Delhi District Court
3.Title Pradeep Kumar Jain vs . Deepak Verma @ on 9 September, 2022
THE COURT OF SHRI RUPINDER SINGH DHIMAN
METROPOLITAN MAGISTRATE-01, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
1. CC No. 841/15, PS Bhajanpura
2.Unique Case no. 48944/2015
3.Title Pradeep Kumar Jain Vs. Deepak Verma @
Mahesh Kumar
3(A).Name of complainant Pradeep Kumar Jain, S/o Late Shri B.S. Jain, R/
o J-281/7, Gali no. 8, Main Road, 3-1/2 Pushta,
Kartar Nagar, Delhi - 110053.
3(B).Name of accused Deepak Verma @ Mahesh Kumar, s/o Shri
Dharmender Kumar, R/o : K-493, Gali No. 5,
Khasra No. 369, Swaroop Nagar, Delhi
4.Date of institution of case 01.04.2015
5.Date of Reserving judgment 03.09.2022
6.Date of pronouncement 09.09.2022
7.Date of commission of offence After 15th day of service of legal demand
notice.
8.Offence complained of U/s 138 NI Act
9.Offence charged with U/s 138 NI Act
10.Plea of the accused Pleaded not guilty
11.Final order Convicted
12. Date of receiving of judicial 26.11.2015
file in this court
JUDGMENT
1. Briefly stated, the case of the complainant is that he and accused were good friends of each other. Accused was running a jewellery shop in the name and style of M/s Durga Jewellers at J-281/7, Gali No. 8, Main Road, 3-1/2 Pushta, Kartar Nagar, Delhi-110053. The complainant is a doctor and is running his clinic adjacent to the shop of accused i.e. J-281/7, Gali no. 8, Main road, CIS No.: 48944/2015 Pradeep Kumar Jain Vs. Deepak Verma Page No. 1/16 3-1/2 Pushta, Kartar Nagar, Delhi - 110053. In June, 2013, the complainant visited the shop of the accused and gave an order for making some gold ornaments. The complainant also gave an advance money of Rs. 2,70,000/- to the accused for the same purpose. The accused assured the complainant to complete the said order by July, 2013. In the first week of August, 2013, the complainant visited the accused and asked for the said order, but the accused sought some more time. In September, 2013, the complainant again met the accused and asked him for the said gold ornaments but the accused expressed his inability to complete the said order of the complainant. Therefore, the complainant demanded the said amount of Rs. 2,70,000/- from the accused. Then to discharge his liability, the accused issued a cheque bearing no. 183339 of Rs. 2,70,000/- dated 25.10.2013 drawn on State Bank of India, Kashmeri Gate Branch, Delhi to the complainant and assured that the same would be honoured on its presentation. However, on presentation the aforesaid cheque got dishonoured vide cheque returning memo dated 20.11.2013 with the remarks "Funds Insufficient. After dishonouring the said cheque, the complainant contacted the accused but accused asked him to again present the same cheque in the month of December, 2013 with the assurance the same would be honoured on its presentation. The complainant again presented the aforesaid cheque in December, 2013 but the same again remained unpaid vide cheque return memo dated 05.12.2013 with the remarks "Funds Insufficient". Again when complainant approached the accused, then accused advised him to again present the aforesaid cheque and assured that the same would be honoured on its presentation. However, this time also the cheque was dishonoured vide memo dated 17.12.2013 with remarks "Funds insufficient". Thereafter, when complainant contacted the accused and demanded his money, the accused flatly refused to pay his money. Left with no other option, the complainant sent a legal notice dated 16.01.2014 through speed post as well as by regd. post with AD and the same CIS No.: 48944/2015 Pradeep Kumar Jain Vs. Deepak Verma Page No. 2/16 was duly served upon the accused, but the accused neither replied to the notice nor paid the cheque amount. Hence, the present complaint.
2. On the basis of pre-summoning evidence, accused was summoned for the offence u/s 138 Negotiable Instrument Act by the court. Vide order dated 22.07.2016, a notice U/s 251 Cr.P.C. for the offence punishable under Section 138 N.I. Act was framed against the accused with respect to which he pleaded not guilty and claimed trial.
3. The Complainant Pradeep Kumar Jain in order to prove his case examined himself as CW1. CW-1 tendered in evidence his affidavit Ex. CW1/A and relied upon the following documents: -
I. Ex. CW1/1 is the original dishonored cheque bearing no. 183339 dated 25.10.2013.
II. Ex. CW1/2 (colly) are the cheque return memos of Union Bank of India dated 20.11.2013, 05.12.2013 and 17.12.2013 respectively. III. Ex. CW1/3 is the legal notice dated 13.01.2014 sent by the complainant to the accused.
