Delhi District Court
Nitin Sehrawat vs Gaurav Khandelwal on 4 November, 2023
IN THE COURT OF MS. PADMA LANDOL,
METROPOLITAN MAGISTRATE, NI ACT DIGITAL COURT- 03, NEW
DELHI DISTRICT, PATIALA HOUSE COURT, NEW DELHI
NITIN SEHRAWAT Vs GAURAV KHANDELWAL
1. Complaint Case no. : 1105/2021
2. Date of Institution of case : 29.01.2021(As per Layers
Software)
3. Name of the complainant : Nitin Sehrawat
S/o Sumer Singh, R/O RP-1821,
Chauhan Mohalla, Rang Puri,
Malikpur Kohi, House No. 61,
Delhi-110037
4. Name and address of Accused : Gaurav Khandelwal
S/O Sh. Mukesh Khandelwal
R/O H. No. L-26, Lane No. 1,
Mahipalpur Delhi-110037
5. Offence complained of : Section 138 NI Act
6. Plea of accused : Pleaded not guilty
7. Final Order : Convicted
8. Date of judgment : 04.11.2023
-:JUDGMENT :-
1. This judgment shall decide and dispose off Criminal Complaint Case
No.1105/2021; titled as Nitin Sehrawat v. Gaurav Khandelwal; instituted under
Section 138 of the Negotiable Instruments Act, 1881 (hereinafter NI Act) for the
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dishonour of a cheque for a sum of Rs.4,50,000/- (Rupees Four Lakh Fifty Thousand
Only).
2. In a nutshell, it is the case of the complainant that the accused was a school
junior of complainant and they have been maintaining friendly relations with each
other. That on 27.10.2020, the accused approached the complainant for an urgent loan
of Rs. 7,00,000/- on account of ill health of his father and had promised to return it
within 30 days. Complainant expressed his inability to lend the said amount as he had
lost his job in September 2019, however, promised to pay Rs. 4,50,000/-.
Accordingly, complainant paid Rs. 4,50,000/- to the accused on 29.10.2020 in cash in
the presence of Sh Venkat Rao and Pradeep Kumar. On the same date, the accused
signed a promissory note, an affidavit and also furnished a post-dated cheque bearing
no. 294090 payable on 30.11.2020 for Rs.4,50,000/-. That on 02.12.2020, the
complainant deposited the said cheque for encashment but it was dishonoured on
04.12.2020 due to insufficient funds. Immediately the complainant contacted the
accused who assured to honour the cheque second time, however, the cheque again
got dishonoured on 09.12.2020 on account of "Payment Stopped by Drawer".
Thereafter, the complainant sent a legal demand notice to the accused asking him to
pay the cheque amount, however, the accused having failed to make the payment
within the statutory period of 15 days, the present complaint has been filed by the
complainant against the accused.
3. The complainant was directed to submit the original case documents
(complaint, affidavit of pre-summoning evidence, cheque and annexed documents)
with the Court, a condition precedent to the taking of cognizance of the complaint, as
per SOP/Guidelines issued by the SCMSC Hon'ble High Court of Delhi for
functioning of Digital Courts. Pursuant to the said compliance, vide order dated
17.02.2021, after being satisfied that prima facie ingredients of Section 138 NI Act
are made out cognizance was taken and summons were directed to be issued against
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the accused. Accused entered into appearance on 12.03.2021 and was admitted to bail
on the same date. Upon seeing there is no possibility of settlement, notice under
Section 251 Cr.PC was framed and served upon the accused to which he pleaded not
guilty and claimed trial.
4. The accused then moved an application under Sec. 145(2) NI Act and the same
stood allowed. The matter was then listed for recording of evidence through video
conference through Cisco Webex Meet in compliance of the Project Implementation
Guidelines 2020 laid down by Hon'ble High Court of Delhi and Video Conferencing
Rules 2021 issued by Hon'ble High Court of Delhi dated 26.10.2021. Complainant
was examined and cross-examined as CW-1. He tendered his affidavit in post
summoning evidence and relied upon following documents:
i) Original cheque dated 30.11.2020: Ex. CW-1/2.
ii) Original Bank Return memo: Ex. CW-1/3 to Ex. CW-1/4.
iii) Legal Demand Notice dated 19.12.2020: Ex. CW-1/5.
iv) Postal receipts dated 19.12.2020: Ex. CW-1/6.
v) Internet generated tracking report: Mark A.
vi) Original promissory note: Ex. CW-1/8.
vii) Copy of affidavit of accused: Mark B.
