Delhi District Court
Hemlata vs . Vikas Yadav (17.08.2020) on 17 August, 2020
IN THE COURT OF MS. SNIGDHA SARVARIA : MM-01 (SHAHDARA) :
KARKARDOOMA COURTS : DELHI.
Comp. ID No. 2143/17
DATE OF INSTITUTION : 14.09.2015
DATE OF JUDGMENT : 17.08.2020
IN THE MATTER OF:
Smt. Hemlata
W/o Sh. Virendra Kumar
R/o B-3/277, Gali no. 14,
Harsh Vihar, Delhi-110093
.......Complainant
VERSUS
Mr. Vikas Yadav
S/o Sh. Kabool Chand @ Kabool Singh
R/o H. No. 851-E, Lohia Gali no. 4,
Babarpur, Delhi-110032
..........Accused
JUDGMENT:
a) Srl. No. of the case & Date of institution : 2143/17 & 14.09.2015
b) Date of commission of offence : after the 15th day of service of legal demand notice
c) Name of the complainant : Smt. Hemlata
d) Name of the accused : Sh. Vikas Yadav
e) Nature of offence complained of : S. 138 NI Act
f) Plea of the accused person : Accused pleaded not guilty
h) Final Order : Convicted.
i) Date of order : 17.08.2020 COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881 BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:-
Brief facts Page 1 of 16 Comp. ID No. 2143/2017 Hemlata Vs. Vikas Yadav (17.08.2020)
1. The brief facts of the present complaint filed U/s. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act") are that accused and complainant were on good family terms and cordial relations with each other and there were frequently visiting terms to each other's houses between them. In the second week of December, 2014, the accused alongwith his father approached the complainant and asked her for financial aid as accused were in dire need of money and accused stated that they have managed some amount but still a sum of Rs. 4 Lacs is required to fulfill their affairs as they were going to purchase a plot and assured to return the same within 3-4 months. On 29.12.2014, complainant paid a sum of Rs. 1,50,000/-, out of which, Rs. 58,000/- in cash and Rs. 92,000/- through two cheques bearing no.
510103 and 510104 both dated 29.12.2014 of Rs. 46,000/- each. Accused got encashed both the abovesaid cheques of Rs. 46,000/- each in the presence of husband of complainant. After passing 3 months, when complainant asked the accused to return the said loan amount then accused requested the complainant to give one more month and promised to pay the said amount within stipulated period. Again after passing of one month, complainant asked the accused to return the loan amont then accused again showed his helplessness and asked for one or two weeks. On 12.06.2015, after so many requests and reminders by the complainant, accused issued three cheques bearing no. 191782, 191783 and 191786, all dated 13.08.2015 of Rs. 49,000/- each drawn on HDFC Bank, Main Loni Road, Shahdara, Delhi and further paid Rs. 3,000/- in cash to the complainant in discharge of his debts and liabilities with written assurance declaration dated 12.6.2015. On the assurance of the accused, complainant presented the aforesaid cheques with her banker i.e. SBI, Nand Nagri Branch, Delhi for encashment but it were dishonoured and returned back with endorsement 'Funds Insufficient' vide separate return memo Nos. 640, 660 and 620 all dated 18.08.2015 respectively. Upon dishonouring the said cheques, complainant intimated the accused and apprised him about the fate of the said cheques but accused Page 2 of 16 Comp. ID No. 2143/2017 Hemlata Vs. Vikas Yadav (17.08.2020) stated that on arrangement of amount, same shall be returned and stop demanding again and again if the accused want to get back the said amount of Rs. 1,47,000/- and not only this, accused also threatened the complainant with dire consequences in case she again raise the demand of money. Thereafter, the complainant sent a legal demand notice dated 24.08.2014 through Speed Post which was duly served upon the accused on 26.08.2015 as per tracking report. But the accused did not return the said amount despite servise oflegal demand notice and thus this complaint case has been filed. Therefore, the accused has committed an offence, which is an offence under the provisions of Section 138 of NI Act.
