Delhi District Court
Harish Gupta vs Deepak Verma on 1 October, 2022
IN THE COURT OF MR. SARTHAK PANWAR,
METROPOLITAN MAGISTRATE09, NI ACT, SOUTHWEST,
DWARKA, DELHI
In Re:
CNR No. DLSW020167042019
CC No. 12715/2019
Sh. Harish Gupta
S/o Late Laxmi Narayan Gupta
R/o A104, Vikas Nagar Extn.
Near Rajdhani Public School,
Delhi.
............Complainant
Versus
Sh. Deepak Verma
S/o Sh. Vinod Verma
R/o - H.No. 51/51A Ground Floor,
Vikas Nagar Phase - 1, Near Mrk
Public School,
New Delhi. .............Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
(3) Date of institution of case : 25.06.2016
(4) Date of conclusion of arguments: 27.08.2022
Harish Gupta vs Deepak Verma
CC No.12715 of 2019 DOD 01.10.2023 Page no. 1 of 23
(5) Date of Final Order : 01.10.2023
(6) Final Order : CONVICTION
JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act').
2. Brief facts relevant for the decision of the case are as under: In his complaint, the complainant alleged that the father of the accused and complainant were in a friendly relations for last many years. He further alleged that the accused had approached the complainant and requested for friendly loan of Rs.7,00,000/ as the accused was facing financial problems and wanted to come out of dire financial crises with the help of the friendly loan. Thereafter, in the month of December 2015, the complainant had given a friendly loan of Rs.7,00,000/ to the accused for four months. Thereafter, the expiry of four months for repayment of the friendly loan, accused issued two cheques bearing No. 547185 dated 02.04.2016 for a sum of Rs.5,00,000/ and cheque bearing No. 547186 dated 16.04.2016 for a sum of Rs.2,00,000/ drawn on State Bank of India, Uttam Nagar Branch. New Delhi with a assurance that the aforesaid cheques will be Harish Gupta vs Deepak Verma CC No.12715 of 2019 DOD 01.10.2023 Page no. 2 of 23 encashed upon their presentation. Thereafter, the complainant presented the above mentioned two cheques with his banker i.e. Bank of Maharashtra, Branch Vikaspuri, Delhi which were returned dishonoured with the remarks "Insufficient Funds" vide returning memo dated 11.04.2016 and 25.04.2016. Thereafter the complainant finally sent a legal notice dated 11.05.2016 through a speed post calling upon the accused to repay the total cheque amount of Rs.7,00,000/ and despite service of aforesaid notice, neither any reply was sent nor any payment was made by the accused. Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In his presummoning evidence, complainant examined himself on affidavit as Ex. CW1/A. He reiterated the contents of complaint and placed on record two original cheques in question Ex. CW1/1 and Ex. CW 1/2, original cheque returning memos as Ex. CW1/3 and Ex. CW 1/4, Copy of legal demand notice as Ex. CW1/5, Original receipts of postal department as Ex. CW1/6 and tracking reports as Ex. CW1/7.
4. Upon appreciation of presummoning evidence, accused was summoned for an offence punishable under Section 138 of the Act and thereafter the accused was admitted on bail on 14.08.2018. Further, on the 14.08.2018 itself, notice under Section 251 Cr.P.C. for the offence u/s 138 Negotiable Instrument Act was framed upon him to which he pleaded not guilty and claimed trial. Further, he admitted his signature on the cheques in question. However, he denied filling any other details Harish Gupta vs Deepak Verma CC No.12715 of 2019 DOD 01.10.2023 Page no. 3 of 23 on the cheques in question. Accused further denied receiving of legal notice, however, he admitted that legal notice bears his correct address. In his plea of defence in aforesaid notice, accused further stated that he has not taken any loan from the complainant. He further stated that the complainant is friend of accused's father and he did not know how his cheques fell into the custody of the complainant. He further stated that the comlainant had misused the present two cheques in question .
5. In post summoning evidence on 30.11.2019, complainant had adopted his presummoning evidence filed by way of affidavit as his post summoning evidence and relied upon the documents already on record in presummoning evidence as detailed above. Complainant as CW 1 was duly crossexamined by Ld. Counsel for the accused and discharged. Thereafter, complainant on the same day dropped witnesses mentioned at serial No. 2 and 3 from the list of witnesses.
6. Thereafter, statement of accused under Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to him, in which accused again admitted that the two cheques in question belongs to him and are signed by him. Accused further stated that he do not know the complainant and he never issued the cheques in question in favour of the complainant, in fact he states that he gave the cheques in quesiton to his father and he does not know how these cheques fell into the hands of the complainant. He further stated that he only came to know about the misuse of the cheques when Court documents were received by his parents. He further stated that complainant had misused Harish Gupta vs Deepak Verma CC No.12715 of 2019 DOD 01.10.2023 Page no. 4 of 23 the cheques in question. On being asked that whether he wants to lead defence evidence, accused stated that he does not wants to lead defence evidence.