IV. Ex. CW1/4 (colly) are the postal receipts.
4. Complainant was cross examined by Shri V.D. Mishra, Counsel for accused, wherein he deposed that he has friendly and family relationships with the accused though he does not know the name of wife of the accused. He had given the order to the accused for preparing the ornaments such as gold chain, mangal sutra, kade, rings, bangles and tikka for the purpose of marriage of his son. He, however, admitted that he had not mentioned the details of the gold ornaments in his complaint. He stated that the marriage of his son was solemnized in the year 2016 and he had given the order of gold ornaments to the accused in the year 2013. He conceded that he does not remember the date, month and time of the said order of gold ornaments. He stated that he had given Rs. 2,70,000/- in cash to the accused. He stated that CIS No.: 48944/2015 Pradeep Kumar Jain Vs. Deepak Verma Page No. 3/16 he is an income tax payee but denied the suggestion that he had not shown any such transaction in his ITRs as no such transactions had taken place and due to said reason, he has not filed his ITR on court record. He denied the suggestion that he had taken the cheque in question from the accused forcibly. He denied the suggestion that the accused had never asked him to present the cheque in question. He deposed that the accused had handed over a duly filled cheque to him, however, he does not know whether it was filled in by the accused or by someone else. He denied the suggestion that the cheque in question was blank when it was taken by him forcibly and that he had filled the particulars later on. He denied the suggestion that accused was a member of committees run by his friend and he used to pay the money through him. He denied the suggestion that accused had failed to pay the amount of the committee to his friend and therefore, he had taken the cheque in question forcibly from him. He further denied the suggestion that he asked the accused to give him a blank cheque and the accused did not give the same, therefore, he had taken the cheque in question forcibly. He denied the suggestion that accused did not have any legal liability to pay any amount to him. He denied the suggestion that the accused did not receive any legal notice. He denied the suggestion that no money was paid by him to the accused and therefore, there is no receipt in his possession. He denied the suggestion that he was deposing falsely.
5. Complainant also summoned record from the post office to prove service of legal notice. However, the said record had already been weeded out and letter of Sub Postmaster in this regard was marked as Ex. A1. No other witness was summoned. Hence, Complainant evidence was closed on 02.05.2017.
6. Statement of accused was recorded on 12.05.2017 U/s 281 Cr.P.C. r/w section 313 Cr.P.C. wherein he stated that he had not taken any money from the complainant, nor any order was placed before him for making of gold ornaments. On the contrary, complainant came to him in the year 2012 and CIS No.: 48944/2015 Pradeep Kumar Jain Vs. Deepak Verma Page No. 4/16 told that his cheque book was finished and he needed a cheque for issuing to some person and he demanded a cheque leaf from him. He was in a hurry on that day and therefore, he gave the cheque in question to him in blank condition. Thereafter, he forgot about the cheque and complainant stated that the said cheque had been damaged in the rain water. Thereafter, he misused the cheque in question.
7. In defence evidence, accused Deepak Verma examined himself as DW-1. He has deposed that he had never taken any loan amount of Rs. 2,70,000/- from the complainant for manufacturing gold ornaments. He had never given the cheque in question bearing no. 183339 dated 25.10.2013 amounting Rs. 2,70,000/- to the complainant but the same was taken by the complainant illegally from him as complainant was frequent visitor in his shop. He never received any legal notice from the complainant. He only used to put committee with the complainant and there are no other relations between him and the complainant. The complainant has filed a false and frivolous case against him. He was cross examined by Shri J. P. Shrivastava, Ld. Counsel for complainant wherein he stated that he knows the complainant for the last more than 9 years. He admitted that complainant is having a shop near his shop. He also admitted that the cheque in question belongs to him and the same bears his signatures. However, he does not know when the cheque was bounced. He conceded that he did not make any complaint in the police station regarding loss of cheque in question. He admitted that he was running the shop of goldsmith that the relevant time. He deposed that he does not remember the exact date when he had issued the cheque in question to the complainant but he had issued the same blank cheque in question in the year 2012 regarding committee. He had put a committee of Rs. 1,00,000/- through the complainant in which the complainant had stood as a surety. He denied the suggestion that he had taken Rs. 2,70,000/- from the complainant for manufacturing of gold ornaments/articles. He denied the suggestion that CIS No.: 48944/2015 Pradeep Kumar Jain Vs. Deepak Verma Page No. 5/16 he was deposing falsely.
