6:55:19 +053 vs 7.2018 When He Went To The Office Of ... on 15 May, 2023

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Delhi District Court

6:55:19 +053 vs 7.2018 When He Went To The Office Of ... on 15 May, 2023

IN THE COURT OF MS. AAKANKSHA, METROPOLITAN
MAGISTRATE, (NI ACT)07
SOUTHWEST DISTRICT, DWARKA COURTS, NEW DELHI

Ct. Case No. 29023 of 2018
CNR No. DLSW020326722018

Jai Prakash Singh .........Complainant

Through: B.K. Pandey, Advocate

Versus

Jagdamba Pandey ..........Accused

Through: Dhurjati Verma, Advocate

(1) Name of the complainant Jai Prakash Singh

S/o Sh. Hari Shankar Singh

R/o 63, Gali No. 10, Vipin
Garden Extn., New Delhi59.

(2) Name of the accused Jagdamba Pandey

S/o Sh. Uday Raj Pandey

R/o H.No. J236, Gali No. 10,
Gupta Colony, Sangam Vihar,
New Delhi62.

Also at

Village Titowa Choraha
P.O. Khalilabad AAKANKSHA
District Sant Kabir Nagar,
U.P. Digitally signed
by AAKANKSHA
Date: 2023.05.15
16:54:30 +0530
Ct. Case No. 29023/2018 Page 1 of 29
(3) Offence complained of or Section 138 Negotiable
proved Instruments Act, 1881

(4) Plea of accused Pleaded not guilty

(5) Date of institution of case 30.08.2018

(6) Date of conclusion of 06.05.2023
arguments

(7) Date of Final Order 15.05.2023

(8) Final Order ACQUITTAL

JUDGMENT

1. The complainant Jai Prakash Singh has instituted this complaint u/s 138 Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') against accused Jagdamba Pandey, on 30.08.2018.

2. The factual matrix as can be culled out from the complaint is that owing to friendly relationship between the parties accused borrowed friendly loan of Rs. 11,09,000/ in total from the complainant on various occasions with assurance to return the same within 6 months, further the accused made a written request dated 01.07.2018 with assurance to return the amount till 15.07.2018 and also issued cheque in question bearing no. 033575 dated 16.07.2018 drawn on ICICI Bank, Jhandewalan Extn., for an amount of Rs. 11,09,000/ in discharge of the said liability, when the accused failed to return the amount till 15.07.2018, complainant approached the accused many times and lastly upon concurrence of accused the AAKANKSHA Digitally signed Ct. Case No. 29023/2018 Page 2 of 29 by AAKANKSHA Date: 2023.05.15 16:54:38 +0530 cheque was presented by the complainant. However, to the complainant's dismay the said cheque was returned unpaid with remarks "Drawer's Signature Differ" vide return memo dated 02.08.2018. The complainant then issued a legal notice dated 07.08.2018 calling upon the accused to pay the cheque amount within 15 days from the receipt thereof, the same was duly served upon the accused but the accused failed to make the payment thus constraining the complainant to file this complaint u/s 138 Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') seeking redress against the dishonor of the cheque in question.

3. With a view to establish a prima facie case in order to enable the court to summon the accused, complainant led pre summoning evidence by way of affidavit Ex. CW1/A. The complainant relied upon following documentary evidence:

(a) Written request dated 01.07.2018, which is Ex. CW1/1.

(b) Original cheque bearing no. 033575 dated 16.07.2018 for a sum of Rs. 11,09,000/ drawn on ICICI Bank, which is Ex. CW1/2.

(c) Original cheque return memo dated 02.08.2018, which is Ex.

CW1/3.

(d) Office copy of legal notice dated 07.08.2018, which is Ex. CW 1/4.

(e) Postal receipt, which is Ex. CW1/5.

(f) Tracking report, which is Ex. CW1/6 (colly.).

Complainant closed his presummoning evidence on 31.08.2018.

AAKANKSHA Digitally signed by AAKANKSHA Date: 2023.05.15 16:54:45 +0530 Ct. Case No. 29023/2018 Page 3 of 29

4. On the basis of above material and finding a prima facie case made out against the accused, the accused was summoned vide order dated 31.08.2018. Accused entered his first appearance on 08.03.2019.

5. Notice u/s 251 Cr.P.C. was framed against accused on 28.03.2019 stating out to him the substance of accusation, to which he pleaded not guilty and claimed trial. His defence was recorded at the stage of framing of notice in compliance of directions passed by Hon'ble High Court of Delhi in Rajesh Aggarwal v. State 171 (2010) DLT 51. The accused took defence that he did not issue the said cheque but his signatures were taken forcibly on the said cheque, he did not receive legal notice, he was kidnapped by complainant, Sunil Singh and Anil Singh in May or June, 2018 and his signatures were taken on cheque in question forcibly and he informed the same to the police.

