Delhi District Court
In Re: Mohd. Mehfooj vs Mohd. Shamim on 4 November, 2022
OLITAN
IN THE COURT OF MS. NIDHI BALA, METROP
TH EAST
MAGISTRATE, NI ACT DIGITAL COURT, NOR
DISTRICT,KARKARDOMA COURT, DELHI
IN RE: MOHD. MEHFOOJ VERSUS MOHD. SHAMIM
I. Complaint Case no. : 205/2021
2. Date of Institution of case : 08.03.2021
3. Name of the complainant Mohd. Mehfooj
S/o. Qayamuddin
Rio. H no. B 19, Shankar Vihar,
Ward No. 41 , Sadullabad Patliputr
Loni , Ghaziabad, UP
4. Name of Accused person : Mohd. Shamim
S/o. Late Usman Ali
Rio. Plot no. 77, Ward No. 42, near Hayat
Enclave, Sadullabad, Loni , Ghaziabad , UP
Also at
Village Bel Bigha , Post Garua, Dist.
Gaya, Bihar.
5. Offence compl ained of : Section 138 NI Act
6. Plea of accu sed : Pleaded not guilty
7. Final Order : Convicted
8. Date of judgment : 04.11.2022
JUDGMENT
nt complaint case for an
1. Vide this judg ment I am going to decide the prese uments Act, 1881 (hereinafter offence punishable U/Sec.13 8 of the Negotiable Instr "the NI Act" ).
Page I of 18 CC No.20 5/202 1 Mo hd. Mchfo oj Vs. Mohd . Shamim I .( FAC TU AL BA CK GR OU ND :-
goo d social rela tion s are dist ant relatives and had /has
2.l Com plai nan t and accu sed com plai nan t. In the n took eco nom ic help from the with each othe r and accu sed ofte efor e, he requ este d was in dire need of money, ther month of Janu ary 201 8, accu sed ) for the peri od of one I the com plai nan t for the friendly loan of Rs. I 0,00 ,000 /-(Ten lac cash and Rs.2 ,00, 000 /- ,000 /-(T wo Lac s) with him in year. Com plai nan t had Rs. 2,00 5,00 ,000 /-(F ive Lacs) o Lac s) he took from his you nge r brot her Man soo r and Rs. (Tw me he used to sup ply mon ey from one Waqeel who com plai nan t took the adv anc e ine Lac s) with in one the amo unt of Rs.9 ,00, 000 /-(N bags to and ther eby arra nge d the sam e. The reaf ter, plai nan t told to accu sed abo ut month by his best efforts and com of Rs. 9,00 ,000 /-
8 accu sed took the said amo unt in the first wee k of Feb ruar y 201 pres enc e of bro ther t as a friendly loan in cash in the (Nine Lacs) from the com plai nan that he shall return r and one Ran dhe er and assu red of com plai nan t nam ely Man soo the money with in one yea r .
ves aid frie ndly accu sed did not retu rn the abo 2.2 Des pite pass ing of two yea rs d to refu nd the sam e com plai nan t requ este d the acc use loan to the com plai nan t , then num ber 798 310 accu sed issued a che que bea ring as soon as pos sibl e and on this Ban k, Vasant Kunj /-( Nin e Lac s) draw n on And hra dated 30.1 1.20 20 of Rs.9 ,00, 000 "the che que in , New Del hi in favo ur of the com plai nan t (her eina fter Branch com plai nan t that the ve said liability and assu red the question") in disc harg e of his abo ce of the accu sed, its pres enta tion . Afte r the assu aran said che que shall be enc ash ed on bein g mai ntai ned at in que stio n in his ban k acc oun t com plai nan t pres ente d the che que (wit hin the juri sdic tion Bra nch , Kar awa l Nag ar, Del hi Union Ban k of Indi a, She rpu r n was retu rned as the said che que in que stio of this court). How eve r, che que retu rn mem o on "Funds Insufficient" vide unp aid/ dish ono red for the reas app rise d him abo ut com plai nan t met accu sed and dated 05 .12.2020. The reaf ter nan t to pres ent the n and accu sed aske d the com plai dish ono ur of che que in que stio Page 2 of 18 CC No.205/2021 Mohd . Mehfooj Vs. Mohd . Shamim ~~~ com p lainant nt this time and acc ord ing ly and ass ure d for its enc ash me d and the sam e again returne stion again to his ban ker presented the che que in que return uffi cien t" vid e che que for the reason "Fu nds Ins back unpaid/ dish ono ure d memo dated 22. I 2.2 020 .
upon its pre sen tati on, que in que stio n two tim es 2.3 Aft er the dis hon our of che of dis hon our of the che que d and told him abo ut the fact com pla ina nt met the acc use but Rs .9,0 0,0 00/ -(N ine Lacs) ask ed him to pay in cash the loan am oun t of and 1, Com pla ina nt sen t a ly ref use d for the sam e. The rea fter on 08. 01. 202 accused nat call ed upon him to ma ke the use d thro ugh his cou nse l and legal dem and not ice to acc ice day s of rec eip t of legal not oun t in que stio n wit hin 15 pay men t of the che que am oun t des pite serv ice of use d fail ed to ma ke the pay me nt of the che que am but acc the Com pla ina nt aga ins t the sen t com pla int is filed by notice and the refo re, the pre .