Proceedings Before Court
2. In the present complaint summons were issued against the accused. The accused entered appearance and notice of accusation was framed against the accused on 31.10.2018 to which accused pleaded not guilty and claimed trial. Defence of the accused was also recorded on the same date wherein he stated that he borrowed a sum of Rs. 90,000/- with interest @ 8% per month from a doctor, whose name he does not know and who carries on money lending business on interest. The said doctor is known to Mr. Virender Kumar, husband of the complainant, and he borrowed the said amount of Rs. 90,000/- from the doctor through Mr. Virender Kumar. He has repaid a sum of Rs. 1,50,000/- including interest against the said loan of Rs. 90,000/- to said Virender Kumar. Initially, he gave three cheques of his father to Virender Kumar. Those cheques were also signed by his father and amount of Rs. 49000/- was mentioned in figures in all those three cheques and no other particular were filled by him or by his father. Thereafter, Virender Kumar asked him to give his cheques and that he will return cheques of his father but when he gave three cheques, Virender Kumar did not return his father's cheques. Thereafter, he received notices for his father's cheques as well as for his cheques. Admission and denial of documents were also recorded on Page 3 of 16 Comp. ID No. 2143/2017 Hemlata Vs. Vikas Yadav (17.08.2020) 31.10.2018 wherein the accused admitted his signatures on the cheques in question and also admitted receiving of the legal demand notice Ex CW1/8. As regards written assurance/declaration dated 12.06.2015 Ex CW1/4 he stated that it contains his signatures at point A where he signed after portion B was written in his presence.
3. In support of his case, the complainant examined her husband as CW-1 and he tendered his evidence by way of affidavit as Ex. CW1/A and was cross- examined. He proved cheque bearing nos. 191782, 191783 and 191786, all dated 13.08.2015 of Rs. 49,000/- each all drawn on HDFC Bank, Main Loni Road, Shahdara, Delhi as Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 respectively; declaration dated 12.6.2015 as Ex. CW1/4; separate return memos all dated 18.08.2015 as Ex CW1/5 to Ex. CW1/7; Legal notice dated 24.08.2015 as Ex.CW1/8; Postal receipt Ex. CW1/9 and tracking report as Ex. CW1/10 and SPA as Ex CW1/11. Thereafter, complainant closed complainant's evidence on 12.09.2019.
4. Statement of accused under Section 313 Cr.P.C was recorded on 14.10.2019 wherein he stated that he handed over the cheques after taking from his father to Dr. Pramod as he had taken loan of Rs. 1,00,000/- from his and after deducting the interest, he has handed over Rs. 90,000/- to the accused. He had made payment towards principal amount and the interest and had asked Dr. Pramod to return cheques of his father, however, Dr. Pramod took cheques in question from him after stating that if he will hand over his cheques as security then he will return cheques of his father. He had already paid Rs. 1,50,000/- to Dr. Pramod and interest for 3-4 months remained to be paid and Dr. Pramod told him that he will return the cheques once complete payment was received by him. Rs. 24,000/- remains to be paid to Dr. Pramod. He further stated that he does not know the complainant. He does not know why the complainant has filed the present case against him.
Page 4 of 16 Comp. ID No. 2143/2017Hemlata Vs. Vikas Yadav (17.08.2020)
5. The accused has examined himself as DW1 and has also examined DW2 Mr. Kabool Chand and DW4 Jagat Singh. DW1 and DW4 were also cross- examined. but DW2 merely stated that he knows nothing about this case. DW3 Sartaj has not appeared in the witness box and DE was closed by the court vide order dated 12.02.2020.
6. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
Findings
7. The following are the components of the offence punishable under Section 138 of Negotiable Instrument Act:-
(1) 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, (2) presentation of the cheque by the payee or the holder in due course to the bank, (3) 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, (4) 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, (5) 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.
8. As regards the defence raised by the accused that he did not fill the details in the cheque himself and had handed over blank signed cheque to the accused, at this juncture it would be worthwhile to discuss the provisions under S. 20 and S. 118 of the Negotiable Instruments Act, which is as under:
20.Inchoate stamped instruments.-Page 5 of 16 Comp. ID No. 2143/2017
Hemlata Vs. Vikas Yadav (17.08.2020) Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in [India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as then case may be, upon it a negotiable instrument, instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount, provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.