6. Accused was granted right to crossexamine the complainant on an application preferred u/s 145(2) NI Act vide order dated 13.08.2019. The complainant was examined as CW1 thereby adopting his presummoning evidence as postsummoning evidence and was crossexamined and discharged. Complainant also examined Yogendra Singh as CW2 and Sudhir Kumar Jha as CW3 who were also duly crossexamined and discharged. Vide separate statement of complainant, complainant evidence was closed on 18.08.2022.

AAKANKSHA Digitally signed by AAKANKSHA Date: 2023.05.15 16:54:51 +0530 Ct. Case No. 29023/2018 Page 4 of 29

7. Statement of accused was recorded u/s 313 Cr.P.C. r/w section 281 Cr.P.C. on 26.09.2022 wherein all the incriminating evidence was put to the accused and he was granted an opportunity to explain the circumstances appearing against him at trial. While explaining the circumstances appearing in evidence against him, accused stated without oath that he had business relations with complainant, after working for 2 months together he suffered losses, when he told the complainant about loss, complainant snatched away his register, forcibly made him sign on 7 blank cheques and 3 blank papers, he lodged a complaint on 08.07.2018 before PS Mehrauli and application was submitted in PS on 10.07.2018, complainant also abducted him and his brother made a call at 100 number, he did not receive any legal notice. Accused preferred to lead evidence in his defence.

8. At the stage of defence evidence, accused examined himself as DW1 and Purushottam Pandey as DW2. Accused relied upon complaint made at PS Mehrauli (Mark DW1/A) and record of PCR call obtained from RTI (Ex. DW1/B). Both the witnesses were duly crossexamined and discharged. Vide separate statement of accused, defence evidence stood closed vide order dated 29.04.2023.

9. At the stage of final arguments, Ld. counsel for complainant submitted that complainant gave friendly loan of Rs. 11,09,000/ to accused and accused issued cheque in question and also executed a receipt Ex. CW1/1 dated 01.07.2018, but the cheque was returned dishonoured with remarks that the signature of the drawer Digitally signed by differs, accused has admitted having friendly relations with AAKANKSHA AAKANKSHA Date:

2023.05.15 16:54:57 +0530 Ct. Case No. 29023/2018 Page 5 of 29 complainant and also admitted receiving Rs. 1,90,000/ in his account but stated it to be for business, accused deposed that he worked in partnership with complainant but during crossexamination he deposed that he is proprietor, he took defence that company suffered loss and they decided to share the loss in half but there is no proof on record, half month statement of the firm does not prove any loss, accused also raised defence that he was kidnapped but somewhere he stated that 7 cheques were stolen and somewhere he stated that 5 cheques were stolen, he also stated that some blank papers were forcefully signed but the PCR call mentions that there was no case of kidnapping and that caller was in regular touch with complainant and accused and admitted financial transactions, there are contradictions whether police complaint was made from Dwarka or Mehrauli, in application u/s 145(2) NI Act accused took plea that 6 signed cheques were stolen but in defence evidence he stated it to be 7 cheques, but in complaint only 5 cheques are mentioned, further 3 blank papers are mentioned in application u/s 145(2) NI Act but 5 blank papers are stated to have been forcefully signed in evidence, accused has admitted his signature on receipt, accused took defence that he gave stop payment instructions but the reason for dishonour has been difference in signature, story of abduction is totally false and prayed to convict the accused.

Per contra, Ld. counsel for accused submitted that there was a partnership between complainant and accused, there is no law prohibiting proprietorship concern from doing business, partnership can be between two companies also, complainant admitted himself to be a labour contractor and earning Rs. 56 lac annually i.e. Rs. 45,000 AAKANKSHA 50,000/ per month, how can he give Rs. 12 lacs to accused, such Digitally signed by AAKANKSHA Ct. Case No. 29023/2018 Page 6 of 29 Date: 2023.05.15 16:55:02 +0530 amount is not a small amount for the profession of complainant, complainant deposed that be got some amount transferred from account of his brother and some cash was given to accused, a dispute is created by accused as no ITR has been filed and thus onus shifts upon complainant, he has not clarified the other source from where he borrowed money to give to accused, no agreement or document was executed before lending loan, receipt Ex. CW1/1 states that accused promised to return money in three months i.e. till October 2018 and that it is a security cheque but later it states that accused promised to return the money till 15.07.2018, signature are there on stamp and it is fabricated, generally stamp is put on the name in the running handwriting, the blank paper on which forcibly signatures of accused were taken has been forged to create a receipt, there are two witnesses of said receipt but CW2 deposed that draft was prepared by another person who was with accused but in examination in chief he said that only complainant and accused were there in the office of complainant when he reached, it also contradicts the examination of CW3 who stated that apart from complainant and accused a third person was also there, nothing has come on record that on what basis such a huge amount was given to accused, police complaint was made by accused against complainant and it hardly matters whether 3 or 5 blank papers were stated to have been signed and prayed to acquit the accused. Ld counsel for the accused relied upon the case of Janardhan Bhatt v. Pattatraya G. Hegde passed by Delhi District Court on 08.01.2013 and Smt. Shantha S N v. Mr. Ananda passed by Bangalore District court on 30.04.2022. AAKANKSHA Digitally signed by AAKANKSHA Date: 2023.05.15 16:55:08 +0530 Ct. Case No. 29023/2018 Page 7 of 29

10. After hearing the arguments advanced on behalf of both the parties and perusing the record carefully, the appreciation of evidence and findings of the court are as below.