er Sec tion 138 of the NI Act acc use d for the off enc e und Sec tion 138 NI Act , prim a facie ing red ien ts of
3. On bei ng sati sfie d of the acc use d and he ent ere d e was tak en and sum mo ns wer e issu ed aga ins t the cog niz anc . On and he was adm itte d to bail his cou nse l on 05. 04. 202 1 his app ear anc e alo ngw ith ser ved upo n the acc use d 1 not ice und er Sec tion 251 Cr. PC was fram ed and 09.04. 202 facts Acc use d adm itte d cer tain gui lty and cla ime d trial. to whi ch he ple ade d not he tion 294 Cr.P.C wh ere in nt to wh ich his stat em ent was rec ord ed und er Sec pur sua ts suc h as nam e, nat ure ,ho we ver , den ied fill ing up the oth er con ten adm itte d his sig of fur the r adm itte d the fact am oun t upo n the che que in que stio n. Acc use d dat e and the and stat ed to hav e giv en not ice sen t by com pla ina nt rec eiv ing the legal dem and ple a of def enc e, acc use d the sam e to com pla ina nt. Wh ile put ting fort h his rep ly to d is ina nt. The ple a of acc use am oun t tow ard s the com pla den ied liab ility of che que r for rea dy refe ren ce:
bei ng rep rod uce d her ein afte f ~V91 mim Page 3 of I 8 Mohd. Mchfooj Vs. Mohd. Sha CC No.205/2021 mplainant. I do not d no t giv en the ch eque in question to co "I ha the month of lia bil ity tow ar ds the complainant. In ow e an y an d I have a 20 16 , wi fe of my brother ha d expired De ce mb er cheque in question.
mi gh t have stolen the use doubt tha t ac cu sed fe ha d visited our ho rin g tha t tim e co mplainant an d his wi ati Du accommod on t Ku nj wh ere I wa s residing in a ren ted at Vasan eque book. I pt 2-3 bla nk sig ne d cheques in my ch an d I ha d ke ow nant . I came to kn n fro m the complai rec eiv ed did no t take any loa ion when i t the dis ho no ur of the cheque in quest ab ou d deceased fe wi de ma nd no tic e. Wi fe of complainant an the leg al t want to say anything cousin sisters. I do no of my brother were else. "
under section gra nte d liberty to move an application n tail
4. The accused was the ing his defence in de cross exam ine the complainant mention 145 (2) of NI Act to was allowed.
ved accordingly which and the same was mo MPLAINANT:-
5. EVIDENCE OF CO his evidence in ide nc e, the co mp lai nant (CW-I) tendered
5.J. In Complaina nt's ev ing documents:
d relied upon the follow the form of affida vit an y of affidavit.
e of complainant by wa .2020
i) Ex . CW-1 /A : Evidenc no. 798310 dated 30.11
Ex . CW -1/2: Or iginal Cheque bearing san t Kunj
ii) Bank, Va
.9,00 ,00 0/- (N ine La cs) drawn on Andhra of Rs ring his statement dmitted by accused du Branch, New Delhi(A 94 Cr.P.C, 1973) recorded under Sec.2 .12 .2020.
/3: Or igina l Ch eq ue Return Memo dtd. 05
iii) Ex. CW-1 .
Memo dtd. 22.12.2020 Ex . CW -1/4: Or iginal Cheque Return 21
iv) . 08 .01.20 sent by
-1 /5: Sta tut ory Le gal demand notice dtd
v) Ex. CW al demand to ac cu sed (T he fac t of n~ceiving the leg Complainant cused).
nant is admitted by ac notice sent by complai Po eipts dtd.
6 an d Ex . CW -1/7: Two original stal rec
vi) Ex .CW-1/ .01.2021 respectively.
courier receipt dtd. 19 08.01.2021 and DTDC y)~~ Page 4 of 18 hd . Sha mim Mohd . Mchfooj Vs. Mo CC No. 205 /202 1 f legal demand notice given by Vii) Ex. CW-1 /8: Delivery pro ofo and fact of receiving the legal dem DTDC dtd. 29.01.2021 .(The admitted by accused. notice sent by complainant is of accused and mined at length on behalf 5.2. Complainant was cross exa who is his younger another witness on his behalf complainant got examined ed Rs .2,00,000/- for ther Ma nso or from who m complainant had borrow bro loan in question was n and in whose presence the arranging the loan in questio question was given by used and also the cheque in given by complainant to acc as CW-2 and was d to com pla ina nt in his pre sence and he was examined accuse of accused .