Subsequently, CW-2 was examined and cross examined. Thereafter, CE was closed.
5. After the conclusion of complainant evidence, accused was examined under
Section 313 Cr.PC wherein all the incriminating evidence were put to him. Accused
then moved an application u/s. 315 CrPC which was allowed. Thereafter, accused
was examined and cross-examined as DW-1.
Accused then closed his defence evidence.
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6. Final arguments have been heard at length. Complete records including the
written submissions filed by Ld. Counsel for complainant have been perused
carefully.
7. The Court shall now deal with the defence taken by the accused and
contentions of both the parties.
DEFENCE OF ACCUSED:
8. While framing notice u/s. 251 Cr.PC, accused has taken a defence that he did
not receive any loan from Nitin. That he was friends with the complainant and that he
had asked for Rs. 5 Lacs from the complainant as he wanted to start a business with
him. He agreed for 4.5 lacs. That complainant made him sign a cheque, promissory
note and one affidavit and he had promised to advance the loan amount of Rs. 4.5
Lakhs after signing these documents, however, no such loan was advanced by him.
Hence, the business could not be started. That the cheque in dispute is the same blank
cheque which he had signed and given to the complainant. Since he did not take any
money from the complainant, he does not owe any liability towards the complainant.
Accused further stated that when he received message from his bank regarding
presentation of his cheque, he issued stop payment instructions to his bank. In his
statement u/s. 313 Cr.PC, accused has reiterated his defence. In addition, he has
stated that he knows Venkat Rao and Pradeep Kumar, however they were not present
at the time of execution of the above mentioned documents. He further denied
receiving the legal demand notice from the complainant.
9. In the final arguments, complainant has asserted its case for conviction against
the accused essentially on the ground of having proved the cause of action against
him, beyond all reasonable doubt. This is premised on the substantive proof of
presentation of the cheque in dispute admittedly issued by the accused with his
signatures, its return as dishonoured from the payee's bank upon presentation for
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encashment and non-payment by the accused of the legally enforceable debt within
the statutorily prescribed period, despite service of legal demand notice. It is
submitted by the Ld. Counsel for the complainant:
i) That the accused has duly admitted the promissory note and the affidavit which are
already on record. That no person would execute such documents if he did not
receive the loan amount.
ii) That the accused has not been able to rebut the presumption u/s. 139 read with Sec.
118(a) NI Act against him.
ii) That accused did not take any action against the complainant if the loan amount
was not advanced by complainant even after execution of promissory note and
affidavit.
10. Per contra, Ld. Counsel for the accused has prayed for dismissal of the
complaint and acquittal of the accused on several counts:
i) That the complainant has filed a false case against the accused. If the
complainant was good friends with accused, he ought to have enquired about
the nature of disease of the father of accused at the time of advancement of
loan in question.
ii) That the CW-1 has stated in his cross-examination that he did not remember if
the affidavit [Mark B] is the same affidavit which was executed by the accused
at time of handing over of loan in question.
iii) That the questions regarding the previous jobs and salaries of complainant
were put to him during his cross-examination in order to see his financial
capacity to extend the loan in question.
iv) That no ITR has been filed either of complainant's father or of his brother to
show lending of money by them to the complainant.
11. It is now pertinent to examine the factual matrix of the case in the light of the
ingredients of the provision as produced herein:
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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 provision 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
--
(a) 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;
(b) 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
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.--For the purposes of this section, "debt of other liability" means a legally enforceable debt or other liability.
12. The essential ingredients in order to attract Sec. 138 of NI Act, 1881 are:
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i) Existence of legally enforceable debt or liability and issuance of cheque in discharge of said debt or liability;
(ii) Dishonour of cheque in dispute which must have been drawn on an account maintained by the accused;
(iii) Service of legal demand notice seeking payment of cheque amount within 30 days from the date of receipt of return memo;
(iv) Non-payment of cheque amount within fifteen days from the date of service of notice; and
(v) Filing of complaint within one month from the date on which cause of action arises.
13. Now, coming to the facts of the case in hand in the light of above mentioned legal principles. In the instant case, the issuance of the cheque in dispute [Ex. CW- 1/2] by the accused, their presentation in the bank for encashment and subsequent dishonour due to the reason "payment stopped by drawer", is not disputed and is a matter of record, as proved by the return memo [Ex. CW-1/4]. It is also established that the cheque in dispute belongs to the accused and even the signatures on the same admittedly belongs to him. Once these facts are established, a presumption of the cheques having been issued in discharge of a legally existing liability and drawn for good consideration arises by virtue of Section 118 (a) of the Negotiable Instruments Act. Once Section 139 of the NI Act comes into picture, the Court presumes that the cheque was issued in discharge, in whole or in part, of any debt or liability. At this stage, with the help of presumption under Section 139 of the Negotiable Instruments Act, the case of the complainant stands proved.