7. Thereafter, matter was listed for final arguments. It was argued by the Ld. counsel for complainant that this is a fit case for conviction of the accused as all the essential ingredients of Section 138 of the Act read with Section 139 of the Act have been fulfilled and that the same has been aptly demonstrated by the complainant before the court. Ld. Counsel for the complainant further stated that accused has admitted his signatures at the time of framing of notice u/s 251 Cr.P.C as well as in his statement U/s 313 Cr.P.C. Ld. Counsel for the complainant further argued that the version of the accused that no loan transaction happened between complainant and accused at all and that the accused has given the blank signed cheques to his father and that the accused did not know how the cheques fell into the hands of the complainant and that he does not know the complainant at all is purely a baseless and concocted story which is not supported by any evidence on record. It was further averred by the Ld. Counsel for the complainant that accused has failed to raise any probable defence in order to disprove the case of the complainant and has failed to rebut the presumption u/s 139 r/w section 118(a) of the Act, therefore accused is liable to be convicted u/s 138 of the Negotiable Instruments Act.
8. Per contra, Ld. Counsel for the accused reiterated the version of the accused in answer to the notice u/s 251 Cr.P.C as well as Harish Gupta vs Deepak Verma CC No.12715 of 2019 DOD 01.10.2023 Page no. 5 of 23 in his statement u/s 313 Cr.P.C. He further argued that no loan transaction happened between accused and the complainant since the accused do not know the complainant at all personally and complainant is only friend of his father. He further argued that the cheques in question were given by the accused to his father and accused did not know at all that how it fell into the hands of the complainant. He further argued that complainant has no financial capacity to grant the present loan. He further stated that the complainant have misused the present cheques in question. He further submitted that evidence of complainant suffered from material lapses and was not sufficient to establish the case against the accused. He submitted that complainant has failed to prove his case beyond reasonable doubt and accused is liable to be acquitted u/s 138 of Negotiable Instruments Act.
9. I have perused the entire record as well as the evidence led by the complainant as well as the accused. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first: Before finding the conviction of the accused u/s 138 of the Negotiable Instruments Act, it has to be established by the complainant cumulatively that :
(i) the cheque in question was issued by the accused in favour of the complainant in discharge of legally enforceable liability;
(ii) presentation of the cheque to the bank within three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
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(iii) a demand being made in writing by the payee or holder in due course by the issuance of a notice in writing to the drawer of the cheque within thirty days of the receipt of information from the bank of the return of the cheques; and
(iv) the failure of the drawer to make payment of the amount of money to the payee or the holder in due course within fifteen days of the receipt of the notice.
The legal position was discussed by the Hon'ble Supreme Court of India in MSR Leathers vs. S. Palaniappan (2013) 1 SCC 177, wherein it was held that, "6........ The proviso to Section 138, however, is all important and stipulates three distinct conditions precedent, which must be satisfied before the dishonour of a cheque can constitute an offence and become punishable. The first condition is that the cheque ought to have 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 second condition is that the payee or the holder in due course of the cheque, as the case may be, ought to make a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, Harish Gupta vs Deepak Verma CC No.12715 of 2019 DOD 01.10.2023 Page no. 7 of 23 within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. The third condition is that the drawer of such a cheque should have failed to make 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. It is only upon the satisfaction of all the three conditions mentioned above and enumerated under the proviso to Section 138 as clauses (a), (b) and (c) thereof that an offence under Section 138 can be said to have been committed by the person issuing the cheque.
This Court shall now examine if the four ingredients as described in the forgoing paragraph has been satisfied in this case.
10. That whether the cheque in dispute was presented within the period of its validity or not has not been disputed by the accused at any stage of trial. Accordingly, condition no. (ii), as above stands satisfied.
