Delhi District Court
Sh. Bimal Kumar vs M/S Shree Hari Vrinda City Pvt, Ltd on 5 June, 2023
1
IN THE COURT OF DR. SATINDER KUMAR GAUTAM
PRESIDING OFFICER SPECIAL COURT(NI ACT) SOUT WEST,
DWARKA
CC NO. 48931/2018
CNR No. DLSW0249193/2018
SH. BIMAL KUMAR VS M/S SHREE HARI VRINDA CITY PVT, LTD
& ORS
P.S DWARKA NORTH
s.no
1 Name and address of the Sh. Bimal Kumar S/o Late Shri
complainant Hakim Rai R/o Flat No. 125,
plot No. 26, Manbhavan
Apartment, Sector-10, Dwarka,
New Delhi-110075
2 Name and address of accused 1. M/S Shree Hari Vrinda city
Pvt. Ltd. Plot No. 1, 1st & 2nd
floor, 55ft Road, Jai Bharat
Enclave, Metro Pillar No. 786M
Dwarka Mor, New Delhi
-110059
Through its Director
2. Lalit Vats
Director
M/S Shree Hari Vrinda City Pvt.
Ltd. RZ-36, Nawada Housing
Complex, Dwarka Mor, New
Delhi-110059
CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 1/26
2
3 Offence complained of u/s 138 read with section 142 of
NI Act 1881
4 Plea of accused Pleaded not guilty.
5 Date of institution 06.12.2018
6 Final Order Convicted
7 Date of such order 05.06.2023
JUDGMENT
INTRODUCTION
1. The present complaint u/s 138 r/w 142 of NI Act 1881 was filed by complainant Bimal Kumar against M/S Shree Hari Vrinda City Pvt. Ltd. accused no1 and Lalit Vats being director of accused no.1 company for dishonour of two cheques bearing no. 000028 dated 12.09.2018 for Rs.2,50,000/- and cheque no. 000024 dated 20.09.2018 for Rs.5,00,000/-. This judgment shall dispose off the above caption complaint case.
FACTUAL MATRIX OF THE CASE OF COMPLANANT CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 2/26 3
2. The gist of the allegations made by the complainant against both the accused are that accused no.1 is a Private Company deals with business of sale purchase and construction/ developer of flats/ properties where accused no.2 is the director of accused no.1 company and used to issue cheque in favour of the customers on behalf of accused no. 1 company.
3. Accused no.2 approached the complainant for loan of Rs.
40,00,000/- for business purpose and on the assurance of accused no. 2 the complainant invested Rs. 32,46,000/- in installments on different dated from October 2015 to June 2018. Out of Rs.32,46,000/- complainant paid Rs.16,37,000/- through RTGS and remaining amount of Rs.16,09,000/- paid by cash in presence of Sh. Jaiveeer Tomar. The accused returned amount of Rs.5,25,000/- to the complainant. On repeated demand accused no. 2 issued six cheques in total, out of which four cheques from account of accused no.1 company and two cheques from his own personal account to discharge part liability. The accused issued two cheques bearing no. 000028 dated 12.09.2018 for Rs.2,50,000/- and cheque no. 000024 dated 20.09.2018 for Rs.5,00,000/- both drawn on HDFC Bank, Delhi was issued in favour of the complainant in discharged of the part of the liability from account of accused no.1 company. However, on presentaion the said cheque by the complainant same was received back as dishonoured with remarks " payment stopped"
CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 3/26 4 vide returning memos dated 15.10.2018. Therefore, the complainant sent a legal notice dated 24.10.2018 through his counsel by speed post but despite service of notice vide tracking report CW1/G, the accused has not made any payment against the cheque in question within stipulated period. Hence, the present case.