14. Since the presumption under Section 139 read with Section 118(a) of the NI Act is in favour of the complainant, it is now for the accused to rebut the same either by discrediting the veracity of material relied upon by the complainant or by leading positive evidence to raise a probable defence on the touchstone of preponderance of CC NI ACT 1105/2021 NITIN SEHRAWAT Vs GAURAV KHANDELWAL Page 7 of 17 Digitally signed by PADMA PADMA LANDOL Date:
LANDOL 2023.11.04 16:33:42 +0530 probabilities as provided by the three Judge bench of the Hon'ble Supreme Court in Rangappa Vs Sri Mohan (2010) 11 SCC 441 and also in Rohitbhai Jivanlal Patel v. State of Gujarat & Anr. (2019) 18 SCC 106.
15. It is trite law that for rebuttal of the said presumption under Section 139 read with Section 118(a) of NI Act, accused need not even step into the witness box as he can rebut the same by placing reliance on the material brought on record by the complainant or even by raising presumptions of fact and law on the basis of material available on record. The accused has to make out a fairly plausible defence which is acceptable to the Court. Therefore, the standard of proof required from the accused to prove his defence is "preponderance of probabilities" and not beyond reasonable doubts. However, at the same time, it is also to be remembered that bare denial of the existence of legally enforceable debt or other liability cannot be said to be sufficient to rebut the presumption and something which is probable has to be brought on record to shift the burden back to the complainant.
The statutory presumption u/s. 118(a) NI Act reads as under:
118 Presumptions as to negotiable instruments. --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 The statutory presumption u/s. 139 NI Act reads as under:
39. Presumption in favour of holder. --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.CC NI ACT 1105/2021 NITIN SEHRAWAT Vs GAURAV KHANDELWAL Page 8 of 17 Digitally signed by PADMA
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16. It is now imperative to see if the accused has been able to establish a probable defence and/or if he has successfully uprooted the case of the complainant so much so that it dislodges the presumption raised against him. Keeping these basic principles in mind, this Court shall now proceed to deal with the various defences taken by the accused and examine whether the accused has been able to rebut the presumption arising in favour of the complainant:
I. Loan amount of Rs. 4,50,000/- not advanced by complainant to accused:
i) The first and foremost defence taken by the accused is that there was an oral agreement between him and the complainant whereby complainant had agreed to advance a friendly loan of Rs. 4,50,000/- to him after signing an affidavit, a promissory note and handing over of a post dated cheque of same amount. However, even after executing the above mentioned documents and issuance of a post dated cheque (i.e. the cheque in dispute), complainant never advanced the said loan.
Accused has made an attempt to establish this defence by cross-examining the complainant (CW-1), Sh. Pradeep Kumar (CW-2) and examining himself as DW-1.
ii) During cross-examination of CW-1, complainant has stated that he does not know the exact nature of disease of the father of accused for which accused had requested for the loan in question. However, accused had informed that his father was in a critical condition and therefore, he was in urgent needs of funds for his treatment. Ld. Counsel for accused has contended in his final arguments that if the complainant was a close friend of accused, he ought to have enquired about the details of the disease for which the alleged loan was advanced by him and since complainant was not able to tell such details, no such loan was ever advanced by him to the accused. In the opinion of this court, this argument is devoid of merits since it does not have any legal basis to stand on and is in fact, raising a question on the moral obligation and sensitivity of a person towards his friend. Though it may be expected from a friend to enquire about the nature and details of disease of his friend's father for which the CC NI ACT 1105/2021 NITIN SEHRAWAT Vs GAURAV KHANDELWAL Page 9 of 17 Digitally signed by PADMA PADMA LANDOL LANDOL Date:
2023.11.04 16:33:54 +0530 friend is seeking loan from him, however, this cannot be generalised as a blanket rule as it entirely depends on the nature of friendship shared between two persons. A person may hand over a loan to his friend without going into much details of his requirement and in another situation, a person may give a loan to his friend only after taking complete details and ensuring that the loan would be returned to him in due time. Even otherwise, accused has not been able to show anything whereby it can be assumed that the complainant could have advanced the loan in question only after taking complete details of the disease of the father of accused. In such a scenario, this Court is of the considered opinion that it cannot be concluded that since complainant could not tell the details of disease of the father of accused, no loan was advanced by him to the accused for his father's treatment, specially when the accused has admittedly signed an affidavit and promissory note admitting the receiving of the loan in question. Drawing such a conclusion would be baseless and far-fetched which is neither warranted nor allowed. Hence, this argument of the accused is liable to be rejected.
iii) In the further cross-examination of the complainant (CW-1), nothing as such is coming out which is lending assistance to the defence of the accused in any way.