11. Accused has stated in the notice framed by this Court u/s 251 Cr.P.C that he has not received the legal demand notice i.e. Ex. CW 1/5. However, he has admitted the legal demand notice bears his correct Harish Gupta vs Deepak Verma CC No.12715 of 2019 DOD 01.10.2023 Page no. 8 of 23 address. At this stage, it would be instructive to have regard to Section 27 of General Clauses Act, which provides that service of any document by post shall be deemed to be effected by properly addressing, pre paying and posting by registered post, the letter containing the said document. As such when viewed in conjunction with the postal receipts Ex. CW 1/6 as well as the testimony of CW 1 on oath that he had sent the legal notice on the correct address of the accused, a presumption can be raised that legal notice was duly served upon the accused. Even otherwise, if the version of the accused to the extent that he has not been served with the legal notice is believed, the accused still cannot take the benefit on account of nonservice of legal notice as he failed to make the payment of the amount mentioned in cheque in dispute in present case even after being served with the summons of above captioned complaint. At this juncture, this Court seeks law laid down by Hon'ble Supreme Court of India, in case of C.C. Alavi Haji vs. Palapetty Muhammed, (2007) 6 SCC 555, wherein it has been held as follows: " It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims 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 Harish Gupta vs Deepak Verma CC No.12715 of 2019 DOD 01.10.2023 Page no. 9 of 23 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. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act.
Accordingly, conditions No.(iii) and (iv) as above also stands satisfied as it is matter of record that accused had due notice of the pendency of the present complaint despite which he failed to make the payment of cheques in question to the complainant.
12. It is now remains to be seen whether the cheques in Harish Gupta vs Deepak Verma CC No.12715 of 2019 DOD 01.10.2023 Page no. 10 of 23 question which is Ex. CW 1/1 and Ex. CW 1/2 were issued by the accused in favour of the complainant in order to discharge his legally enforceable liability.
13. At this stage, it becomes imperative to mention that Section 139 of NI Act 1881 which carves out the presumption in favour of drawee that the cheque was issued to him in discharge of debt or other legally enforceable liability. Also, the said provision can be read alongwith Section 118(a) of the Negotiable Instrument Act 1881 which spells out another presumption in favour of the drawee that every negotiable instrument was drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.
Section 118 (a) of the N.I. Act provides :
"Presumptions as to negotiable instruments. --Until the contrary is proved, the following presumptions shall be made: 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;
Section 139 of the N.I. Act further provides as follows : "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."
14. For the offence of Section 138 of the Act, a presumption u/s Harish Gupta vs Deepak Verma CC No.12715 of 2019 DOD 01.10.2023 Page no. 11 of 23 118(a) and Section 139 have to be compulsorily raised as soon as execution of cheque by the accused is admitted or proved by the complainant and thereafter the burden is shifted upon accused to prove otherwise. These presumptions shall be rebutted when only when the contrary is proved by the accused i.e. the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a primafacie case for a party for whose benefit it exists. Presumptions under both the sections i.e. Section 118(a) and Section 139 of N.I. Act are rebutable in nature. Same was held by Hon'ble Supreme Court of India in case of Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC.
In the present case, accused has admitted his signature on the cheques in question, in answer to notice u/s 251 Cr.P.C and also in his statement u/s 313 Cr.P.C. Reference can be made to judgment of the apex Court in Rangappa vs Mohan AIR 2010 SC 1898, that " once the cheque relates to the account of the accused and he accepts and admits the signature on the said cheque, then initial presumption as contemplated u/s 139 of the Negotiable Instrument Act has to be raised by the Court in favour of the complainant."
Also in the case of K. Bhaskaran vs. Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under: " As the signature in the cheque is admitted to be that of the accused, Harish Gupta vs Deepak Verma CC No.12715 of 2019 DOD 01.10.2023 Page no. 12 of 23 the presumption envisaged in section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability."
In view of the forgoing discussions, this Court is of the considered opinion that a presumption u/s 139 r/w section 118(a) N.I. Act can duly be raised against the accused.
15. The offence of Section 138 of the N.I. Act being premised on the theory of reverse onus of proof, the next point of determination is whether the accused has been able to discharge the onus of proof placed upon him. The journey of trial qua a complaint u/s 138 N.I. Act commences after a determination is made that presumption as per section 139 r/w section 118(a) of N.I. Act can be raised against the accused and when such presumption is duly raised, it is the accused who is required to prove that the cheque in question was not given for any consideration or for discharge of any legally enforceable debt. In this regard, reliance can be placed upon judgment of Hon'ble Supreme Court of India in case of Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC.
"....................................... because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, ..., it is obligatory Harish Gupta vs Deepak Verma CC No.12715 of 2019 DOD 01.10.2023 Page no. 13 of 23 on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused"
(ibid). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume"
a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non existence of the presumed fact.
In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to 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 considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the Harish Gupta vs Deepak Verma CC No.12715 of 2019 DOD 01.10.2023 Page no. 14 of 23 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'."