PRE-SUMMONING EVIDENCE
4. On 19.01.2019 complainant ( CW1) examined himself and tendered his Pre-summoning evidence by way of affidavit in evidence vide Ex.Cw1/1 alongwith following documents :
1. Original cheque as Ex. CW1/A & B
2. Returning memo as Ex.CW1/C & D,
3. Legal notice ex. CW1/E
4. Postal receipts as Ex. CW1/F
5. Delivery report as Ex. CW1/G
6. Complaint as Ex. CW1/H and thereafter, closed his pre-summoning evidence.
COGNIZANCE AND SUMMONING ORDER.
CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 4/26 5
5. Thereafter, the court considered pre-summoning evidence and the document relied upon and summoned both the accused to face trial u/s 138 NI Act vide order dated 25.1.2019.
FRAMING OF NOTICE.
6. Accused alongwith her counsel appeared, bailed out and notice u/s 251 cr.p.c was framed on 20.12. 21 to which accused pleaded not guilty and claimed trial. In defence, the accused stated as under:
" The cheque in question bears my signature. I did not fill the date particulars. However, the rest of the particulars were filled in by me in the cheque in question. I did not receive any legal notice. The cheque in question was given to Jaiveer, sone in law of complainant. In 2016, I went to Jaiveer's office. I do not know complainant. Jaiveer had got approximately Rs.16 lacs transferred from complainant's bank account to my bank account. At that time, I gave the cheque in question to Jaiveer. Jaiveer told that when he will get his cheque book issued, he will issue cheque in favour of complainant and his cheque will be returned back to him. Jaiveer further stated that the agreement is between the complainant and me. I do not owe any liability towards the complainant. It is possible CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 5/26 6 that there might be some more cheques in the possession of complainant and Jaiveer has expired. Jaiveer used to get the amount transferred in different bank accounts including KVC builders Chandigarh from my account. Jaiveer alongwith one more accomplice misbehaved with me and threatened me. I have also made complaint with regard to same at PS Sector 17 Dwarka. "
7. Thereafter, Vide order 24.1.2020 application us 145 (2) was allowed and matter was listed for complainant evidence ( herein after referred as CE)
8. Thereafter considering the age of complainant being senior citizen, right to cross examine the complainant was closed as accused failed to cross examine the complainant despite several opportunity granted and statement of accused u/s 294 cr.p.c was also recorded in which he admitted his signatures on the cheque in question and stated that he has no objection if witness no. 2 and 3 who are bank official of both complainant and accused are dropped from the list of witnesses. Thereafter, matter was listed for statement of accused. As such, complainant closed his evidence.
CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 6/26 7
9. On 31.3.2022, statement of accused was recorded wherein he took same plea as taken in reply to notice u/s 251 cr.p.c. He admitted his signature on the cheque in question and other particulars filled therein with his handwriting except date. He also admitted that he had received legal notice but his counsel did not reply to the same. However, in defence, he stated that he met complainant son-in -law Jaiveer in 2016 at Vikas puri and thereafter, friendly relations developed between them as they are in same business of property dealers. Complainant ' son in law Jaiveer approached him to join his office and asked him to approach the complainant for loan as he was not having security cheque. Further he stated that Jaiveer assured him that he would get the amount credited in his account and his cheques given as security cheques to Jaiveer then, amount of Rs. 16 lacs was credited in his account from the account of complainant. Later on, Jaiveer got the same transferred to the account of KSB builder in Chandigarh and Rs.1 lac in his own account i.e jaiveer's account. Accused further stated that he do not owe any liability and opted to lead defence evidence.
10. On 31.3.2022 application u/s 311 cr.p.c of accused was also allowed and matter was listed for cross examination of CW 1.
