive at a finding that complainant has not establish the factum of loan agreement in 2008. As far as photocopy of the loan agreement put to the witness during his cross is concerned, same is not admissible piece of evidence. Complainant could have filed the original loan documents during complainant evidence, since specific question was asked to CW1 during his cross examination. CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 16 of 25 17
19. In M.S. Narayana Menon Vs. State of Kerla and Others 2006 SCC 39, it has been held by Apex Court that : ".................If the defence is accepted as probable the cheque therefore cannot be held to have been issued in discharge of the debt as for example, if a cheque is issued for security or for any other purpose the same would not come within the purview of section 138 of N.I. Act. "
20. In support of my view, I would further refer to the judgment of the Bombay High Court in Rama Krishnan Urban Cooperative Society Ltd. Vs. Sh. Rajender Bhagchand Warma, Criminal application no. 898/2009. The pertinent question which was discussed in this case was when a blank cheque is given as security, whether the provisions of 138 will be applicable or not. The court considered the entire issue and held as under : " It is argued that the cheque drawn must be for the discharge, in whole or in part, of any debt or other liability. So the debt or other liability must CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 17 of 25 18 be in existence when the cheque, whether blank or post dated was issued. In this case the accused respondent issued the cheque in question as security for loan before loan amount was disbursed. So, cheque was not towards any existing debt or liability. In case of loan transaction, borrower is in need of money and therefore he borrows loan amount from some one with understanding that the loan amount would be repaid in lump sum on a future date or in installments from particular future date onwards periodically, with or without interest.
It is not transaction of loan, if the amount is to be repaid the moment it is paid to borrower. So, provisions of Section 138 of the Negotiable Instrument Act are not attracted. "
We may consider object and purpose for introducing amendment to the Negotiable Instrument Act, 1981 by Amendment Act, 1988 as stated in the Amendment Act and various authorities to facilitate correct interpretation of the provisions. The object and reasons clause of the bill which introduced the CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 18 of 25 19 Amending Act of 1988 would show that the new Chapter XVII was incorporated specifically to " enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques due to insufficiency of funds in the accounts or for the reason that it exceeds the arrangements made by the drawer, with adequate safeguards to prevent harassment of honest drawers.
Thus the object of the amendment and introduction of Chapter XVII in the Negotiable Instrument Act by Act of 1988 was mainly to encourage all major transactions including commercial or business transactions through cheques and to enforce credibility and acceptability of cheques in settlement of liability in general. Encouragement of payment by cheques/credit cards/debit cards rather than by cash is necessary for healthy economy. That also brings in transparency in transactions and discourages creation of black or unaccounted money through evasion of taxes or other malpractices. So, provisions like Section 138 of N.I. Act are salutary to give reliability, credibility and acceptability of negotiable instruments like cheques in daily life. However, the object was not to provide effective and speedy remedy for recovery of loans. Law makers must not have intended or imagined that money lenders or banks would obtain blank or post dated cheques while sanctioning/disbursing loans as securities and would use them to make debtors/borrowers to repay loan under threat of prosecution CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 19 of 25 20 and punishment under section 138 of the N.I. Act. So, it is doubtful if provisions of Section 138 of the N.I. Act would be attracted to a case in which a blank or post dated cheque is obtained by a bank or money lender before or while sanctioning or disbursing loan amount as security for the loan. There was no supporting evidence from the side of the complainant as to whether the accounts had been verified. No accounts had been produced by the appellant to prove that liability was subsisting. Only when it is proved that a liability was existing, an offence under Sec. 138 will arise.
21. I would like to refer one more judgment by Hon'ble Delhi Court. In Pine Products Industries V, M/s R.P. Gupta and Sons, 2007 (2) C.C. Cases H.C. 166, it was held that when accused pleaded that his cheque was misused and he is not liable to pay the amount covered in the cheque then keeping in view the fact that complainant had not given any details of loan taken by the accused, on which date and what amount was give to the accused at what rate, therefore, presumption of liability has been rebutted by the accused so he is liable to be acquitted.
22. In the same manner, in the present case the accused has pleaded the misuse of cheque which was given blank signed for the security purpose, CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 20 of 25 21 that too in 2006 and has disputed the loan of 2008. As the accused is devoid of any details of the loan disbursed to him, in 2008. Therefore in my opinion the defence of the accused seems to be probable.