also cross examined on behalf D:-
6. EVIDENCE OF AC CU SE DW-1 and relied on Def enc e evi den ce, the acc used got himself examined as 6.1. In sent by complainant to inant for legal derr.and notice his repl y given to the compla d as Mark DW-1 /A. him and the same was marke admitted the fact that he recorded as OW-I, accused 6.2. During his testimony not given the cheque in ws the com pla ina nt, how ever further stated that he had kno alleged. Accused com pla ina nt and did not take any loan from him as question to ugh and in presence of her stated tha t he had purchased a property thro furt left at the office and his bag car ryin g his blank signed cheques had been complainant there complainant might plainant was also present and of property dealer wherein com used recorded at his che que . Ho wev er, as per the plea of defence of acc have stolen h defence rather he stated accused did not take any suc the time of framing the notice, in the month of pla ina nt alo ngw ith his wife had visited his house that the com n he might have stolen his em ber 201 6 at the dem ise of his brother's wife and the Dec ;»~0 im Page 5 of 18 Mohd . Mchfooj Vs. Mohd . Sham CC No.205/2021 sed has taken two different kept in his house. Hence, accu stands/defence. wherein all the ed und er Section 313 Cr.PC
7. The accused was then examin fact of dem and ing to the accused and · he denied the incriminating evid enc e were put also denied the loan from the com plai nan t or to have taken the sam e and alleged t rath er he stated that given by him to the com plai nan cheque in question hav ing been 's office whe re he had en his che que from the bui lder the com plai nan t mig ht have stol left his bag carr ying ted with com plai nan t for som e property deal nad there he had visi fact of kno win g the use d has further adm itte d the his blank signed che que s. Acc complainant.
nan t as well as rd at length on beh alf of Com plai
8. Final argu men ts have been hea t, how eve r, acc use d e been filed by the com plai nan accused. Written argu men ts hav . Com plet e reco rd has not file any wri tten sub mis sion s des pite givi ng opp ortu nity did been perused carefully.
OF CO MP LA INA NT :-
9. AR GU ME NT S ON BE HA LF nan t reit erat ed the Dur ing the cou rse of argu men ts, Ld. Cou nse l for com plai 9.1.
plai nan t. He furt her the evid enc e affi dav it of the com con tent s of the com plai nt and beh alf CW -2 apa rt ed that com plai nan t has exa min ed one mor e wit nes s on his argu who m he had bor row ed his you nge r bro ther and from from him self as CW -I who is in who se pre sen ce the arra nge the loan amo unt and the amo unt of Rs. 2,00 ,000 /- to also the che que in in que stio n was giv en by the com plai nan t to acc use d and loan ce. Ld. Cou nse l furt her d to com plai nan t in his pre sen que stio n was giv en by acc use ed on beh alf of both the wit nes s CW -I and CW -2 wer e cro ss exa min argu ed that hin g fav our able cou ld use d at legt h and thei r test imo nies rem aine d inta ct and not acc acc use d has adm itte d his use d. He furt her arg ued that be extr acte d on beh alf of acc his aqu aint anc e wit h the que stio n and has also adm itte d sign atur es upo n the che que in ~~~ im Page 6 of 18 CC No.205/202 l Mohd. Meh fo oj Vs. Mohd . Sham He ha s ard s the complainant. d ha s va gu ely de nie d the liability tow om pla ina nt an ue in na tur es upon the cheq t on ce the acc use d has ad mi tte d his sig further arg ue d tha in n 139 of NI Act arise pre su mp tio ns of Se cti on I 18(a) and sectio qu est ion , the legal d pre sum pti on of law na nt an d acc use d ha s failed to reb ut the sai fav ou r of the co mp lai the co mp lai na nt has d bel i ev ab le ev ide nc e. Ld. Co un sel for an by lea din g an y co ge nt lai na nt then sum pti on ha s ari sen in fav ou r of the co mp ce the pre n of fur the r arg ue d tha t on erw ise an d the burde oo f sh ifts to the acc used to pro ve oth the bu rde n of pr en tha t acc use d has tak di sch arg ed. Ld . Co unsel fur the r arg ue d co mp lai na nt sta nd s tic e sin ce du rin g his ce qu a the rec eip t of legal de ma nd no fen tw o co ntr ad ict ory de notice sen t by n the sug ge sti on tha t no legal de ma nd ha s g ive na nt, cro ss ex am ina tio n he nie d by the co mp lai rec eiv ed to him wh ich wa s du ly de co mp lai na nt wa s ng of no tic e as well a of de fen ce rec ord ed at the tim e of fra mi ple ho we ve r, du rin g his legal de ma nd ac cu sed sta ted tha t he ha d rec eiv ed the DW-1 , to as his tes tim on ey as e. Bu t acc use d failed lai na nt an d als o ga ve the rep ly to the sam no tic e sen t by co mp nc e. It is fur the r rep ly by lea din g an y co ge nt ev ide sen t the pro ve tha t he ha d be en ab le the co mp lai na nt ha s Ld . Co un sel for the co mp lai na nt tha t su bm itt ed by the the NI Ac t ag ain st the ts of the off en ce un de r Se cti on 138 of ien to pro ve all the ing red sed do es no t mp lai na nt ha s fur the r arg ue d tha t ac cu l for the co s ac cu sed . Ld . Counse trial at dif fer en t sta ge e, ha s tak en dif fer en t de fen ce s du rin g nc ha ve an y de fen ce , he Co un sel fur the r by lea din g an y co ge nt ev ide nc e. Ld . the sam e an d failed to pro ve sle ad the co urt an d to fal se ly de nie d his lia bil ity in ord er to mi ha s ye d for arg ue d tha t ac cu sed mp lai na nt ha s thu s pra bil ity tow ard s the co mp lai na nt. Th e Co av oid his legal lia u/s 138 of NI Ac t.