COMPLAINANT EVIDENCE CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 7/26 8
11. On 27.4.2022 complainant step into the witness box as CW1 and cross examined at length by counsel for accused.
12. During cross examination CW1 stated that he was running a kirana store from 2002-2006 and his wife to support only as his son has already expired and two daughters are already married. He know accused since 2015 as he met him in the office of his son in law. The accused was working as property dealer but he never meet accused for purchase of any property through him. He filed three connected cases for more than Rs. 32 lacs. CW1 further stated that accused did not approached him for any loan. Rather he assured him that if complainant invest his saving through him, he would give him a better return. There is no written agreement between them with regard to any saving agreement. CW1 further stated that he had given Rs. 32 lacs to accused out of which Rs.16 lac were given in cash and there after remaining Rs.16 lacs through RTGS.
13. Further, CW1 deposed that his personal income was around Rs. 2.5 to Rs. 3 lacs besides rent received from one of his property and his wife was also having income of Rs. 2.5 to Rs.3 lacs. In 2015 he was having only one residential property. Thereafter, he had sole one property and sale consideration was deposited in his personal account and wife's FD account. His personal expenditure was nil in 2015 as he was staying at Jaiveer's house after death of his son.
CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 8/26 9
14. CW1 further stated that his source of income for cash was rental income transfer in his account , money transfer from wife's account and one committee in Panipat for which he had not annexed any documentary proof on record as there is no document ever given at the time of committee. He do not file ITR. Further he testified that accused had approached for Rs. 40 lacs and he had given the amount as per the directions of accused. The cheque in question was given as a security cheque before and after handing over of money. He used to communicate directly with accused and not through Jaiveer. CW1 also admitted that he has filed three connected matters us 138 NI Act for Rs.26 lacs from the accused. CW1 further deposed that he has asked Rs.26 lacs and not Rs. 32Lacs because accused had failed to issue any further cheque . Thereafter he did not give the remaining amount of Rs.8 lacs out of Rs.40 lacs asked by the accused and Jaiveer knew about loan advanced to the accused. Further, CW1 denied all the suggestion put to him. The rest of suggestion has been denied. Thereafter, the complainant evidence was closed and matter was listed for defence evidence ( herein referred as DE ).
15. Vide order dated 18.5.2022, application u/s 143A NI Act filed by complainant was allowed and accused was directed to pay interim compensation of Rs.45,000/- to the complainant within two months CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 9/26 10 considering the fact that accused had admitted his signature on the cheque in question apart from that, he also admitted in reply to notice u/s 251 cr.p.c that approximately Rs. 18 to 19 lacs received from the complainant .
16. Vide order dt. 8.7.2022 right to lead defence evidence was closed as the accused failed to lead defence evidence despite sufficient opportunity granted. As such, matter was listed for Final Arguments.
17. Final arguments were heard, perused the material on record and judgment cited.
POINTS OF ARGUMENT OF COMPLAINANT
18. Ld. Counsel for the complainant during arguments reiterated his averments as alleged in his complaint and statement as CW1 by way of affidavit. It is contended that as the accused was having knowledge that the cheques in question are going to be present then, accused intentionally got stopped payment of the cheques. The accused has stated that he has returned Rs.11-12 lacs but no proof in this regard filed by the accused. As per statement of complainant during cross examination that accused had approached for Rs. 40 lacs. It shows that the accused had approached the complainant for loan. As per admission of accused with regard to his signature on the CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 10/26 11 cheque in question and other particulars in his hand writing clearly shows that the cheque was issued towards liability. The accused also could not prove that he had taken loan from complainant not for himself but for Jaiveer . It is admitted by accused in his statement that " I had handedover the cheques in question as security cheques to Jaiveer then I received an amount of approximatel Rs.16 lacs from the account of complainant in my bank account." It is further contended that from the said statement of accused made in u/s 313 cr.p.c, the complainant has proved that accused had taken loan and issued the cheques against liability. The complainant has also filed his statement of account showing withdrawal of cash for giving the same to the accused as per his demand between the period 2015 to 2018. The is further contended that accused has given contradictory statement such as in notice, he stated " the cheque in question is one of the above stated cheques handed over by me to the complainant" In statement u/s 313 cr.p.c , he stated that " I had handed over the cheques in question as security cheques to Jaiveer." From the said statment, it shows that accused had issued the cheque towards liability by filling the same mentioning amount and name of payee. Accused could not prove that he has no liability against complainant. It is prayed that accussed may be convicted.