11. It would be apposite to first consider the legal position serving as base to the offence underlying Section 138 NI Act. The following legal requirements need to be satisfied in order to constitute an offence u/s 138 NI Act, as held by Hon'ble Supreme Court in the case titled as Kusum Ingots & Alloys Ltd. v. M/s Pennar Peterson Securities Ltd.: (2000) 2 SCC 745:

(i) that a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;

(ii) that 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;

(iii) that the cheque is returned by the bank unpaid either because of the amount of money standing to the credit of the 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;

(iv) that 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 thirty days of the AAKANKSHA Digitally signed by AAKANKSHA Date: 2023.05.15 Ct. Case No. 29023/2018 Page 8 of 29 16:55:13 +0530 receipt of information by him from the bank regarding the return of the cheque as unpaid;

(v) that the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice;

The above legal requirements are cumulative, meaning thereby that only if all the aforementioned ingredients are satisfied can the person who had drawn the cheque be held liable for offence u/s 138 NI Act.

12. Burden of proof: The claim based under the provisions of Negotiable Instruments Act is an exception to the general rule of law that burden of proof lies on the prosecution. The two specific provisions viz. Section 118 (a) and 139 of NI Act contemplates that a presumption is attached in regard to each and every negotiable instrument that the same was drawn and issued against due discharge of the liability and thus, whenever any claim is made on the basis of a negotiable instrument, the presumption has to be drawn in favour of the holder of the cheque (drawee) and the law has put the burden to rebut the presumption on the accused that the cheque was not issued by him against discharge of a debt or a liability. In case, the accused is not able to rebut the presumption and fails to prove his defence, the presumption becomes absolute and it has to be assumed that the cheque was issued by the accused in discharge of debt or liability and consequently, accused is assumed guilty of the offence. It was held by Hon'ble Supreme Court in the case of Rangappa v. Mohan: 2010 (11) SCC 441 that presumption of Section 139 of N.I. Act also AAKANKSHA includes the existence of legally enforceable debt:

Digitally signed by AAKANKSHA

Ct. Case No. 29023/2018 Page 9 of 29 Date: 2023.05.15 16:55:19 +0530

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.

Hon'ble Supreme Court, in the case of Hiten P. Dalal v. Bratindranath Banerjee: 2001 (6) SCC 16 held that the presumption mentioned in the section 139 NI Act is a presumption of law and not a presumption of fact and thus, this presumption has to be drawn in favour of the drawee and the burden to rebut the presumption with the probable defence is on the accused.

This is indeed an instance of the rule of 'reverse onus', where it is incumbent on the accused to lead what can be called 'negative evidence' i.e. to lead evidence to show nonexistence of liability. Keeping in view that this is a departure from the cardinal rule of 'presumption of innocence' in favour of the accused and that negative evidence is not easy to be led by its very nature, it is now settled that the accused can displace this presumption on a scale of preponderance of probabilities and the lack of consideration or a legally enforceable debt need not be proved to the hilt or beyond all reasonable doubts. The accused can either prove that the liability did not exist or make the nonexistence of liability so probable that a reasonable person, ought under the circumstances of the case, act on the supposition that it does not exist. He can do so either by leading own evidence in his defence or even by punching holes in the case of the complainant in the testing ordeal of crossexamination. This can be deciphered from relevant para no.21 of Hiten P. Dalal (supra):

21. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the Court but to AAKANKSHA 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 Digitally signed by AAKANKSHA considering the matters before it, the Court either believes it to exist, Date: 2023.05.15 16:55:25 +0530 Ct. Case No. 29023/2018 Page 10 of 29 or considers its existence so probable that a 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 that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'.

Further, in Bharat Barrel v. Drum Manufacturing: AIR 1999 SC 1008 Hon'ble Supreme Court held that the accused has to rebut the presumption and mere denial of passing of consideration is no defence.

It is, thus, clear that in cases of Section 138 NI Act, upon proof of foundational facts, law presumes in favour of drawee that the cheque was issued by the accused in discharge, wholly or in part, of legally enforceable debt or liability and the burden to rebut the same is upon the accused. The burden does not have to be conclusively established but the accused has to prove his defence on preponderance of probability.

13. Now applying the above law to the facts of the present case, it has to be adjudged whether the legal requirements laid down hereinabove have been fulfilled in the instant case.

13.1. The first legal requirement is:

"A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability." AAKANKSHA Digitally signed by AAKANKSHA Date: 2023.05.15 16:55:31 +0530 Ct. Case No. 29023/2018 Page 11 of 29 At the outset, it has to be proved that the accused had issued the cheque in question on his account maintained with a bank for discharge of any debt or other liability. In the instant case, even though the admitted signature of accused in the bank record might have differed from the one on the cheque in issue resulting in dishonour of cheque for reason "Drawers signature differ", the fact is that accused has admitted his signatures on the cheque in question although forcefully, in his statement recorded u/s 313 Cr.P.C. and in notice framed u/s 251 Cr.P.C. The cheque in question has also been drawn on the account maintained by him with ICICI Bank. The said fact has not been denied by accused at any stage of proceeding.