118. Presumptions as to negotiable instruments of consideration Until the contrary is proved, the following presumptions shall be made:-
(a) of consideration-that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) as to date- that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance- that every accepted bill of exchange was accepted within a reasonable time after its date its date and before its maturity;
(d) as to time of transfer.- that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of endorsements - that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamps-that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course; provided that, where the instrument has been contained from its lawful owner, or form any person in lawful custody thereof, by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
9. Further, in Mojj Engineering Systems Limited & Ors. Vs. A.B. Sugars Ltd.; 154 (2008) Delhi Law Times 579, the Hon'ble Delhi High Court had observed as under :-
7. Even otherwise, prima facie, it was the petitioners who had handed over the undated cheque for a certain amount to the respondent in terms of a contract between the parties. Since an undated cheque cannot be encashed, it can only mean that the petitioners had authorized the complainant to enter an appropriate date on it. In Young Vs. Grote (1827) 4 Bing. 253 it was held that when a blank cheque is signed and handed over, it means the person signing it has given an implied authority to any subsequent holder to fill it up. Similarly, in Scholfield Vs. Lord Londesborough (1895-1899) All ER Rep 282 it was held that whoever signs a cheque or accepts a bill in blank, and then puts it into circulation, must necessarily intend that either the person to whom he gives it, or some future holder, shall fill up the blank which he Page 6 of 16 Comp. ID No. 2143/2017 Hemlata Vs. Vikas Yadav (17.08.2020) has left. This common law doctrine was also affirmed by Justice Macnaghten in Griffiths Vs. Dalton [1940] 2 KB 264 where it was held that the drawer of an undated cheque gives a prima facie authority to fill in the date. This aspect has also been incorporated in Section 20 of the Negotiable Instruments Act, which deals with Inchoate Stamped Instruments. The Supreme Court in T.Nagappa Vs. Y.R.Murlidhar, (2008) 5 SCC 633 while discussing the scope of Section 20 held that by reason of this provision, a right has been created in the holder of the cheque. Prima facie, the holder thereof is authorized to complete the incomplete negotiable instrument. In that view of the matter, all further issues that may be raised by the petitioners regarding the nature and scope of the authority of the respondent to put any particular date on the cheque in question, are all matters for trial.
8. It is not as if the cheque came to be issued without any consideration whatsoever in the first place or that there was such a glaring defect in the complaint that the decision of the Trial Court to issue summons has ex facie resulted in miscarriage of justice or an abuse of the process of Court, and therefore interference under Section 482 Cr.P.C. to quash the proceedings is warranted in the interest of justice. The question whether the consideration for which the cheque was issued was ultimately satisfied or whether the cheque was wrongly sought to be encashed, are all issues that must also be decided at the trial. The Supreme Court in the case of M.M.T.C. Ltd. and Another Vs. MEDCHL Chemicals and Pharma (P) Ltd. and Another,(2002) 1 SCC 234 held as follows:
"13.....the well-settled law that the power of quashing criminal proceedings should be exercised very stringently and with circumspection. It is settled law that at this stage the Court is not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. At this stage the Court could not have gone into merits and/or come to a conclusion that there was no existing debt or liability."
The Court further held that:
"17. There is therefore no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they have to discharge in the trial. At this stage, merely on the basis of averments in the petitions filed by them the High Court could not have concluded that there was no existing debt or liability."
10. From the aforesaid discussion, it is manifest that by reason of the provision under S. 20 NI Act, a right has been created in the holder of the cheque. Prima facie, the holder thereof is authorized to complete the incomplete negotiable instrument. Mere averment to the effect that the accused/drawer of the cheque did not fill in the details on the cheque except for signing on the cheque is not sufficient. Thus, merely that allegation of issuance of incomplete negotiable instrument does not create absolute defence in favour of the accused unless Page 7 of 16 Comp. ID No. 2143/2017 Hemlata Vs. Vikas Yadav (17.08.2020) corroborative evidence exists to show that by threat or fraud, a cheque was taken. There is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. Respondent has not denied his signatures on the cheques. Once he has admitted his signatures on the cheques he cannot escape his liability on the ground that the same has not been filled in by him. When a blank cheque is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blank which he has left. A person issuing a blank cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank cheque had been issued by him. Thus, this defence is of no assistance to the accused. .(See also:Jaspal Singh vs State decided on 16.11.2016 by Hon'ble High Court of Delhi in Crl. Rev P. 160/2016; Lillykutty vs Lawrence - 2003 (2) DCR 610 (Ker) (DB) & Ravi Chopra vs State and Anr. - 2008 (2) JCC (NI) 169).