Complainant has only been asked about his previous jobs and salaries drawn. He has further been asked about the employment of his father and brother from whom he stated to have borrowed the money for giving loan to the accused. Complainant has further narrated the entire episode of advancement of loan in question to accused outside Tis Hazari Courts in the presence of Sh. Pradeep Kumar and Sh. Venkat Rao. It is to be noted that accused side has not raised any dispute to these facts and Ld. Counsel for accused seemed to be satisfied by the response of complainant. Further, not even a single suggestion to the contrary has been put by the Ld. Counsel for accused at any point of time.
iv) CW-2 (Pradeep Kumar) who is admittedly known to both complainant and accused has supported the case of the complainant by narrating the same incident of advancement of loan of Rs. 4,50,000/- by complainant to accused in a white I20 car CC NI ACT 1105/2021 NITIN SEHRAWAT Vs GAURAV KHANDELWAL Page 10 of 17 Digitally signed by PADMA PADMA LANDOL LANDOL Date:
2023.11.04 16:34:01 +0530 outside Tis Hazari Courts in his presence and that of late Sh. Venkat Rao. He has also deposed that the accused had signed an affidavit and a promissory note in his presence and also issued a cheque for Rs. 4,50,000/-. He has further deposed that he had also signed the document inside the car. In the entire cross-examination of CW-2, nothing is coming out which raises even a speck of doubt on the veracity of his testimony or shakes his credibility. There is not a single reason given by the accused as to why the deposition of CW-2 should not be believed or is unworthy of any trust. The only contrary suggestion given by the Ld. Counsel for accused is that no such transaction ever happened outside the Tis Hazari Courts, however, this is merely a bald suggestion not backed by any reason or evidence whatsoever.
v) Accused has examined himself as DW-1. In his examination-in-chief, accused has denied taking any loan from the complainant and has also denied going to Tis Hazari Courts with the complainant and both the witnesses. However, he has admitted his signatures on the promissory note [Ex. CW-1/8], affidavit [Mark B] and issuance of the cheque in dispute with his signatures. It is to be noted that the accused has denied going to Tis Hazari Courts, however, he has not stated the actual place where the promissory note and the affidavit were signed and the cheque in dispute was handed over by him, if not outside Tis Hazari Courts. Further in his cross-examination, accused has deposed that he requested the complainant for a loan of Rs. 5,00,000/- as he wanted to start a business of taxi with him and not for any treatment of his father, however, he has not taken any positive steps to prove the same and the same is only a bald averment. He could have examine Sh. Tarun and Sh. Deepak, whom he had also contacted for the said loan, however to no avail.
vi) There is no gainsaying that there may not be sufficient negative evidence to discharge the burden u/s. 139 and Sec. 118 of NI Act, yet mere denial does not fulfil the requirements of rebuttal envisaged under the said provisions. When the burden of rebuttal is on the accused, he ought to have taken some steps to dislodge the presumption raised against him. In fact, accused herein has admitted the execution of promissory note [Ex. CW-1/8] and affidavit [Mark B] both dated 29.10.2020. Both CC NI ACT 1105/2021 NITIN SEHRAWAT Vs GAURAV KHANDELWAL Page 11 of 17 Digitally signed by PADMA PADMA LANDOL LANDOL Date:
2023.11.04 16:34:07 +0530 these documents state that the accused has taken Rs. 4,50,000/- from the complainant in cash on 29.10.2020 for his personal requirements in the presence of two witnesses namely Pradeep Kumar and Venkat Rao and that he has issued a cheque bearing no. 294090 for the same amount (cheque in dispute) payable on 30.11.2020. A man may lie but documents do not is a cardinal legal principle for evaluation of evidence. Accused has not led any evidence to show that even after executing the affidavit [Mark B] and promissory note [Ex. CW-1/8], the complainant never advanced the said loan. In the present case when the contents of the admitted documents i.e. promissory note and affidavit [Ex. CW-1/8 and Mark B] are specific and bereft of any ambiguity, there is no reason why this Court should believe the oral averments of the accused and discard the documentary proof.