It was held in the case of Kalamani Tex & anr. v. P. Balasubramanian: 2021 SCC Online SC 75 Hon'ble Supreme Court held that:

"14. Adverting to the case in hand, we find on a plain reading of its judgment that the trial court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NI Act. The statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him."

The above said principle has also been crystallized by Hon'ble Supreme Court in the case of Basalingappa v. Mudibasappa: (2019) 5 SCC 418, by observing that:

"25. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarize the principles enumerated by this Court in following manner:

(i) 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. Digitally signed by

(ii) The presumption under Section 139 is a rebuttable AAKANKSHA AAKANKSHA Date:

presumption and the onus is on the accused to raise the 2023.05.15 16:55:37 +0530 Ct. Case No. 29023/2018 Page 12 of 29 probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.

(iii) 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.

(iv) 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.

(v) It is not necessary for the accused to come in the witness box to support his defence."

13.2. In the instant case, the accused having admitted his signatures on the cheque in question, the fact of issuance of cheque to complainant and the said cheque being drawn on his bank account, a mandatory presumption automatically arises in favour of complainant by virtue of Section 118(a) r/w 139 NI Act that the cheque in question was issued by him in discharge of, whole or part of, legally enforceable debt or liability.

13.3. Now the burden shifts upon accused to rebut the above presumption by raising a probable defence, by leading evidence or bringing such facts on record in the crossexamination of the complainant that could make the latter's case improbable. If, in such a case, the accused is proved to have discharged the initial onus of proof placed on him by showing that the existence of consideration was improbable or doubtful or illegal, then the onus will again shift back to the complainant who will then be under an obligation to prove it as Digitally a matter of fact and failure to do so will disentitle him to any relief on signed by AAKANKSHA AAKANKSHA Date:

2023.05.15 16:55:43 +0530 Ct. Case No. 29023/2018 Page 13 of 29 the basis of the negotiable instrument (as held in Satish Sharma v. State NCT of Delhi & anr.: (2013) 204 DLT 289).

13.4. The accused has chosen to do so by crossexamining complainant witnesses and leading defence evidence. It is the defence of accused that he worked in a partnership with complainant and also received Rs.1,90,000/ from complainant but due to losses complainant started threatening him to recover his amount, that complainant got few cheques forcefully signed by him for which he filed a complaint at police station and complainant also abducted him and got few papers forcefully signed and that the receipt Ex. CW1/1 is forged.

13.5. To prove his defence, accused crossexamined complainant witnesses. During crossexamination CW1/complainant deposed, in brief, that he is a labour contractor and does business in the name of proprietorship firm JP Enterprises, his annual income is Rs.56 lacs, he knows accused since past 1012 years, accused took loan for his business, he gave cash to accused and also got some amount transferred to the account of accused from his brother's account, he did not mention loan in ITR as it was borrowed from some other source, no agreement was executed before lending loan, he is not aware about any police complaint.

13.6. Complainant examined witnesses of receipt Ex. CW1/1 as CW2 and CW3. CW2/ Yogendra Singh deposed that on Digitally 01.07.2018 when he went to the office of complainant with Sudhir Jha signed by AAKANKSHA AAKANKSHA Date:

2023.05.15 16:55:49 +0530 Ct. Case No. 29023/2018 Page 14 of 29 on 01.07.2018 accused and complainant were present there talking about their transactions and an agreement was executed for payment of Rs. 11,09,000/ through cheque which was issued by accused in favour of complainant, he admitted his signature on receipt Ex. CW 1/1. During crossexamination the witness deposed that complainant is his neighbour whom he knows since 2007, he does not know the time of meeting but it was in evening, the draft agreement was prepared by someone else who was present with accused, he does not know anything about PCR call.

13.7. CW3/ Sudhir Kumar Jha deposed that be went to the office of complainant on 01.07.2018 at around 05:00 pm with CW2 and found complainant, accused and one more person sitting, they prepared a statement which was signed by accused, complainant, him and CW2 and cheque of Rs. 11,09,000/ was handed over to complainant by accused. During cross examination, witness deposed that he knows complainant since past 10 years as complainant's house is situated six street after his house, complainant was known to him, statement Ex. CW1/1 was drafted by other person who was present there but he doesn't know his name and there was discussion about money transaction.