23. Accused has stated during his examination and also at the time of service of notice under section 251 Cr.P.C. that the cheque was issued blank i.e., it bears his signature only and body of the cheque has not been filled by him. It is true that when the cheque in question contained the signature of the account holder, it is for the accused to explain the same, but merely because cheque contained the signature of the account holder or the accused it can not be said that the same was executed by him especially in facts and circumstances of given case. In the present case, it is relevant to note that the case advanced by the accused is that the cheque in question was entrusted with the complainant in 2006 and the cheque contained nothing more than his signature. Going by Section 138 of the N.I. Act, it can be seen that a drawing of cheque by a person on an account maintained by him with the 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 are two important ingredients, especially in the background of this case. In the decision reported in Ch. Birbal Singh Vs. Harphool Khan CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 21 of 25 22 (AIR 1976 Allahabad 23), it was held that execution of documents consists of signing of the document written out, read over and understood and does not consist of merely signing of a blank paper. In another decision reported in Thakurlal Vs. Ramadhar (1986 ALJ 480), it had been held that mere admission of putting of signature and thumb mark on a blank sheet of paper is not admission of execution of the document. In the present case, accused did not dispute the signature on cheques, but his specific case is that he had entrusted with the complainant a blank cheque which contained his signature, in 2006. Considering the aforesaid facts, I opine that there are suspicious circumstances surrounding the loan transaction of 2008 and issuance of cheque in the same year. The stand of the accused that cheque was given blank for security seems to be believable.
24. Also, in the case of "Gopal Vs. Tonney Varghese" 2008 (1) Civil Courts Cases. 642 (Kerla) it has been held that mere proof of signature on cheque is not proof of its execution. In the absence, of any positive evidence regarding the execution of the cheque by the accused, it is to be held that the accused had issued only blank cheque and the same was not executed by him. Simply because the cheque contained the signature of the accused, it cannot be said CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 22 of 25 23 that the cheque was drawn by the accused as contemplated by Section 138 N.I. Act.
25. From the statutory language used in section 138 N.I. Act, the intention of the legislature can be inferred. The every word has been used with a specific meaning and intention. While interpreting the language of the statute the court is suppose to give effect to the intention of the legislature. In any way , it cannot be said that putting signature on the blank cheque is equivalent to the word 'drawn' used in section 138 of the NI Act. Therefore, the word 'drawn' used in Section 138 has to be understood as 'execution of cheque'. A person is said to have "drawn" a cheque, if he has made, prepared or created a cheque. A Cheque is an instrument which is created in conformity with the requirement of section 6 read with section 5 of the N.I. Act. A reading of Section 5 and 6 shows that a cheque consists of mainly, two parts. One is, an unconditional order in witting directing the banker to pay a certain sum of money only, or to the order of a certain person or to the bearer of the cheque. The second part is the signature of the drawer.
26. When the execution of the cheque is denied by the accused, it is for the complainant to establish the same. In the absence of any positive evidence CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 23 of 25 24 regarding the execution of the cheque by the accused, it is to be held that the accused had issued only blank cheque and the same was not executed by him. Simply because the cheque contained the signature of the accused, it cannot be said that the cheque was drawn by the accused as contemplated by Section 138 of the NI Act.
27. In view of the above discussion , I hold that the complaint has not come to the court with the clean hands. The complaint failed to prove the existence of the alleged settlement and loan transaction in pursuance of which the cheque in question was issued. Accused has proved non existence of any loan transaction, raising probable defence. He has discharged initial onus by proving that existence of liability as improbable, doubtful and illegal thereby shifting the onus to complainant. He has brought on record some material evincing that cheque in question might have issued in 2006 as blank signed for security purpose and not towards the discharge of any debt or liability in the manner as has been alleged by the complainant and therefore, it will not fall within the province of section 138 NI Act.
28. In view of the above discussion, It is held that complaint has failed to establish that cheque in question was drawn by the accused towards CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 24 of 25 25 discharge of any legal liability . No material is placed on on record which could prove that accused was liable to pay the cheque amount on the date of its issuance. Therefore, accused Anjan Dutt stands acquitted from the offence under section 138 N.I. Act. Bail bonds stands discharged. (Announced in the open court on 05.02.2013) This Judgment contains 25 pages and each paper is signed by me.
(BABRU BHAN) METROPOLITAN MAGISTRATE DWARKA COURTS /NEW DELHI CC No. 397/12; M/s Mata Vaishno Finsec (P) Ltd. vs. Anjan Dutt 25 of 25