8. No other witness was examined and matter was fixed for final arguments.
9. I have heard the rival submissions of the parties and perused the material on record. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first. Now, Section 138 Negotiable Instrument Act provides as under:-
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 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 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-- 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;
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 he 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 CIS No.: 48944/2015 Pradeep Kumar Jain Vs. Deepak Verma Page No. 6/16 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.
10. It is well settled position of law that to constitute an offence under S.138 N.I. Act, the following ingredients are required to be fulfilled: -
a. drawing of the cheque by a person on an account maintained by him with a banker, for payment to another person from out of that account for discharge in whole/part any debt or liability; b. 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, c. returning the cheque unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque, d. giving notice in writing to the drawer of the cheque within 30 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount, e. failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice.
11. Being cumulative, it is only when all the ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the N I Act.
12. Analyzing all the concerned provisions of law and various pronouncements in this regard, the Hon'ble Apex Court in Basalingappa v. Mudibasappa, AIR 2019 SC 1983, noted at para 23 as follows [Bharat Barrel and Drum Manufacturing Company v. Amin Chand Pyarelal, (1999) 3 SCC 35; M.S. CIS No.: 48944/2015 Pradeep Kumar Jain Vs. Deepak Verma Page No. 7/16 Narayana Menon alias Mani v. State of Kerala and another, (2006) 6 SCC 39; Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54; Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513; Rangappa v. Sri Mohan, (2010) 11 SCC 441 referred] :
a. 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.
b. 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.
c. 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.
d. 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.
13. To put in nutshell, the law regarding the presumption for the offence under Section 138 N.I. Act, the presumptions under Sections 118(a) and 139 have to be compulsorily raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted upon the accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. The onus to prove the issuance of the cheque lies upon the complainant, and the same has to be proved beyond reasonable doubt, unless the accused admits the same. Once CIS No.: 48944/2015 Pradeep Kumar Jain Vs. Deepak Verma Page No. 8/16 the issuance of cheque is established, either by admission or by positive evidence, the presumption under Section 139 of the Negotiable Instruments Act, 1881 arises. We can summarize the general principles in the following way :-
14. Onus of proof: Section 139 of the Negotiable Instruments Act, 1881 states that it shall be presumed, unless the contrary is proved that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. Therefore, here the onus shifts upon the accused to prove the nonexistence of debt or other liability. Section 139 of the Negotiable Instruments Act, 1881 uses the word "shall presume", which means that the presumption under Section 139 is rebuttable.
15. Standard of proof: The standard of proof required to rebut the presumption under Section 139 is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or other liability, the onus shifts back to the complainant to prove by way of evidence, beyond reasonable doubt, that the cheque in question was issued by the accused in discharge, whole or in part, of any debt or other liability, and now the presumptions under Section 118 (a) and Section 139 will not come to the aid of the complainant.
16. Mode of Proof: The accused may adduce direct evidence to prove that the note/cheque in question was not supported by consideration, and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should prove the nonexistence of the consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that a bare denial of passing of consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to CIS No.: 48944/2015 Pradeep Kumar Jain Vs. Deepak Verma Page No. 9/16 the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances upon the consideration of which, the Court may either believe that the consideration and debt did not exist, or their nonexistence was so probable that a prudent man would, under circumstances of the case, act upon the plea that they did not exist.
17. As discussed above, from the legal provisions and the law laid down in various judgments, it can be safely gathered that it is for the accused to rebut the presumptions. He can do so by cross examining the complainant, leading defence evidence, thereby demolishing the case of the complainant. It is amply clear that the accused does not need to discharge his or her liability beyond the shadow of reasonable doubt. He just needs to create holes in the case set out by the complainant. Accused can say that the version brought forth by the complainant is inherently unbelievable and therefore the prosecution cannot stand. In this situation the accused has nothing to do except to point inherent inconsistency in the version of the complainant or the accused can give his version of the story and say that based on his version the story of the complainant cannot be believed.
18. Coming to the facts of the present case, the accused in his plea of defence has admitted the execution of the cheque and also the handing over of the cheque to the complainant. Though he has denied receiving any order of the complainant or money from the complainant. But once the execution is admitted, the Act raises two presumptions in favour of the holder of the cheque i.e., firstly, regarding the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption under Section 139, that the holder of cheque, received the same for discharge, in whole or in part, of any debt or other liability. Hence, onus was upon the accused to rebut the said presumptions. Accordingly, I proceed to consider the contentions raised by the accused to rebut the presumptions.