CONTENION OF ACCUSED CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 11/26 12
19. Per Contra , ld. Counsel for accused argued that the complainant filed the present case against two accused and claims that accused no.1 is a Private Ltd. Company and accused no.2 is one of the director of accused no.1 company. In complaint, the complainant has mentioned in para no.2 and 3 of his complaint that accused no. 2 approached for loan of Rs.40,00,000/- and on assurance of getting profit from the money, the complanant paid Rs. 32,46,000/- in installment. Further, the complainant has clearly stated that all the alleged transactions took place between the complainant accused no. 2 . However, all the alleged cheques in question are of current account of accused no.1 and there is nothing on record that any liability enforceable debt of accused no.1 is in favour of complainant as the complainant has no where mentiioned any kind of legal liability or legally enforceable debt of accused no.1 in favour of complainant. It is further submitted that the cheque in question bearing no. 000201 dt. 5.10.2018 of Rs. 2,25,000/- was not issued in his personal capacity and all the cheques issued by the accused are drawn on HDFC Bank from account of accused no 1 company M/S shree Hari Vrinda city Pvt. Ltd. as such, the complainant has totally failed to draw any inference as to how accused no.1 has given the alleged cheque in discharge of any debt/ liability which is the foremost condition for the complainant to satisfy his cheque bounce case and as per requirement of law, there must be clear, unambiguous and specific allegations against the persons who are impleaded as CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 12/26 13 accused. In support of his contention, ld. Coounsel for accused relied on judgment Dilip Hivetia Vs. Vilas Yeshwant Mitkar, 2007 (2) DCR-6 where Hon'ble Supreme Court held that :
" If the complaint lacks the averment that at the time when offence was committed , the applicant was incharge of, and responsible for the conduct of the business of company then the requirements of Section 141 cannot be said to be satisfied."
It is further contended that as per para no. 2 and 3 of complaint complainant stated that accused no.2 approached the complainant personally for loan of Rs.40,00,000/- and on assurance of getting profit from the money, the complainant paid Rs. 32,46,000/- in instalments on different dates from October 2015 to June 2018 and out of this amount of Rs. 16,37,000/- were paid through RTGS and the amount of Rs.16,09,000/- were paid by cash. However, complainant admitted in para no.4 of his complaint that amount of Rs.5,25,000/- has been returned back to the complainant. It is further contended that complainant in his statement of accused on 27.4.2022, stated that "... I met accussed for the first time in 2015 at my son in law's office...". " ....the accused did not approach for any any loan . Rather he assured me that if I invest my savings through him, he will give me a better return. There is no CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 13/26 14 written agreement between me and accused with regard to any saving agreement" from the above deposition of complainant, it is crystal clear that accused had not approched to complainant for loan rather complainant met the accused by chance in office of his son in law and the complainant himself with his own will invested the money as per his own convience that is why the payment was made in installment as per averments of complainant made in his complaint and complainant had already received Rs. 5,25,000/- either towards profit or against investment with profit.
20. It is further cosntended that as per further statement made by complainant during cross examination on 27.4.2022 where he stated that " the cheque in question was given as a security cheque before and after handing over of money. However the complainant failed to provide the exact date as to when the alleged cheques were given so as to attract the liability of the accused. The complainant failed to satisfy that as to for what purpose the complainant had made payment of Rs. 32 lacs whether towards loan or for investment.