11. The accused stated in admission and denial of documents recorded on 31.10.2018 but in his statement under S. 313 Cr.PC he state that he did not receive the legal demand notice but his address on Ex CW1/8 is correct. is without any merit as the legal notice dt. 24.08.2015 was sent vide post at the address mentioned in the notice under S. 251 CrPC; statement of the accused recorded under S. 313 CrPC; bail bonds furnished by the accused and vakalatnama of counsel for the accused and it has not been explained by the accused that when he resides at the same address where legal demand notice was posted then why he did not receive it. Also, the said objection cannot be taken at this stage in view of the decision in C.C. Alavi Haji v Palapetty Muhammad & Anr. (2007) 6 SCC 555, which states that in case, drawer of the cheque raises an objection that he never received Legal Notice U/s 138 of N.I. Act, he can within 15 days of the receipt of summons make payment of the cheque amount and in case, he does not do so, he cannot complain that there was no proper service of Legal Notice U/s 138 of N.I. Act. Hence, in view of the Judgment in C.C. Alavi Haji, the presumption of service of Legal Notice has Page 8 of 16 Comp. ID No. 2143/2017 Hemlata Vs. Vikas Yadav (17.08.2020) arisen if not of the legal notice Ex CW1/8 sent vide registered post then through issuance of summons by the court. Thus, clearly, accused was served with the legal demand notice Ex CW1/8.
12. Considering that the accused admitted his signatures on the cheque in question and since issuance of cheque in question by the accused is not disputed, hence, presumption U/s.139 of the NI Act is raised.
13. In Rangappa v. Sri Mohan AIR 2010 SC 1898 it was observed by the Hon'ble Supreme Court as under :
"14. In light of these extracts, we are in agreement with the respondent- claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so 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 liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. "
(emphasis added)
14. In view of the decision in Rangappa's case laid down by the Supreme Court, Page 9 of 16 Comp. ID No. 2143/2017 Hemlata Vs. Vikas Yadav (17.08.2020) the presumption raised under Section 139 of the NI Act is of legally enforceable debt or liability and it is for the accused persons to raise a probable defence to rebut the presumption.
15. S. 139 NI Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While S. 138 of the NI Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under S. 139 NI Act is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by S. 138 NI Act can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong those impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant accused cannot be expected to discharge an unduly high standard of proof.
16. The reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under S. 139 NI Act, the standard of proof for doing so 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 liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.
17. As discussed herein above, under S. 139 NI Act strong rebuttable presumptions in favour of the complainant arise but same can be rebutted by the accused by way of credible defence.Page 10 of 16 Comp. ID No. 2143/2017
Hemlata Vs. Vikas Yadav (17.08.2020)
18. As regards the defence of the accused that the cheque in question was a security cheque and thus complaint under S. 138 NI Act is not maintainable is without any merits in view of the decision of the Hon'ble Apex Court in ICDS Ltd vs Beena Shabeer - 2002 (2) SCC 426 and Credential Leasing & Credits Ltd. vs Shruti Investments & Anr. Of Hon'ble High Court of Delhi decided on 29/06/2015 in Crl LP No. 558/2014 and Suresh Chandra Goyal vs Amit Singhal Crl Appeal nos. 601/2015 decided on 14/05/2015 and Credential Leasing & Credits Ltd. vs Shruti Investments & Anr. Of Hon'ble High Court of Delhi the security cheques fall within the purview of S. 138 NI Act .