II. Complainant has misused the cheque in dispute, promissory note and affidavit signed by accused:
i) The next defence taken by the accused is that he had given the cheque in dispute with only his signature and complainant has filled the amount on it. This argument of the accused that the complainant has filled the amount on the cheque and has misused is devoid of merits firstly, as already observed above, the affidavit [Mark B] mentions that accused has handed over a cheque bearing no. 294090 (cheque in dispute) for Rs.
4,50,000/- i.e. the amount of cheque is very well mentioned in the affidavit. Even otherwise, it is trite law that once a signed cheque is handed over to a person, the authority to fill up the remaining particulars and use the cheque also stands transferred to the holder. In this context, the observations of Hon'ble High Court of Delhi in Ramesh Goyal v. State & Anr. 2017 SCC OnLine Del 8887 is relevant wherein it was held that-
'there is no law that a person drawing the cheque must necessarily fill it up on his own hand writing and once the signatures on the cheque are admitted, the liability arising therefrom cannot be evaded on the specious CC NI ACT 1105/2021 NITIN SEHRAWAT Vs GAURAV KHANDELWAL Page 12 of 17 Digitally signed by PADMA PADMA LANDOL Date:
LANDOL 2023.11.04 16:34:14 +0530 plea that the contents were not filled up by the drawer of the cheque', bears relevance.
The Hon'ble Supreme Court in Bir Singh v. Mukesh Kumar (2019) 4 SCC 197 has also held that-
"34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence."
Furthermore, Section 20 of the NI Act, 1881 also gives holder of a negotiable instrument authority to fill the same. Same reads as under:
Section 20: Inchoate stamped instruments:
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 the case may be, upon it a negotiable 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 any thing in excess of the amount intended by him to be paid thereunder.
Hence, this defence of the accused is also liable to be dismissed.
ii) The accused has also taken a defence that his affidavit and promissory note have been misused by the complainant. During his cross-examination, accused has deposed that he had asked the complainant to return the affidavit and promissory note after the dishonour of the cheque in dispute, however complainant failed to return the same. It is to be noted that accused has not led any evidence to show that he had asked the complainant to return the said documents. 'Vigilantibus Et Non Dormientibus Jura Subveniunt' is a fundamental principle of law that law assists the CC NI ACT 1105/2021 NITIN SEHRAWAT Vs GAURAV KHANDELWAL Page 13 of 17 Digitally signed by PADMA PADMA LANDOL Date:
LANDOL 2023.11.04 16:34:19 +0530 vigilant and not who sleep over their rights. Accused has admittedly not filed any police complaint or taken any other action against the complainant for misusing his promissory note [Ex. CW-1/8], affidavit [Mark B] and the cheque in dispute. In such a scenario, this defence of the accused also holds no water and is liable to be rejected.
III. Further attempts to pick holes in the case of complainant:
(i) It is contended by the Ld. Counsel for accused that the accused never received the legal demand notice from complainant. Even though the accused has denied receiving the notice, he has admitted the address at which legal demand notice [Ex. CW-1/5] was sent to be correct. Moreover, the tracking report [Mark A] shows 'Item delivery confirmed' on 21.12.2020. Furthermore, the bail bonds and various affidavits filed by accused along with his applications at various stages also bear the same address on which the legal demand notice was sent. Hence, the legal demand notice is deemed to be delivered upon accused in terms of Section 27 of General Clauses Act, 1897 read with Section 114 of Indian Evidence Act, 1872. Reliance in this regard is also placed on the judgment in C.C Alavi Haji v. Palapetty Muhammed [(2007) 6 SCC 555].
(ii) In his final arguments, Ld. Counsel for accused has contended that the complainant failed to show his financial capacity to advance the loan in question. It is to be noted that the accused raised a question on financial capacity for the first time during the final arguments and not even a single suggestion to the contrary has been given at any prior stage. During cross-examination, complainant deposed that he had borrowed money from his father and brother for giving loan to the accused. It appears that accused was satisfied with the answer given by complainant, hence, not a single question or a contrary suggestion followed thereafter. Moreover, accused has failed to send any reply to the demand notice of complainant raising such an objection. In the opinion of this Court, the argument that complainant did not have financial capacity holds no merit when the accused himself did not raise the question on financial capacity of complainant at any stage during trial. It is trite law that complainant is CC NI ACT 1105/2021 NITIN SEHRAWAT Vs GAURAV KHANDELWAL Page 14 of 17 Digitally signed by PADMA PADMA LANDOL LANDOL Date:
2023.11.04 16:34:25 +0530 bound to answer about his financial capacity only when a question to that effect is raised by the accused. Otherwise, complainant is under no obligation to show his financial capacity in cases of friendly loans. Reliance is placed on the judgment of Hon'ble Supreme Court of India in Tedhi Singh v. Narayan Dass Mahant (2022) 6 SCC 735.