cu sed for the off en ce co nv ict ion of the ac SE D: -
BE HA LF OF AC CV
10 . AR GU M EN TS ON lai na nt is a dis tan t un sel for the ac cu sed arg ue d tha t co mp Co 10 .l. Pe r co ntr a, Ld . loa n sed ne ve r too k an y an d ha d vis iti ng ter ms , ho we ve r, ac cu rel ati ve of ac cu sed yt;cLW ~ Page 7 of 18 hd. Shamim Mohd. Mchfooj Vs. Mo CC No .205/2021 to the che que in question alle ged and nev er gav e om the com pla ina nt as and had pur cha sed a pro per ty pla ina nt. Ld. Cou nse l furt her arg ued that acc use d com visi ted the dea ler ' s office pla ina nt had intr odu ced him to the sell er and he had com sign ed che que s and the pla ina nt car ryin g a bag wh ich was hav ing his bla nk with com com pla ina nt mig ht have had bee n left at the bui lde r/de ale r's office and said bag ued that acc use d had que in que stio n the n onl y. Ld. Cou nse l furt her arg stol en the che e is pla ina nt to him and the sam dem and not ice sen t by com giv en the rep ly to the legal DW -1. Ld. Cou nse l further his test imo ny rec ord ed as filed by the acc use d dur ing t 9,0 0,0 00/ -to acc use d wit hou tha t the com pla ina nt gav e hug e am oun t of Rs. arg ued by com pla ina nt in or doc um ent and also the said loan was not sho wn any agr eem ent has r arg ued tha t com pla ina nt sam e. Ld. Cou nse l fur the his ITR des pite fili ng the gra b e aga ins t him in ord er to len the che que s of acc use d and filed the false cas sto mo ney .
n the the ent ire dis put e bet wee No w the for em ost pro vis ion of law to sett le
11. der for the rea dy . 138 of NI Ac t and the sam e is quo ted her eun par ties is Sec refe ren ce: - ds in for insufficiency, etc., of fun "} 38. Dis hon our of cheque on an cheque drawn by a per son the account.- Where any of any with a banker for pay me nt account ma inta ine d by him ount for r person from out of that acc am oun t of mo ney to anothe liab ility, in par t, of any debt or other the discharge, in whole or ount of aid, either because of the am is ret urn ed by the ban k unp cie nt to dit of that account is insuffi mo ney sta ndi ng to the cre ed to be it exceeds the am oun t arr ang hon our the cheque or that t bank, an agreement ma de with tha pa id fro m that acc oun t by nce and d to have com mit ted an offe suc h per son sha ll be dee me Ac t, be any other provision of this sha ll, wit hou t prejud ice to end ed to /or a term which ma y be ext pun ish ed with imprisonm ent ~~~ Page 8 of 18 mim Mohd. Mehfooj Vs. Mohd. Sha CC No.2 05/2021 ice the amount of ar s, or wi th fin e wh ich may exten d to tw two ye th:
the cheq ue, or with bo tion shall apply ide d tha t no thing co ntained in this sec Prov unless- nk within a pe rio d of en prese nted to the ba
(a) the ch eque ha s be or within the s fro m the da te on which it is drawn six month wh ichever is ea rli er;
period o_f its va lidity, of the cheque, as the the pa ye e or the ho lder in du e co urs e
(b) ym ent of the sa id a dema nd fo r the pa case may be, ma kes iting, to the drawe r of ou nt of mo ne y by giving a no tice; in wr am rty the cheque . within thi m the bank regardin g t o_f inf o rmati on by him fro days o.f the receip ue as unpaid: an d the return of the cheq the payment of the cheque fa ils to make
(c) the draw er of such the case may be, to the y to the payee or, as sa id amount o.f mone n days of the du e co urs e o.f the cheque, within fiftee holder in tice.
receipt o.f the sa id no n, "debt of oth er na tio n. - Fo r the purposes of this sectio Ex pla or other liability.
ally enforceable debt liability " means a leg NI Act, 1881 are as ingredients in order to attract Sec. 138 of II. I. The essential fo llowing: wer to the payee/ e cheq ue for an am ount is issued by the dra
i) Th ed by him.