21. Ld. Counsel for accused relied on following judgment :
1. Sampelly Satyanarana Rao Vs. Indian Renewable Energy Development Agency Ltd. (2016) 10SCC-458 , CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 14/26 15
2. Kulvinder singh Vs. Kafeel Ahmed, Crl LP 478 of 2011 , decided on 4.1.2013,
3. Vijay Vs. Laxman , ( 2013) 3 SCC 86 and
4. Indian Micro Electronics (p) Ltd.Vs. C Jamdra Industries and Ors 2015 Law Pack ( Del) 57790 and prayed that the complaint of the complainant may be dismiss.
22. Having considered the rival submissions, the material on record and judgment relied upon.
LEGAL DISCUSSION
23. To bring home a liability under section 138 of NI Act, 1881, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, viz.
1. A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability;
2. The cheque has been presented to the bank within a period of three months from the date mentioned on the cheque or within the period of its validity, whichever is earlier;
3. The cheque is returned by the bank unpaid either because the amount of money standing to the credit of the CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 15/26 16 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 the bank;
4. 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 40 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
5. The drawer of such cheque fails to make the payment to the payee or the holder in due course of the cheque within 15 days of the receipt of the notice.
24. The accused admitted himself in notice U/S 251 CR.P.C that the complainant gave him Rs. 18-19 lac in total in various installment. The cheque in question bears his signarue and he has also filled the name of the payee & amount. In his statement u/s 313 cr.p.c accused stated that he has received an amount of Rs. 16 lacs at the instance of son in law of complainant . The cheque in question bears his signature and given to Jaiveer. Further accused stated that he had filled all the particulars except date and admitted that he had received legal notice but his previous counsel failed to file the reply. It shows from statement of accused itself that he had taken huge amount from the complainant and issued the cheque in favour of complainant as, it was filled with his own handwriting so there is no chance to misuse the cheque in question. In statement u/s 313 cr.p.c accused stated that he had handedover the cheques in question as CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 16/26 17 security cheques to jaiveer then, he received an amount of approximately Rs.16 lacs from account of complainant in his bank account.
25. The defence taken by accused that lateron Jaiveer got the amount taken from complanant transferred to KSB Builder in Chandigarh and Jaiveer also got transferred approximately One lac in his account and he do not owe any liability. In this regard , there is no record filed by the accused to prove that the amount which has been credited in his account from the account of complainant, was got transferred by Jaiveer in the account of KSB builder. The accused did not produce so called builder of KSB into witness box to prove that any amount was transfered from his account in the account of KSB. Even otherwise, it is admitted fact that accused is a property dealer and there is every possibility he might have taken some property from KSB Builder and invest the money in the project of KSB Builder and it is also evident from his statement given as defence in his notice u/s 251 cr.p.cc that he owe an amont of approximately Rs.35 lacs.
26. Apart from that, the contention of counsel of accused that the cheque in question is of current account of accused no. 1 complany and further submitted that as to how accd. no.1 had issued cheque in questiion towards discharge of his liability. On perusal of record, CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 17/26 18 the accused did not deny anywhere that he had not issued the cheque, he admitted that he had issued the cheque duly filled except date. This fact has also been corroborated by complainant himself during his cross examination. The accused has also not disputed anywhere that he was not director of the company and he started doing business of property from the office Jaiveer and at the asking of Jaiveer, he also invested Rs.2 lac in the project of Chandigarh. In order to rebut the contention of ld. Counsel of accused that accused issued cheques in question from current acount of accused no.1 is concerned, as it is the accused no. 2 only who used to issue cheques to the customers in discharge of liability of accused no.1 company being its director during the course of business, hence being director accused no.2 is liable to discharge the liability if any against accused no.1. In the present scenario, the accused had taken money from the complainant to invest in his business, as per case of accused , and profit has to be shared with complainant for the money invested by complanant even then, the accused persons have liability to pay the due towards complainant against the cheques issued by accused no.2
(ii) Security & Sign Cheque
27. The stand of accused that he had given signed security cheque dully filled can be meet out by putting reliance on judgement CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 18/26 19 pronounced in Bir Singh Vs Mukesh , (2019) 4 SCC 197 Section 20 NI Act 1981 says that :
" If a person gives a duly signed cheque which is either blank or partly filled then he is deemed to have given implied authority to the holder to fill up he particulars in it and complete the cheque, thus making the drawer liable for the payment mentioned in it. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted."