13.8. Accused also examined himself in defence as DW1 and deposed that on 01.01.2018 complainant told him that his firm was black listed and offered accused to work with him, complainant also gave him a cheque of Rs. 1,90,000/ in name of JD Construction and they started partnership in name of JD Construction, but it suffered loss and complainant demanded his money back, complainant AAKANKSHA Digitally signed Ct. Case No. 29023/2018 Page 15 of 29 by AAKANKSHA Date: 2023.05.15 16:55:54 +0530 forcefully made him sign 7 blank cheques and also took away his bag containing registers, he filed a complaint at PS Mehrauli (Mark DW1/A), then complainant abducted him on 21.07.2018 from Dwarka Sector25 and forcefully made him sign 5 blank papers, his brother made a call at 100 number (Ex. DW1/B), police came at the house of complainant and rescued him and took them to police station. In cross examination he deposed that he has no agreement of complainant investing Rs. 1,90,000/, he knows complainant since 1012 years, he did not take friendly loan from complainant, he is proprietor of JD Construction, he could not place on record document of firm experiencing loss as everything was taken away by complainant, he placed on record a statement of firm, he was made to forcefully sign on receipt Ex. CW1/1 as few papers were forcefully signed, he was forcefully made to sign blank cheques and blank papers, blank cheque was signed by him forcefully on 10.07.2018 and blank paper was forcefully signed on 21.07.2023 (which seems to be a typographical error as that date has yet not arrived but the whole file talks about date 21.07.2018), then he deposed that blank cheques were forcefully signed on 08.07.2018 and he filed complaint on 10.07.2018, the cheque was signed on the way from Kaffium site, military hospital near Satbari PS Mehrauli but later he stated that his version in Mark DW1/A is correct, he did not file any complaint when police did not take any action, the police call was made by his brother and he does not know what they wrote, he forgot about other two cheques at the time of recording complaint Mark DW1/A, he did not issue notice to complainant to demand back his cheque but filed a complaint.

AAKANKSHA 13.9. Accused also examined his brother Purushottam Pandey Digitally signed as DW2 who deposed that he was on duty at L&T company Dwarka by AAKANKSHA Date: 2023.05.15 Ct. Case No. 29023/2018 Page 16 of 29 16:56:00 +0530 Sector25 in July 2018 when he received a call from chaiwala who told him that his brother has been taken away by some 45 people in a car and he called at 100 number. During cross examination, he deposed that he received call at 01:30 pm from chaiwala, he called at 100 number at 02:00 pm, he does not know if they had financial transactions but accused and complainant were working in partnership, accused and complainant were not in touch with him after dialling 100 number, he did not inform the police that it is not a matter of kidnapping.

13.10. To prove his case, complainant has relied upon a receipt Ex.CW1/1 purportedly issued by accused. The two witnesses of the said transaction namely Yogendra Singh and Sudhir Kumar Jha have also been examined by complainant to prove the said receipt and hence the presumption lies in favour of complainant. The accused has also admitted his signature on the said receipt however to rebut the said presumption accused has crossexamined the complainant witnesses and also led defence evidence. It must not be forgotten that the burden upon accused to rebut the presumption is that of preponderance of probability and he is not required to discharge the burden on strict proof of being beyond reasonable doubt. Accused was only burdened to create a probable doubt in the story of complainant.

If on one hand, complainant has relied upon a receipt Ex. CW1/1 purportedly issued by accused for the purpose of loan, on the other hand accused has also relied upon the two complaints filed before the police. Now it has to be seen whether with the help of these complaints and crossexamination of complainant witnesses accused has been able to raise a probable defence.

AAKANKSHA Digitally signed by AAKANKSHA Ct. Case No. 29023/2018 Page 17 of 29 Date: 2023.05.15 16:56:05 +0530 13.11. Although accused admits his signatures on the receipt Ex. CW1/1 and the cheque in issue, the pivotal defence raised by accused has been that such signatures were obtained forcefully on blank cheque and blank paper. To prove this, accused filed a copy of complaint made to SHO Mehrauli on 10.07.2018. The same is Mark DW1/A. In the said complaint, accused has taken the same defence as he has taken in this trial, that there was a partnership between him and complainant and they agreed to share the loss and profit in equal but when the business suffered loss complainant started harassing him to return his money with interest and has been threatening to kill him, that on 08.07.2018 when he returning back from Dwarka site to his house complainant and few other people forcefully got him to sign few cheques bearing number 033571, 033572, 033573, 033574 and 033575. Mere fact that in crossexamination accused admitted himself to be proprietor of JD Constructions is not adverse to the defence of accused as there can be a joint venture even between two firms and the question here is not to adjudicate conclusively whether there was a partnership in true legal sense between the parties, but the question is whether the defence of accused that due to loss in their partnership, complainant threatened him to return his invested money with interest and thus forcefully obtained signatures of accused on the cheque in issue, is probable or not. The fact remains that accused has taken defence that due to said partnership complainant gave him a cheque for Rs. 1,90,000/. The said fact of payment made to accused of Rs. 1,90,000/ has not been categorically denied by complainant during the trial, although complainant has denied fact of any partnership. In fact, Ld. counsel for complainant argued during the course of final arguments that accused has also admitted receiving of Rs. 1,90,000/. AAKANKSHA The statement of account of Complainant Ex. CW1/7 also reflects Digitally signed withdrawal of Rs. 1,95,000/ on 10.01.2018 and statement of account by AAKANKSHA Date: 2023.05.15 Ct. Case No. 29023/2018 Page 18 of 29 16:56:11 +0530 of JD Constructions Ex. DW1/C reflects credit of Rs. 1,90,000/ on 10.01.2018 from United Construction Company, although there is nothing on record to prove association of complainant with United Construction Company. No denial of the fact that he gave Rs. 1,90,000/ to accused has been made by complainant. Be that as it may, this trial is not to adjudge the partnership between the two parties, but to adjudge whether the defence raised by accused is a probable one.