19. As per decision in Credential Leasing & Credits Ltd. vs Shruti Investments & Anr. Of Hon'ble High Court of Delhi decided on 29/06/2015 in Crl LP No. 558/2014 it has been held that the scope of S. 138 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 liability 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.
20. The defence raised by the accused is that he borrowed a sum of Rs. 90,000/- with interest @ 8% per month from a doctor, whose name he does not know and who carries on money lending business on interest. The said doctor is known to Mr. Virender Kumar, husband of the complainant, and he borrowed the said amount of Rs. 90,000/- from the doctor through Mr. Virender Kumar. He has repaid a sum of Rs. 1,50,000/- including interest against the said loan of Rs. 90,000/- to said Virender Kumar. Initially, he gave three cheques of his father to Virender Kumar. Those cheques were also signed by his father and amount of Rs. 49000/- was mentioned in figures in all those three cheques and no other particular were filled by him or by his father. Thereafter, Virender Kumar asked him to give his cheques and that he will return cheques of his father but when he gave three cheques, Virender Kumar did not return his father's cheques. Thereafter, he received notices for his father's cheques as well as for his cheques.Page 11 of 16 Comp. ID No. 2143/2017
Hemlata Vs. Vikas Yadav (17.08.2020) He handed over the cheques after taking from his father to Dr. Pramod as he had taken loan of Rs. 1,00,000/- from his and after deducting the interest, he has handed over Rs. 90,000/- to the accused. He had made payment towards principal amount and the interest and had asked Dr. Pramod to return cheques of his father, however, Dr. Pramod took cheques in question from him after stating that if he will hand over his cheques as security then he will return cheques of his father. He had already paid Rs. 1,50,000/- to Dr. Pramod and interest for 3-4 months remained to be paid and Dr. Pramod told him that he will return the cheques once complete payment was received by him. Rs. 24,000/- remains to be paid to Dr. Pramod. He further stated that he does not know the complainant. He does not know why the complainant has filed the present case against him.
21. The 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.
22. As regards the defence of the accused that a false case has been foisted against him and that he denied to any liability to make payment to the complainant and denied taking of loan of Rs. 1,50,000/- from the complainant, the accused has not brought forth any document i.e. his bank account statement to show that he did not have financial crunch on 29/12/2014 and did not even put a question to the complainant witness that accused was not purchasing any property in the year 2014-2015 for which he would have required loan. Thus, this defence of the accused is without any merits.
Page 12 of 16 Comp. ID No. 2143/2017Hemlata Vs. Vikas Yadav (17.08.2020)
23. The defence of the accused that he did not take any loan from the comolaiannt but took loan from Dr Pramod through CW1 Virender, is without any merits as in the deposition of the accused as DW1 he deposed that loan payment has been made to Dr Pramod and only interest of 3-4 months remained payable to him and that the Dr Pramod again took 3 cheques in question of the accused on the pretext that he will return the cheques of the father of the accused, which Dr Pramod has said to have misplaced. Furthermore, why would accused hand over his 3 cheques to the Dr Pramod or any creditor when Dr Pramod or any creditor had already misplaced 3 cheques of the father of the accused has not been explained. Such conduct of accused is contrary to what an ordinary prudent person would have done as an ordinary prudent person would have issued stop payment instructions to his banker and would not have handed over fresh cheques to be harassed at the hands of the creditor. Thus, the defence of the accused is not believable.
24. The defence of the accused that he does not know the complainant and he does not know why the complainant has filed the present case against him is without any merits as is contrary to the defence raised by the accused in his statement under S. 313 CrPC wherein the accused stated that he took loan from Dr Pramod through the husband of the complainant.
25. The defence of the accused that he has returned loan amount with interest except for interest of 3-4 months and that his cheques were not returned despite payment of the entire principal amount and most of the interest and complainant has misused cheques of the accused, is not believable as when the complainant or creditor or Dr Pramod did not return the 3 security cheques to the accused then like any ordinary prudent man accused should have taken steps for return of his cheques. Accused is not a naïve person and is well aware of the consequences of issuing blank signed cheques. Also, this defence is without any merits as if repeated requests were being made to the complainant by the the accused for return of cheques in question then like any ordinary prudent man the accused would have issued stop payment instructions to his banker or Page 13 of 16 Comp. ID No. 2143/2017 Hemlata Vs. Vikas Yadav (17.08.2020) would have made complaint to the police against the complainant/creditor in this regard or would have issued demand notice through his counsel to the complainant/creditor. Since, the accused did not act like a prudent man, therefore, it raises an adverse inference with respect to the case set up by the accused.