28. Reliance can also be placed on judgment pronounced in ICDS Vs Beena Shabir & Anr (2002) 6 SCC-426 where it was held that "Security cheques would also fall within the purview of the Sectin 138 Ni Act and a person cannot escape his liability unless he proves that debt or liability for which cheuqe was issued as security is satisfied otherwise"
29. Reliance can asso be placed on judgment Sampelly Satyanaraya Rao Vs Indian Renewable Energy Development Agency Ltd, 2016 SCC on line SC 954 AIR 2016 SC 4363 : 2016 CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 19/26 20 (9) SCAE 11: 2016 (10) SCC 458 wherein interpretting the word "security" it was observed that "The said expression refers to other cheques being towards repayment of installments. The repayment becomes due under the agreement, the moment the loan is advanced and the installment falls due. Once the loan was disbursed and installments have fallen due on the date of the cheque as per the agreement, dishonour of such cheques would fall under section 138 of the Act."
30. In the present case, accused no.2 had taken amount from the complainant in installment and accused no.2 had issued six cheques towards payments received in his account or in cash. Admission of accused that he had taken amount of Rs. 16 lacs but repaid only 11- 12 lacs shows that he had taken money from the complainant but did not prove repayment made by accused by way of producing any documentary or oral evidence. The defence of repayment of money is vague without producing any cogent evidence as such, liability of accused stand exist.
31. So far as proof of advancing money has been proved by the complainant by filing his statement of account which clearly shows cash withdrawal many times and crediting into account of accused. Money transaction carried out between complainant and accused CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 20/26 21 since 26.10.2015 . It also shows that as per entries of complainant account shows several dates of transaction between the accused and complainant in the year 10.6.2016, 17.6.2016, 12.8.2016, 16.8.2016 , 23.8.2016 on wards. The complainant has also proved his statement of account as per law by exhibiting the same as Ex. CW1/Y and Mark X. Thus the complainant has proved his financial capacity for advancing money in account of both the accused as well as cash given. On the other hand, accused did not file any statement of account of repayment of amount. Not even a single question has been put to the complainant by the accused during cross examination to prove that he has repaid the 11-12 lacs or that he has no liability or that at the instance of his son in law he approached him for investment of money of complainant which was later on withdrawn the amount sent by him in his account. It also prove on record that the accused is having liability to pay the due amount to the complainant.
32. Reliance can also be placed on judgment Hiten P. Dala v Bratindranath Banerjee (2001) 6 SCC 16 wherein it was observded in para no. 22 that :- held as under:
"22. Because both Sections 138 and 139 require that the court 'shall presume' the liability of the drawer of the cheques for the amounts for which the cheques are drawn..., it is obligatory on the court to raise this presumption in every case where the factual basis for the raising of the presumption has been established. It introduces CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 21/26 22 an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused(...). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court may presume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption is obliged to prove the case against the accsued beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable probability of the nonexistence of the presumed fact."
"23. In other words, provided the facts required to form the basis of a presumption of law exists, the discretion is left with the court to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence to exist or consider its existence to be reasobably probable, the standard of reasonability being that of the prudent man."
33. In judgment of Vipul Kumar Gupta Vs. Vipin gupta 2012(V) AD (CRC)189 DHC, the High Court of Delhi at New Delhi wherein it is held that :
"An offence u/s 138 of the Act, it must be proved beyond a reasonable doubt that the cheque in question, which has been made as a basis for prosecuting the respondent/accused, must have been CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 22/26 23 issued by him in the discharge of his liability or a legally recoverable debt."