19. First contention raised by the accused was that he had issued blank signed CIS No.: 48944/2015 Pradeep Kumar Jain Vs. Deepak Verma Page No. 10/16 undated cheque to the complainant as the complainant has stood his guarantor in a committee run by the friend of the complainant. It is manifest that by reason of the provision under Section 20 NI Act, a right has been created in the holder of the cheque that when a blank cheque is signed and handed over, it means that person signing it has given an implied authority to any subsequent holder to fill it up. Prima facie, holder thereof is authorised to complete the incomplete inchoate instrument. Thus, merely the allegation of issuance of incomplete negotiable instrument does not create absolute defence in favour of the accused. There is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. Hence, once accused has admitted his signature on cheques, he cannot escape his liability on the ground that same has not filled in by him. A person issuing a blank cheque is supposed to understand the consequences of doing so. Thus, this defence is of no assistance to accused. (Jaspal Singh v. State, Crl. Rev. 160/2016, by Hon'ble High Court of Delhi, & Ravi Chopra v. State 2008 (102) DRJ 147, relied on.)
20. As regards the defence of accused that cheque in question was security cheque is without any merits in view of the decision of Hon'ble Apex Court in ICDS Ltd Vs. Beena Shabeer (2002) (2) SCC 426 and of Hon'ble High Court of Delhi in Credential Leasing & Credits Ltd. Vs. Shruti Investments & Anr 223 (2015) DLT 343, that security cheques fall within the purview of Section 138 NI Act. As per the decision of Credential Leasing & Credits Ltd. vs. Shruti Investments & Anr (supra) it has been held that the scope of Section 138 NI Act would cover cases where ascertained and crystallized debt or other liability exists on the date when the cheque is presented and not only to the cases where ascertained and crystallized debt or other exists on the date on which it was delivered to the seller as a post dated cheque or as a current cheque with a credit period. Hence, it would have to be examined in a case to case basis, whether an ascertained or crystallized debt or other CIS No.: 48944/2015 Pradeep Kumar Jain Vs. Deepak Verma Page No. 11/16 liability exists or not.
21. Another contention raised on behalf of the accused was that he did not receive the legal notice. However, the apex court in C.C. Alvi Haji v. Palpetty Muhammad & Anr. (2007) 6 SCC 555, held that in case, drawer of cheque raises an objection that he never received legal notice, he can within 15 days of the receipt of the summons make payment of cheque amount and in case, he does not do so, he cannot complain that there was no proper service of legal notice under Section 138 NI Act.
22. With respect to the denial of any existing liability qua the impugned cheque, the accused has stated that no amount of Rs. 2,70,000/- was received by him for the purpose of manufacturing gold articles and there existed no liability qua the impugned cheque. However, Hon'ble Supreme Court in Kumar Exports vs. Sharma Carpets (2009) 2 SCC 513 held, that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non- existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. But no material inconsistency in the version of the complainant has been brought by the accused either in his cross examination or his own deposition. Accused admitted in his cross examination that the cheque was handed over by him to the complainant. No complainant was made by him regarding the assertion that the cheque was taken forcibly or that the cheque had been lost. It is pertinent to note accused has blown hot and cold as per convenience. In his statement under section 313 Cr.P.C he stated that the cheque in question was taken by the CIS No.: 48944/2015 Pradeep Kumar Jain Vs. Deepak Verma Page No. 12/16 complainant in the year 2012 as the cheque book of the complainant was filled and complainant needed the cheque for giving to someone else. At other stages, he has stated that the cheque was given to the complainant as accused participated in a committee through the complainant and complainant had stood his guarantor. Thus the version of the accused appears inconsistent and unreliable. It is also not disputed that the accused was running shop of gold smith at the relevant time. Only contention pressed in this respect is that the complainant did not give description of the gold articles in his complaint regarding which order was placed. But that is not sufficient to rebut the presumptions in favour of the complainant.
23. Another contention pressed was that the complainant has stated in complainant and deposition that the order of gold articles was placed for the purpose of marriage of his son but the marriage of the son was admittedly solemnised on 22.02.2016. It has been argued that the order of gold articles could not be placed in June 2013. However, this is not a material inconsistency. Judicial notice is taken of the fact that Indian parents are known to save gold for the marriage of their children, right from the time of their birth. Further, during the cross examination of complainant, questions were put regarding the source of funds and his ITR. However, Rs. 2,70,000/- is not a huge sum especially when the complainant is a practising doctor. Even otherwise, there is no need to go into evidence of complainant and it can't be considered until accused discharges his primary burden under section 139 of NI Act. Also, it must be remembered that once the presumption u/s 139 NI Act is drawn the complainant need not prove his source of funds, etc., till accused discharges his burden as has been held by Apex Court in Rohit Bhai Jeevan Lal Patel Vs. State of Gujarat 2019 SCC online SC 389. Apex court held in para 17 of the Rohit Bhai Jeevan Lal (supra):
"17. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court CIS No.: 48944/2015 Pradeep Kumar Jain Vs. Deepak Verma Page No. 13/16 proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the accused-appellant. The aspect relevant for consideration had been as to whether the accused-appellant has brought on record such facts/material/circumstances which could be of a reasonably probable defence."