iii) Ld. Counsel for accused has also contended in his final arguments that the CW-1 has stated in his cross-examination that he did not remember if the affidavit [Mark B] is the same affidavit which was executed by the accused at time of handing over of loan in question. This argument holds no water since as already seen, the execution of the affidavit [Mark B] is duly admitted by the accused at all the stages of the trial.
iv) Ld. Counsel for accused has further contended in his final arguments that no ITR has been filed either of complainant's father or of his brother to show lending of money by them to the complainant. This argument is yet again devoid of merits because when the complainant was asked about the loan in question, he deposed that he had arranged the same from his father and brother. If the Ld. Counsel for accused was not satisfied with the answer of complainant, he ought to have called for the ITR of his father and brother or at least given any contrary suggestion to that effect, but the omission on his part cannot be counted against the complainant. Even otherwise, Hon'ble High Court of Delhi in Lekh Raj Sharma v. Yash Pal Gupta (2015 SCC OnLine Del 10074) has held that a complaint u/s. 138 NI Act is maintainable even when the transaction is not shown in income tax return.
17. On the aspects of preponderance of probabilities, as already discussed above, the accused has to bring on record such facts and such circumstances which may lead the court to conclude either that the consideration did not exist or that its non- existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. The Hon'ble Supreme CC NI ACT 1105/2021 NITIN SEHRAWAT Vs GAURAV KHANDELWAL Page 15 of 17 Digitally signed by PADMA PADMA LANDOL Date:
LANDOL 2023.11.04 16:34:31 +0530 Court in Rohitbhai Jivanlal Patel (supra) and in various other rulings have time and again, emphasized that though there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfil the requirements of rebuttal as envisaged under section 118 and 139 of the NI Act. In the case at hand, keeping all the aspects in view, the defence put forth by the accused and rebuttal of presumption raised against him is only a mere denial when tested on the touchstone of preponderance of probability. Accused has merely denied receiving of the loan in question and no steps, whatsoever have been taken to raise a plausible defence.
18. Further, it has been held in Rajesh Agarwal v. State 2010 SCC OnLine Del 2511 that:
"9. .....There is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent. If an accused has a defence against dishonour of the cheque in question, it is he alone who knows the defence and responsibility of spelling out this defence to the court and then proving this defences is on the accused....."
19. In the light of the foregoing discussions, this court is of the firm opinion that the accused has not led any cogent evidence to rebut presumptions under Sec. 118 and 139 of NI Act. There is nothing coming out either in the cross examination of CW-1 or CW-2 or in Defence evidence which would probabilize the defence raised by the accused or falsify the case of the complainant, in fact as already discussed the defence of the accused is a mere denial of the liability in question and is not in the nature of compelling rebuttable evidence. In the above view, the complainant has proved that the accused had issued the cheque in dispute in his favour for discharge of the legally enforceable liability. This Court has no hesitation in holding that in the facts and circumstances of the present case, the complainant has brought home his case proving the complicity of the accused in the offence under Sec. 138 Negotiable CC NI ACT 1105/2021 NITIN SEHRAWAT Vs GAURAV KHANDELWAL Page 16 of 17 Digitally signed by PADMA PADMA LANDOL LANDOL Date:
2023.11.04 16:34:36 +0530 Instruments Act. Resultantly, the accused Gaurav Khandelwal is thus, held guilty and stands convicted for the said offence.
Announced in Open Court today on 04.11.2023.Digitally signed
PADMA by PADMA LANDOL LANDOL Date: 2023.11.04 16:34:45 +0530 (PADMA LANDOL) MM (NI Act) Digital Court-03 New Delhi, PHC/Delhi/04.11.2023 Certified that this judgment contains 17 pages and each page bears my signatures.Digitally signed by PADMA
PADMA LANDOL
LANDOL Date:
2023.11.04
16:34:50 +0530
(PADMA LANDOL)
MM (NI Act) Digital Court-03
New Delhi, PHC/Delhi/04.11.2023
CC NI ACT 1105/2021 NITIN SEHRAWAT Vs GAURAV KHANDELWAL Page 17 of 17