account being maintain co mplaina nt on a bank in whole or in part ued for the di scharge, ii ) The said cheque is iss .
of any debt or liability account of by the bank unpaid on nt
iii) The cheque is returned or it exceeds the amou to honour the cheque de wi th insuffi cient amount agreement ma m that acc ount by an arranged to be paid fro the bank . the date on which it within 3 month s from
iv) The cheque is presented period of its validity . is drawn or within the pa yee or the days a leg al dema nd notic e is issued by the
v) Within 30 ue on receipt of the drawe r of the cheq holder in du e co urse to
-JY ~ ~ !'age 9 of 18 hd . Sha mim Mohd . Mc hfooj Vs. Mo CC No.205/202 1 r of the m the ba nk re ga rding the dishonou fro information by him cheque. of the said id ch eq ue fai ls to make payment sa the The drawer of the demand notice to m on ey as de m anded in the legal pt amount of the recie of in du e co ur se wi thin 15 days of the er payee or the hold said notice. was issued is lia bi lit y ag ain st which the cheque other
vii) The debt or rc e.
legally enfo eabl
eping in view the
of the pr es en t complaint case ke
the facts ed by the
12. Now , coming to ca se , it is not disput
of NI Ac t. In th is
ts of section 138 to him of a bank
es sential ingredien na tures and belongs
n be ars his sig
eque in questio e cheque in
accu sed that the ch ni ed the fact of filling up th
gh he de
tained by him thou settled by Hon ' ble
ac count being main ly observed and
on ha s be en du
propositi 9) 4 SC C 197.
question. The said M uk eslt Kumar, (201
ng h ve rs us
the case of Bir Si
Supreme Cou11 in reference:-
g re pr od uc ed he reinafter for ready are bein and handed The relevant paras af, voluntarily signed k ch eq ue le "36. Even a blan yment, would se d, wh ich is towards some pa over by the ac cu the Negotiable pt io n un de r Section 139 of attract presum idence to show t, in the ab se nc e of any cogent ev Instruments Ac harge ofa debt.
s not issued in disc that th e cheque wa ble s of the Negotia eaning fu l re ad in g of the provision , 87 an d 13 9, 37 . A m ons 20 ts Ac t in clu di ng , in particular, Secti ue an d m akes Instrumen o signs a cheq ar that a person wh idence to makes it amply cle s lia bl e un less he adduces ev e re m ain issued for it over to the paye th at the ~h eque had been pt io n immaterial rebut the presum di sc ha rg e of a liability. It is or in person other payment of a debt ve be en filled in by any m ay ha the drawer. If that the cheque eq ue is duly signed by , if th e ch ons of Section than the drawer va lid , the penal provisi he rw ise the cheque is ot acted.
138 would be attr to a payee, k ch eq ue is vo lu ntarily presented
38. If a signed blan amount and ym en t, the pa ye e may fill up the towards some pa the cheque .
Th is in its el f wo uld not invalidate other particulars.
fd~0 Pa gc 10 of 18 . Mo hd. Shamim Mo hd . Mchfo oj Vs CC No.205/2021 accused to prove that the cheque The onus would still be on the liability by adducing evidence." was not in discharge of a debt or n the duly admitted his signatures upo In the present case accused has in favour of the in que stio n thou gh den ied the fact that he issued the cheque che que that the same is a existing liability rather he stated complainant for discharge of any fact by any cogent ever he failed to establish this stolen by the complainant, how al presumption of antion thereby attracting the initi evidence or any plausible explain , during his plea of ion 139 of NI Act in favo ur of the complainant. Further sect cheque in question complainant might have stolen the defence , accused stated that the his brother's wife in gwith his wife at the demise of when he visited his house alon as DW-1 as well as d at the time of his deposition December 20 I6. On the other han complainant might 313 Cr. P.C accused stated that statement recorded under section where he had visited que at the builder/ dealer's office have stolen his blank signed che chasing a property. It his bag there at the time of pur alongwith complainant and left the two contardictory a vague plea of defence since seems that accused has taken in the case on hand.
accused during the course of trial pleas of defence were taken by has to be proved stion having been a stolen cheque Further the fact of cheque in que in the present case any cogent evidence. However, by the accused himself by leading about the cheque in the court that he came to know accused himself deposed before having been hav ing been pres ente d by complainant and the same question t to him by the the legal demand notice sen dishonoured when he received plaint regarding his take any action or filed any com complainant but still he did not person is having blank ther, it is hard to believe that a cheque having been stolen. Fur he got the same back, he left it somewhere and when signed cheques in his bag and and if his entire bag g from his bag is missing or not he did not even check if anythin e only despite knowing not take any action at that tim was missing then why did he µ;·c1.~· ~ Page l I of 18 CC No .205/202 l Mohd. Mchfooj Vs. Mohd. Shamim defence taken by ng his bla nk sig ned cheques. So the plea of at the same was carryi of nce since the action to be va gu e wi tho ut any tenable substa accuse d appears not even ue as alleg ed by him , seems absurd as he did cheq acc used qua his stolen ainst him by the mp lai nt aft er filing of the present case ag bother to file any co complainant.