26. The defence of the accused that accused has already filed several cases against various other persons and is in a habit of misusing cheques of innocent persons is of no assistance to the accused as merely because complainant filed complaints under S. 138 NI Act against other persons will not affect this case and are different transactions.
27. The accused has relied upon Section 3 of the Punjab Registration of Money Lender's Act, 1938 to state that the present complaint is barred as the complainant has no licence to lend money. The said defence is also not maintainable as only a suit for recovery and application for execution of decree are barred under S. 3 of the Punjab Registration of Money Lender's Act, 1938 if the lender does not has a licence for lending. The said provision under S. 3 of the Punjab Registration of Money Lender's Act, 1938 does not bar the complaint under S. 138 NI Act.
28. The defence of the accused that his he has already made complete payment towards loan and interest to Dr Pramod except for interest of 3-4 months and had requested to waive off the interest for 3-4 months and for returning the cheques in question, but complainant did not return the cheques in question and filed the present case is without any merits as no documentary proof like bank account statement etc have been brought on record to show that loan amount has been repaid to the complainant.
29. The testimony of DW4 Jagat Singh does not inspire any confidence and his testimony is not believable as the complainant has already filed a case against Page 14 of 16 Comp. ID No. 2143/2017 Hemlata Vs. Vikas Yadav (17.08.2020) DW4 and thus DW4 has a motive to depose against the complainant.
30. The burden to prove his defence is upon the accused which as discussed hereinabove he has failed to prove. According to S. 103 of Indian Evidence Act burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. S. 103 of Indian Evidence Act provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of S. 103 of Indian Evidence Act amplifies the general rule of S. 101 of Indian Evidence Act that the burden of proof lies on the person who asserts the affirmative of the facts in issue.
31. From the foregoing discussions, the accused has not led any such cogent evidence to rebut presumptions under S. 118/139 NI Act. In view of the aforesaid discussions, the court finds that the accused has not been unable to prove any probable defence and has failed to rebut the presumption raised U/s 118/139 of the NI Act.
32. The defence of the accused that complainant has not proved consideration in lieu of cheques in question is without any merits as only after the accused has rebutted the presumption under S. 139 NI Act the burden shifts on the complainant to prove the source of money out of which loan was granted to the accused.
33. In this regard in Rohitbhai Jivanlal Patel vs State of Gujarat decided by hon'ble Apex Court in Crl Appeal no. 508/2019 decided on 15.03.2019, it has been held as under:
In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court 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 Page 15 of 16 Comp. ID No. 2143/2017 Hemlata Vs. Vikas Yadav (17.08.2020) 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.
34. Since the accused has failed to rebut the presumption raised U/s. 118/139 of the NI Act, there is no need to go into complainant's evidence for proving the complainant's case. There is nothing coming out in the cross examination of complainant's witness which would probablise the defence raised by the accused or falsify the case of the complainant. Therefore, the complainant has been able to prove his case beyond reasonable doubt.
35. The complainant has been able to prove that the cheque in question i.e. cheque bearing nos. 191782, 191783 and 191786, all dated 13.08.2015 of Rs. 49,000/- each all drawn on HDFC Bank, Main Loni Road, Shahdara, Delhi as Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3, respectively, were issued in discharge of legally recoverable liability owed to the complainant by the accused.
36. Therefore, the accused Vikas Yadav is convicted for the offence punishable U/s. 138 of the Negotiable Instruments Act in respect of cheques Ex CW1/1; Ex CW1/2 and Ex CW1/3.
(Announced in open Court on 17.08.2020) (SNIGDHA SARVARIA) MM-01/Shahdara/KKD.
17.08.2020 Page 16 of 16 Comp. ID No. 2143/2017 Hemlata Vs. Vikas Yadav (17.08.2020)