13.12. DW1 has also deposed that complainant got few cheques signed by him forcefully on 08.07.2018, for which he made a complaint on the same day to PS Mehrauli and gave written complaint Mark DW1/A on 10.07.2018. The objection made by Ld. counsel for complainant that accused has deposed contrary to the fact whether on the date when cheque was forcefully signed, accused was coming from Kaffium site, Military hospital near Satbari, PS Mehrauli or from Dwarka site is not fatal to the defence of accused as it is a minor inconsistency in view of clear documentary evidence which proves that complaint was made at PS Mehrauli with allegations that he was coming from Dwarka site, and that accused also affirmed the version of the complaint in his crossexamination. The other objection raised by Ld. counsel for complainant that accused has deposed contrary in terms of number of cheques that were signed by him under duress, is also irrelevant in so far as the cheque in issue is categorically complained about by accused in complaint Mark DW1/A. Thus, whether five or seven cheques were got forcefully signed by accused is of little or no relevance to the fate of the present trial. Accused has also deposed that at the time of filing of complaint, he forgot about AAKANKSHA Digitally signed by AAKANKSHA Ct. Case No. 29023/2018 Page 19 of 29 Date:

2023.05.15 16:56:16 +0530

the other two cheques. Since the other two cheques are not the subject matter of present trial, such objection does not sustain.

13.13. Further, accused has also relied upon RTI response qua the PCR call made by his brother with respect to abduction and has deposed that he was made to forcefully sign few blank papers on 21.07.2018. The same is Ex. DW1/B. He also examined his brother Purushottam Pandey as DW2 who was the caller. Ld. counsel for complainant has challenged the said PCR call stating that it does not record any instance of kidnapping, it records that caller was in touch with accused and complainant. However, the said objections also does not sustain in so far as the evidence of DW2 is fortified with documentary evidence i.e. Ex. DW1/B. DW2 deposed that when he was on duty at L&T company Dwarka Sector25 in July 2018 he received a call from chaiwala who told him that his brother has been taken away by some 45 people in a car and he called at 100 number at around 02:00 pm. The PCR call Ex. DW1/B also records the date of call as 21.07.2018 at 02:49 pm, it records the title of complaint as 'kidnapping', it records place of incident as Sector25 Dwarka LNT Project Gate No.1, it records the information received from caller that the "brother of caller has been kidnapped in SUV car and he needs help". All the above fortifies the deposition of DW1 and DW2.

Further, what the Ld. counsel for complainant argued is not the information received from caller but the report received from MPV (Mobile Patrol Van) which gives a ground report to the authorities after reaching the site where intervention is sought. In the said ground report, whatever is written is the observation of police and not the AAKANKSHA report of caller. In the said ground report, the MPV reported that no case of kidnapping was made out, that caller was in touch with Digitally signed by AAKANKSHA Date:

2023.05.15 Ct. Case No. 29023/2018 Page 20 of 29 16:56:21 +0530 complainant and accused after the call at 100 number, that brother of caller (i.e. accused herein) is telling them that complainant took him to his office. Thus, the said report also verifies that accused was taken by complainant to his office forcefully. It is of utmost importance that the accused was not required to prove the case of abduction in strict legal sense in the present trial. All that he was obligated to do was to create a hole in the prosecution story by raising a probable defence that the cheque was not issued by him is discharge of legal liability and that the paper (which is now Ex. CW1/1) was signed under duress. Thus, it does not matter whether the police observation was that of no case of kidnapping, when the information of caller and accused herein has been recorded in Ex. DW1/B that accused was kidnapped by complainant on 21.07.2018. Again, the number of papers got signed by accused under duress are not of much relevance to the present case. CW1 has also evasively denied having knowledge of any such complaint. But his version is against the documentary evidence i.e. Ex. DW1/B and is thus not admissible.

13.14. Ld. counsel for complainant has also submitted that accused has admittedly not undertaken any further proceeding after filing of above two complaints. Even if accused did not further prosecute his complaints, it makes no difference to the defence of the accused in this trial. The accused was not required to prove his defence on the strict proof of being beyond reasonable doubt. He created a probable defence that the receipt Ex. CW1/1 and cheque in question was signed by him under duress at behest of complainant.