Apex Court , the view the afo res aid observation of Hon ' ble 12.1. Keeping in ed.
d in the preced ing paragraph stands fulfill as discu sse essential ingredient (i) estion as well as mi tted fac t of dis hono ur of the cheque in qu Accused has further ad , v) tial ingredients iii) , iv) g the legal de ma nd notice. Hence, the essen fact of recei vin .
and vi) also stand proved n I 3 8 of NI t and the rem ain ing core ingredient of sectio
13. Now coming to the las ue in question was of co ntr ov ers y he rein i.e . whether the cheq Act and the real issue t Section 139 of the NI Ac arge of an y de bt or liability, whole or in part. iss ued in disch mandates that ord ing to Se ction 139 of NI Act, which acc is ge rmane to this and r of a cheque received is pro ve d, it is to be presumed that the holde unless the contrary ole or in ed to in Se ction 138 for the discharge, in wh e referr the cheque of the natur liability.
part, of any debt or other der Section rei n tha t the pre sum ption contemplated un 13.1. Needless to me ntion he n. However, the Ins tru me nts Ac t, is a rebuttable presumptio 139 of the Negotiable or other liability is ch eq ue wa s no t in discharge of any debt onus of proving that the pa v. Sr i eq ue . Th e Ho n ' ble Su preme Court in Rangap the ch on the accused drawer of s 118(a) and has hel d tha t the pre su mptions under Section C 441 Mohan, (2010) 11 SC same accused need reb uttab le in na tur e and for rebuttal of the 139 of the NI Act are placing reliance on the the wi tne ss bo x as he can rebut the same by not even step into ~'~~ h d. Shamim Page 12 of 18 CC No. 205 /202 l Mohd. Mchfooj Vs. Mo al position by the com plainant. It is also a well settled leg aterial brought on record sumptions of fact and law sum pti on s can be reb utted even by raising pre that the pre tled that the standard terial ava ilable on record. It is further well set on the basis of ma babilities and d to pro ve his defenc e is preponderance of pro required from the accuse able doubts.
his defence beyond reason accused need not prove signatures on sen t cas e, sin ce the accused has admitted his 13.2. Now in the pre and terms of Section I I8 (a) qu estion , the re ari ses an initial presumption in cheque in orceable liability in t not on ly reg ard ing existence of legally enf I 39 of the NI Ac estion by the nt but als o reg arding issuance of cheque in qu favour of the complaina d aid liability since accuse fav ou r of com pla ina nt in discharge of his afores accused in ion in favour of fac t tha t he did not issue the cheque in quest has failed to prove the that the is trite to mention herein pla ina nt to discha rge any existing liability. It the com accused has been able on is reb uttabl e in nat ure and whether or not the said presumpti be decided after pti on is a qu estion of fact which needs to to rebut the said pre sum iding parties in the light of gu on of ent ire evi den ce led on behalf of both the appreciati ed herein above and n by the Ho n'b le Su preme Court as mention principles laid dow e.
circumstances of each cas depends upon the facts and the accused has ue in the case in hand is to determine whether 13.3. The primary iss a has successfully raised discharging his burden, that whether he succeeded in of complainant to er to create a reason able doubt in the case probable defence in ord plainant.
of law in favour of com discard the presumption also cross examined the used has cho sen to depose as a witness and J3.4. The acc lainant and the to be see n in the light of t!1e evidence of comp complainant. Now it is l in dislodging the case use d as wi tness as to whether he is successfu deposition of acc ~ ,Jw- ~ Shamim Page 13 of 18 CC No. 205 /2021 Mohd. Mehfooj Vs. Mohd.
cumstances which record such facts/material/cir compla ina nt by bringing on present nt into disbelief. In the y/e vid enc e of com pla ina Juld res ult the tes tim on 139 NI Act only to reb ut the pre sum pti ons u/s. l 18(a) and se,t he acc use d has trie d to Co mp lain ant to not giv en the che que in que stio n n the gro un d tha t he had Fur the r com pla ina nt ilit y but the sam e is a stolen cheque. isc har ge any exi sti ng liab g hav ing any thi ng in wri tin e am ou nt of loa n in que stio n to him wit hou t ave a hug des pit e filing the same. o he did no t sho w the loa n in que stio n in his ITR nd als cus sed tog eth er.