24. Recently, the Hon'ble Apex Court in its two judge bench order dated 12.08.2022 in Criminal Appeal No. 1233-1235 of 2022 in P Rasiya Vs. Abdul Nazer and anr while reversing the judgment of Hon'be High Court of acquittal observed as under :
"......By the impugned common judgment and order, the High Court has reversed the concurrent findings recorded by both the courts below and has acquitted the accused on the ground that, in the complaint, the Complainant has not specifically stated the nature of transactions and the source of fund. However, the High Court has failed to note the presumption under Section 139 of the N.I. Act. As per Section 139 of the N.I. Act, 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 discharge, in whole or in part, of any debt or other liability. Therefore, once the initial burden is discharged by the Complainant that the cheque was issued by the accused and the signature and the issuance of the cheque is not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. The presumption under Section 139 of the N.I. Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the Complainant/holder of the cheque, in that case, it is for the accused to prove the contrary......."
25. Thus, the said contention is also of no assistance to the accused. In the CIS No.: 48944/2015 Pradeep Kumar Jain Vs. Deepak Verma Page No. 14/16 aforesaid case, the complainant had not even stated the nature of transactions and source of funds. Still the Hon'ble Apex Court held once the initial burden is discharged by the Complainant that the cheque was issued by the accused and the signature and the issuance of the cheque is not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. However, there is nothing on record to corroborate the version of the accused. The stand taken by the accused is inconsistent. Therefore, the defence of accused seems implausible and accused has palpably failed to substantiate his defence and unable to rebut the presumption under section 139 of NI Act. In view of the provision of section 139 of NI Act r/w Section 118 NI Act thereof, the Court had to presume that cheque has been issued for discharging debt or liability. The said presumption which is rebuttable could be rebutted by accused by proving the contrary. The accused had to prove by cogent evidence that there was no debt or liability. For shifting the burden, accused had to prove his defence by preponderance of probabilities whereas he has failed to do so. He has failed to bring on record something which is probable for getting the burden of proof shifted to the complainant. Without rebutting the presumption, the onus to prove his case will not shift to complainant. The evidence of complainant can't be considered till the accused raises a probable defence in his favour. Although accused can rely on the evidence brought on record by the complainant to rebut the presumption however in the present case, there is nothing in the cross-examination which is in favour of accused.
26. Hence, in view of the aforesaid discussion, the Court finds that accused has not been able to prove any probable defence and has failed to rebut the presumption raised under Section 118/139 of NI Act. Accordingly, the complainant has been able to prove that the cheque in question i.e. cheque bearing 183339 dated 25.10.2013 for Rs. 2,70,000/- was issued in discharge CIS No.: 48944/2015 Pradeep Kumar Jain Vs. Deepak Verma Page No. 15/16 of valid legally recoverable liability owed to the complainant by the accused, with the aid of presumptions of law raised his favour and it was dishonoured on presentation. It has also been proved that legal notice was duly served and that accused did not make the payment despite service of legal notice. Therefore, based upon the entirety of evidence, this court holds the accused guilty and accused is convicted for the offence punishable under section 138 NI Act.
27. Let the parties be heard on the quantum of sentence. Copy of the judgment be free of cost to the convict.
Digitally signed by Rupinder Rupinder Singh Dhiman
Singh Dhiman Date: 2022.09.09 17:19:48
+05'30'
Announced in the (RUPINDER SINGH DHIMAN)
Open Court on 09.09.2022 Metropolitan Magistrate-01
KKD Courts/NE/Delhi
It is certified that this judgment contains sixteen (16) pages, and each page bears my signature. Rupinder Digitally signed by Rupinder Singh Dhiman Singh Dhiman Date: 2022.09.09 17:20:00 +05'30' (RUPINDER SINGH DHIMAN) Metropolitan Magistrate-01 NE/KKD Courts, Delhi 09.09.2022 CIS No.: 48944/2015 Pradeep Kumar Jain Vs. Deepak Verma Page No. 16/16