The said defence further gets probable in view of the fact that complainant has been unable to even name the person who drafted the AAKANKSHA said receipt. It is admitted fact that the receipt was not drafted by Digitally signed Ct. Case No. 29023/2018 Page 21 of 29 by AAKANKSHA Date: 2023.05.15 16:56:27 +0530 accused and was only signed by accused. The witnesses of the receipt i.e. DW2 and DW3 both have deposed, during crossexamination, that the receipt was drafted by some other person who was accompanying accused. But none of them was able to name any such person or call him in evidence. In fact, the presence of such person was withheld by DW2 in his examinationinchief where he deposed that when he went to the office of complainant with DW3, only complainant and accused were present having talks of financial matter. In addition, it becomes doubtful that when there were persons from both the sides, complainant and accused, why was only the neighbours of complainant made witnesses to the receipt and not the person who drafted the receipt and who was accompanying the accused. The accused has challenged the receipt during evidence of complainant witnesses and both DW2 and DW3 have deposed that they are neighbours of complainant and were known to complainant. In such circumstances, there being no independent witness to the receipt despite there being a person admittedly accompanying the accused, as per the case of prosecution, creates a doubt over the document.

13.15. Further, the language of the receipt is repetitive. The perusal of receipt would create a doubt that it has repeatedly been tried to elongate in order to fill the page to reach the signature of accused. There is no other reason why taking of loan, then taking of specific amount of loan, then the period of returning loan, then another period of returning loan with specific date will be repeatedly mentioned one after the other. Also, the first paragraph of receipt mentions that accused has promised to return the amount within 3 months. Whereas AAKANKSHA in the second paragraph accused promises to return the amount till Digitally signed by AAKANKSHA Ct. Case No. 29023/2018 Page 22 of 29 Date: 2023.05.15 16:56:33 +0530 15.07.2018, which goes contrary to the first paragraph as the receipt is dated 01.07.2018. All this together with the complaint made by brother of accused that accused was abducted by complainant and taken to the office of complainant on 21.07.2018 and the deposition of DW1 that few blank papers were forcefully got signed by him on 21.07.2018 raise a strong suspicion over the genuineness of the receipt Ex. CW1/1.

13.16. The defence of accused also gets more strengthened when accused challenged the lending capacity of complainant. Complainant has deposed lending interest free loan of Rs. 11,09,000/ to accused in many instances. But CW1 deposes himself to be earning only Rs. 56 lacs annually. Further, he deposed that he gave cash to accused and also got some amount transferred to the account of accused from his brother's account, but he failed to either place on record a proof of the same or examine his brother. CW1 also admitted not showing the loan in his ITR as it was borrowed from some other source, but neither did he explained 'the other source' nor did he even aver as to when and how much amount was given to accused so as to complete the alleged transaction of Rs. 11,09,000/. There is no averment in the complaint as to the breakup of the amounts transferred to accused.

13.17. In the case of Vijay v. Laxman 2013(1) RCR (Criminal) 1028 it was held by Hon'ble Supreme Court that although the accused failed to discharge the burden that the cheque was not signed by him, yet there appears to be a glaring loophole in the case of the complainant who failed to establish that the cheque in fact had been issued by the accused AAKANKSHA Digitally signed Ct. Case No. 29023/2018 Page 23 of 29 by AAKANKSHA Date: 2023.05.15 16:56:39 +0530 towards repayment of personal loan since the complaint was lodged by the complainant without even specifying the date on which the loan was advanced nor the complaint indicates the date of its lodgement as the date column indicates 'nil' although as per the complainant's own story, the respondent had assured the complainant that he will return the money within two months for which he had issued a post dated cheque . Also, in the case of Devender Kumar v. Khem Chand 223 (2015) DLT 419 adverse inference was drawn against the complainant despite having an agreement of loan and an affidavit as the loan amount of Rs. 1.5 lacs was doubtful and the said loan was not reflected in ITR. Likewise, in the present case, although there is a receipt of loan, but the genuineness of the said receipt is questionable as observed hereinabove. Plus, the complainant has failed to prove his lending capacity of a huge amount of Rs. 11,09,000/when he admittedly earns only Rs. 56 lacs per annum, no dates have been even remotely specified as to when and how much amount was lent to accused, it is merely mentioned that on various occasions a total of Rs. 11,09,000/ was lent to accused, despite deposing that some amount was also transferred to accused from the account of brother of complainant, complainant failed to prove any such transaction or examine his brother, he failed to disclose any other source from which he arranged the money and did not reflect the loan in his ITR. All this coupled with the defence of accused accompanied with documentary evidence that he was made to forcefully sign blank cheques and blank papers for which he immediately filed complaints before the police authorities, raises glaring loopholes in the story of the complainant that the cheque was in fact issued by accused in discharge of his legal liability.

AAKANKSHA Digitally signed by AAKANKSHA Date: 2023.05.15 Ct. Case No. 29023/2018 Page 24 of 29 16:56:46 +0530 13.18. Thus, accused has been able to successfully rebut the presumption of law and discharge the burden of proof by raising a probable defence that the cheque in question was not issued in discharge of his liability.

The first legal requirement is, thus, proved in favour of accused and against the complainant.

14. The second legal requirement is:

"That 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 cheque in question Ex. CW1/2 is dated 16.07.2018. The cheque returning memo Ex. CW1/3 is dated 02.08.2018 which proves that the cheque in question was presented within the period of its validity. Further, defence has failed to controvert the said fact.