def enc e rel ied on by the acc use d shall be dis l4. Gr ou nd s for mi ght hav e stolen the a of def enc e, acc use d stated that the com pla ina nt Du rin g his ple e at the dem ise of his stio n wh en he vis ited his hou se alo ngw ith his wif che que in que tio n as d at the tim e of his dep osi the r ' s wif e in De cem ber 201 6. On the oth er han bro d sta ted that tem ent rec ord ed und er sec tio n 313 Cr. P.C acc use DW-1 as we ll as sta lde r/d eal er's office ght hav e sto len his bla nk sig ned che que at the bui com pla ina nt mi bag the re at the tim e of had vis ited alo ngw ith com pla ina nt and left his wh ere he ve thi s fact how eve r, acc use d aga in mi ser abl y failed to pro pur cha sin g a pro per ty, ent evi den ce.
exm ini ng the Co mp lai nan t or by lea din g any cog eit her thr ogh cro ss que stio n hav ing been e two con tra dic tor y sta tem ent s qua the che que in Inf act he gav acc use d me rel y sai d tha t the com pla ina nt wh ich see ms imp lau sib le sin ce sto len by aba d qua his lost che que , had giv en the com pla int to pol ice in PS Lo ni, Gh azi tha t he suc h as giv e det ails of the sam e eve r, fail ed to pro duc e the said com pla int or to how e of pur cha sin g d als o fail ed to giv e the det ails of the tim e and dat date. Fu rth er, acc use wh ere alle ged ly his wh ich he had vis ited the dea ler/bu ild er 's off ice the pro per ty for mi tted ly, acc use d had ght hav e bee n sto len by the com pla ina nt. Ad che que s mi and he fur the r sta tea leg al dem and not ice sen t by com pla ina nt to him rec eiv ed the eve r, acc use d has fai led to had giv en the rep ly of the sam e to com pla ina t, how that he ord the and onl y pla ced on rec ve this fac t by lea din g any cog ent evi den ce pro ·d~ -~ ~ mim Pag cl4 ofl 8 Moh d. Mehfooj Vs. Mohd . Sha CC No.205/202 l . .
iowcopy of said reply mark ed as M ark DW -1/A with out filing any proo fof send ing .
111e same to com plain ant and qua th e d e 1Ivery of same to the com plain ant and .
b · · comp laina nt has duly deni ed th·IS f:act Y giving, sugg estio n to accused during .his · · testim ony reco rded as DW- 1 a t th e tune of his cross exam inati on. Hence, the two · h · · devoid of pleas of defe nce take n by ac cused d unng t e trial are self cont radictory and h the excerpt of merits in the abse nce of a ny ev1·d ence to t e same. Refe renc e made to able to to obse rve that the accu sed has not been the cros s-ex amin ation of the accu sed plain t , at any poin t in time , subm itt ed any com lead any evid ence to show that he had to the e and that he chos e not to respo nd even abou t his miss ing cheq ue to the Polic unde r befo re institution of the proc eedi ngs legal notic e sent by the com plain ant ion nts Act. Ther e is a pres ump tion unde r Sect Sect ion 138 of the Nego tiabl e Instr ume been that an instr ume nt is presu med to have 139 of the N egot iable Instr ume nts Act of le debt and that in the abse nce of denial issue d in disch arge of a legal ly enfo rceab ue ence by the petit ione r to show that the cheq the sign ature s on the cheq ue or any evid r had it must be pres ume d that the petit ione in ques tion had actua lly been stole n, n discharge of his liabi lity. There is no reaso issued the cheque to the com plain ant in any of to agitate and purs ue his right in case or occa sion for any prud ent pers on not the is misused. It is there by obse rved that hi s signed instr ume nt is stole n and thou ght.
argument raise d by the accu sed is an after that the 14.1. Ano ther leg of argu men ts raise d by Ld. Coun sel for accu sed was ng loan to accu sed as alleg ed with out havi com plain ant gave the huge amo unt of sed, cont entio n of Ld . Coun sel for the accu anyt hing in writing. To dete rmin e this case t of Hon ' ble Hi gh Cou rt of Delh i in the reference may be taken from the judg men 6. ar and Anr.2017 SCC Onli ne Del 1024 titled Dilip Chawla versus Ravi nder kum The relev ant para is as unde r:-
1J;rffeA' ~ Page 15 of 18 CC No. 205/2021 Mo hd . Mehfooj Vs. Moh d. Shamim "22. It is not nece ssar y that ever y loan t~a?saction is required to I~ nt. True is ~hat if an agreement ?e entered into after an agre1~:e is ex~ cute d for givi ng of I definite proo f of the fact th I and receipt is produced, it is a Nonetheless this is not at oan has been given to an accused.
a statutory requirement." 14.2. Now com e to the last I f for accused . eg o argu men ts raised by Ld. Counsel t h at com plai nan t has not show n t h e alleg ed loan given to the accused in his ITR ta of Lekh Raj Sharma v. Yash Pal Gup desp ite filin g the sam e. In the case (2015) 221 DI_,T 58 5 the Delh i High Cou rt held that a complaint u/s. 138 of the t · • h . . return.