34. In the present case, the accused himself admitted that he had issued the cheques in question during business transaction and his admission in his statement u/s 313 for issuing of cheque in question, bear his signature alongwith name of the payee/ complainant and amount without date which prove that the cheques were issued towards liability and not as security. Apart from this, admission of accused that he had not asked the complainant to return his cheques in question if he had repaid the amount against those cheques nor the accused has mentioned anywhere that after receiving money in installment he had asked the complainant to return his security cheques even he has not filed any complaint in this regard. Simple he stated that he has registered FIR against jaiveer who cheated him by getting transferred the amount from his account which he had received from the complanant at different occasions. No copy of FIR or no duty officer from concerned PS was summoned to prove that he infact lodged any FIR and he has no liability towards complainant. The contentiion that he has paid amount in cash to the complainant without producing any oral or documentary evidence in form of receipt or other occular evidence on record, as such accused failed to make disprove in the complainant story. Thus, the accused CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 23/26 24 has failed to prove that he had not taken money from complanant nor issued the cheques in question towards enforceable liability.
35. In case titled as Manesh Varghese Vs Sainulabudeen, 2019 SCC Online Ker 2029 : 2019 (3) ILR (Ker) 146 Section 139 of NI Act 1881 held as :-
"A presumption was to be made that every negotiable instrument was made or drawn for consideration and that it was executed for the discharge of debt or liability once the execution of negotiable instrument was either proved or admitted. When the complainant discharged the burden to prove that the cheque was executed by the accused, the rules of presumptions under section 118 and 139 were very much available to the complainant and the burden shifted on the accused."
36. It has brought on record in the form of evidence of the complainant, documents exhibited in evidence, specially admission of accused during accusations explained to him and statement of accused recorded u/s 313 Cr.p.c Accused admitted that he had issued the cheques in question under his signature. Simple denial that the cheques were not issued by him towards liability without any cogent evidence is not reliable. On one hand, accused admitted that he had CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 24/26 25 taken amount from complainant and issued the cheques also he got stopped payment which shows malafidie intention of accused to grab the money of complainant. In order to get rid from liability, he had taken defence that the money was taken back by Jaiveer without leading any cogent evidence or producing any document to this effect plea of defence is not reliable without any oral/ documentary evidence. Thus, the accused could not prove his defence hence failed to rebut the case of complainant beyond preponderance of probabilty of evidence.
37. Reliance can also be placed on judgment Raja Ram Vs. Marutha Chalam through LRs (2023) LL (SC) 46 in Criminal appeal no. 1978 of 2013 wherein it is held that " 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"
38. Further, accused admitted to receive legal notice as stated in u/s 313 cr.p.c and notice u/s 251 cr.p.c. As per deposition of accused in statement who himself admitted that his relation with the complainant from whom he had taken money for business purpose to invest in property and friendly relation with his son in law from his office shows there was mutual trust between them. Legal Notice, CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 25/26 26 cheque in question , etc are not disputed. The judgment relied by ld. Counsel for accused do not help the case of accused.
39. Thus, in view of the aforesaid discussion and judgment cited the complainant has been proved its case u/s 138 of NI Act beyond all reasonable doubt against the accused persons i.e M/S Shree Hari Vrinda city Pvt. Ltd. accused no.1 and Sh. Lalit s/o Sh. Suresh ( accused no. 2). Accordingly, both accused M/S Shree Hari Vrinda city Pvt. Ltd. and Lalit s/o Sh. Suresh namely are convicted for offence u/s 138 NI Act qua the cheque in question.
40. This judgment contains 26 pages in number and every page of this judgment is signed by me with dated.
Announced in the open Court On 5th June , 2023.
( Dr. Satinder Kumar Gautam) PO Special Court (NI Act) S-W Dwarka 05.06.2023 CC NO. 48931/2018 Sh. Bimla Kumar Vs. M/S shre Hari Vrinda City Pvt. Ltd. 26/26