Thus, the second legal requirement is adjudicated in favour of complainant.

15. The third legal requirement is:

"That cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the 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."

Section 146 NI Act presumes the fact of dishonour of cheque upon production of bank's slip or memo having the official mark denoting that the cheque in question has been dishonoured. This is also a rebuttable presumption and upon production of such bank AAKANKSHA memo, the burden shifts upon accused to disprove the same.

Digitally signed by AAKANKSHA

Ct. Case No. 29023/2018 Page 25 of 29 Date:

2023.05.15 16:56:52 +0530

It was held in Laxmi Dyechem v. State of Gujarat: (2012) 13 SCC 375 that:

"15. ... We find ourselves in respectful agreement with the decision in NEPC Micon Ltd. (supra) that the expression "amount of money .......... is insufficient" appearing in Section 138 of the Act [NI ACT] is a genus and dishonour for reasons such "as account closed", "payment stopped", "referred to the drawer" are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the "signatures do not match" or that the "image is not found", which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act."

In the instant case, a presumption has been raised in favour of complainant by virtue of Section 146 NI Act that the cheque in question was dishonored for the reason stated therein viz. drawer signature differ. As held in Laxmi Dyechem (supra) dishonour of cheque with the remarks "drawer signature differ" also fall within the offence u/s 138 NI Act. Even otherwise, accused has admitted his signature on the cheque in issue meaning thereby that the signature on the cheque in issue might have differed from his admitted signature in the bank record but the signature were put on the cheque in issue by accused himself and therefore, the burden now shifts upon the accused to rebut this presumption by establishing some reasonable justification for the same. But the accused has failed to rebut the same.

Thus, the third legal requirement is adjudicated in favour of complainant.

AAKANKSHA

16. The fourth legal requirement is:

Digitally signed by AAKANKSHA Date: 2023.05.15 16:56:58 +0530 Ct. Case No. 29023/2018 Page 26 of 29

"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 thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid."

In the instant case, the cheque in issue was returned dishonoured on 02.08.2018. The complainant sent a legal notice dated 07.08.2018 (Ex.CW1/4) addressed to the accused. Speed post receipt dated 08.08.2018 is Ex. CW1/5. Speed post tracking report is Ex. CW1/6 (colly.) which discloses that the delivery could not be affected. Accused has also denied receiving any legal notice but the address of accused disclosed by him while in evidence matches one of the addresses on which the legal notice was attempted to be delivered but was returned undelivered with no reason. The said address is of Sangam Vihar. Thus, it can be concluded that legal notice was addressed to the correct address of accused and by virtue of presumption u/s 27 General Clauses Act also accused is deemed to have received the legal notice, if the notice has been sent to correct address by post.

16.1. Even otherwise, law expects a person pleading nonreceipt of any demand notice to prove his bona fide by making the payment of the cheque amount within 15 days of receiving court summons. This is crystallized by the verdict of Hon'ble Supreme Court in the case titled as C.C. Alavi Haji v. Palapetty Muhammed & anr.: (2007) 6 SCC 555:

"17. It is also to be borne in mind that the requirement of AAKANKSHA giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a Digitally signed notice before filing a complaint. Any drawer who claims by AAKANKSHA Date: 2023.05.15 16:57:03 +0530 Ct. Case No. 29023/2018 Page 27 of 29 that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and section 114 of the Evidence Act."

16.2. In the case at hand, it is thus proved that the legal notice was sent to accused within thirty days of receipt of information of dishonour of cheque in issue.

The fourth legal requirement is, thus, adjudicated in favour of complainant.

17. The fifth legal requirement is:

"The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice."

In view of observations made in the case of C.C. Alavi Haji (supra), accused is precluded from raising the plea of nonservice of demand notice as he has failed to pay the cheque amount despite issuance of summons. It is an undisputed fact and also a matter of record that the accused has failed to make the payment till date let alone making payment within 15 days of receipt of notice. AAKANKSHA Digitally signed by AAKANKSHA Ct. Case No. 29023/2018 Page 28 of 29 Date: 2023.05.15 16:57:09 +0530 Thus, the fifth legal requirement is adjudicated in favour of complainant.

18. All the legal requirements constituting an offence u/s 138 NI Act being cumulative in nature, the fact that the first legal requirement has not been proved in favour of complainant, the ingredients necessary to bring home the guilt of accused remain incomplete. Accordingly, accused Jagdamba Pandey is acquitted for the alleged offence u/s 138 NI Act.

19. Bonds under Section 437A Cr.P.C. furnished are accepted for a period of six months from today.



                                                   Digitally
                                                   signed by
Announced in the open                              AAKANKSHA
                                         AAKANKSHA Date:
court on 15.05.2023                                2023.05.15
                                                   16:57:16
                                                   +0530


                                         (Aakanksha)
                                  Metropolitan Magistrate(NI Act)07
                                  South West District, Dwarka Courts,
                                          New Delhi




Ct. Case No. 29023/2018                                      Page 29 of 29

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