Act is mai ntai nab le even whe n th e ransact1on 1s nots own in income tax ' ble inde r kumar and Anr.(supra). The Hon furt her in Dili p Cha wla vers us Rav Hig h Cou rt of Delh i held as unde r:-
cash may entail negative "23 . The adva ncem ent of loan in an Inco me Tax assessee as cons eque nces for a party especially 269 SS of the Income-Tax his havi ng acte d in brea ch of Section the requ irem ent as to the Act, 1961. Cha pter XXB provides for yme nt in certa in cases to mod e of acce ptan ce, paym ent or repa SS of the Inco me-T ax Act coun tera ct evas ion of tax. Section 269 off date shall take or acce pt man date s that no person, after the cut sit othe rwis e than by an from any othe r pers on any loan or depo paye e bank draft if the acco unt paye e cheq ue or an acco unt ch of Sect ion 269S S of the amo unt is mor e than Rs. I 0,000/-. Brea whic h a pers on wou ld be Inco me-T ax Act prov ides pena lty to subj ecte d to unde r Sect ion 271 D. not prov ide that such
24. How ever , Section 271 D does tran sact ion wou ld be null and void .
be the inco me tax return may max imu m In my opin ion, a loan not disc lose d in loan by the doub t in belie ving the fact of givi ng treated as a fact crea ting reas onab le appl ied in is not the blan ket obse rvat ion to be com plain ant to accu sed, how ever , this case to the facts and circ ums tanc es of each each and ever y case and it depe nds upon shall mere non- disc losu re of loan in the ITR reach to this conc lusio n as to whe ther ~·aµ ·~ Page 16 of 18 CC No.205/202 l Mohd. Mchfooj Vs. Mohd . Shamim complainant lo an to th e accused by the e fact o f giving the present case existence o f th re nder th e ve ry rv at io n th at complainant in o f the obse t showing lievable. I am an d mere fact o f no unreliable/ unbe givi ng lo an s capacity o f ay cc essf ully explained hi Tax Act and m ha s su e him lia bl e in the Income aximum mak s ITR shall m the same in hi is fact st im on y as un reliable w.r.t. th not turn his te bring on ab ili tie s, th e accused has to derance o f prob ther O n th e as pects o f prepon to conclude ei 15 . s w hi ch m ay lead the court rcumstance obable that a cts and such ci xi st ence was so pr record such fa its no ne t exist or that that the eration did no ca se , ac t upon the plea that the consid of th e circumstances vanlal P at el en t m an w ou ld , under the rt in Rohitbhai Ji prud pr em e C ou The Hon 'ble Su gs have did not exist. an d in va rious other rulin consideration SCC 10 6 ther 2019) 18 ce at e o f G uj arat an d Ano negative eviden vs St th er e m ay no t be sufficient at though en, yet mere , emphasized th to di sc harge his burd time and again cu se d rd by the ac ction 118 brought on reco as en visaged under se which could be rebu tta l quirements o f 10 w ou ld not fulfil the re al v. State, 20 de nial en he ld in Rajesh A ga rw r, it has be NI Act. Furthe and 139 o f the to el 2501 that:- accused fails SCC online D es um pt io n th at even if an ce nt. If an no pr inno "9.. .. .. There is be considered t his de fe nc e, he is still to ou r o f th e cheque in bring ou ai ns t di sh on sibility a defence ag th e de fe accused has kn ow s nce and respon this g he alone who d then provin question, it is de fe nc e to the court an t this of spelJing ou "
fe nc es is on the accused ..... de s o f the th e fa cts and circumstance eping in view
16. case in hand, ke ption o f law as In the present in this re ga rd , the presum sition o f law rescue o f d the settled po ea rly co me to the present case an NI A ct cl I 8(a) and se ction 139 o f in question in per sect ion l su ance o f cheque e fa ct o f is f proving th accused has d his burden o sc ha rg ed and the complainant an an ds di ea bl e debt st legally enforc discharge of MA·~ · ~ im Page 17 of 18 Vs. Mohd. Sham 1 Mohd. Mch fooj CC No .205/202 the foregoing failed to dischr ge his reverse onus. In the light of niserably not led any cogent opinion that the accused has iscussions, this court is of the Act. There is nothing den ce to reb ut pre sum ptions under Sec. 118 and 139 of NI evi by the accused out during the trial wh ich wo uld probablise the defence raised coming inant.
or falsify the case of the compla issued the nt has proved that the accused had
17. In the above view, the complaina eable liability. This for discharge of the legally enforc cheque in question in his favour the present case, in the facts and circumstances of Court has considered opinion that offence under Sec .
case against the accused for the the complainant has proved his s, held guilty and . Resultantly , the accused is, thu 138 Negotiable Instruments Act nce.
stands convicted for the said offe ~· ~ J» (NIDHI BALA) Announced in Open Court MM (NI Act) Digital Court, today on 04.11.2022 hi North East, Karkardooma, Del signatures.
s 18 pages and each page bears my Certified that this judgment contain ~rl,,w' ~ (NIDHI BALA) MM (NI Act) Digital Court, hi North East, Karkardooma, Del