16. In the backdrop of legal position as enunciated above, it is to be examined by this Court that whether the accused on a scale of preponderance of probabilities has been able to rebut the presumption which has been raised against him and in favour of the complainant, or has been able to demolish the case of the complainant to such extent so as to shift the onus placed upon the accused again on the complainant. As held by Hon'ble Supreme Court of India in case of Kumar Exports vs Sharma Carpets (2009) 2 SCC 513, the accused can either prove the nonexistence of the consideration and debt by direct evidence or by bringing on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt either did not exist or their nonexistence was so probable that a prudent man may act upon the plea that they did not exist. If the Court comes to the conclusion that accused has not been able to rebut the presumption raised against him by failing to bring on record direct evidence or by even failing to sufficiently perforate the case of the complainant, the Harish Gupta vs Deepak Verma CC No.12715 of 2019 DOD 01.10.2023 Page no. 15 of 23 complainant is entitled to a decision in his favour.
17. In light of the aforesaid legal position, this Court shall now first examine that whether the accused has been able to prove his defence in affirmative or not, by carrying out scrutiny of the evidence which has been led at the trial.
18. The Principal defence of the accused which has been brought out after reading his answer in notice u/s 251 Cr.P.C as well as in his Statement u/s 313 Cr.P.C is that accused has never taken any loan whatsoever from the complainant. He further stated that his father and the complainant were friends and he issued the cheques in question in favour of his father and he does not know that how theses cheques fell in the hands of the complainant. He further stated that the present cheques in question are misused by the complainant.
19. However, in the opinion of the Court, this version of the accused that he never took any loan from the complainant and the cheques in question were issued to his father and not to the complainant, could only be proved by the accused by calling his father to depose as a witness in the Court, but the accused in order to prove this version, has neither called his father as a defence witness nor got his father summoned through Court in order to depose before this Court. In fact, he himself has stated in his statement u/s 313 Cr.P.C that he do not want to lead any defence evidence in the present case. Further, to substantiate this version not even a single piece of evidence is brought on the record Harish Gupta vs Deepak Verma CC No.12715 of 2019 DOD 01.10.2023 Page no. 16 of 23 by the accused. Thus, in absence of any oral as well as documentary evidence, this defence version of the accused without any proof is not tenable at all and cannot be sustained. Reliance in this regard can also be placed on the decision of Hon'ble Supreme Court of India in case of Sumeti Vij vs. Paramount Tech Fab Industries (Cr. A 292 of 2021) in which it has been held that "the statement of the accused recorded u/s 313 of the Code is not substantive evidence of defence, but only an opportunity to the accused to explain the incriminating circumstances appearing in the prosecution case of the accused".
20. Ld. Counsel for the accused in his final arguments also raised a contention for the version taken by the accused in the application filed by the accused u/s 145(2) of N.I. Act and stated that the accused's father and the complainant were having good friendly relations for more than 10 years and complainant used to visit the house of the accused quite oftenly in order to spend time with his father. He further stated that accused and complainant were not in any relationship whatsoever and he never took loan of Rs.7,00,000/ from complainant. He further stated that accused used to leave blank signed cheque book at home for the purpose of meeting any urgent necessity in his absence as the accused had to go out of Delhi for professional purposes. He further stated that cheques in question might have been manipulated by the complainant after stealing the same from the house of the accused as complainant used to come and sit in his house for hours with the father Harish Gupta vs Deepak Verma CC No.12715 of 2019 DOD 01.10.2023 Page no. 17 of 23 of accused. In this regard, it is pertinent to note that mere averments made in the application u/s 145(2) N.I. Act cannot be treated as the evidence in the present matter. Moreover, even if we consider the facts averred by the accused in his aforesaid application, in order to prove his version that cheques of the accused were stolen by the complainant, accused has not produced any substantive evidence before this Court. In fact, he has not produced any evidence at all. Moreover, the accused has not even filed a single complaint before the appropriate authorities Police or otherwise for the theft of his cheques in dispute against the complainant till date. Thus, in absence of any oral as well as documentary evidence, this defence version of the accused without any proof is not tenable at all and cannot be sustained.
21. Ld. Counsel in his final arguments also argued that complainant did not show his sources of funds for the advancement of present loan to the accused. Reliance has been placed on the answer given by the complainant in his crossexamination in which complainant stated that he do not file any Income tax Returns (ITR) and he used to earn Rs.15,000/ per month at the time of the filing of present case. However, in the very same crossexamination, complainant has clarified that he has arranged the money from his own savings at home, savings of his wife, money given by son and his friend Praveen. Thereafter, to disprove these facts asserted by the complainant in his cross examination, the accused never called the complainant to produce the record of his own earnings and savings or the earnings and savings of his son or his wife or his friend Praveen. Neither accused himself called Harish Gupta vs Deepak Verma CC No.12715 of 2019 DOD 01.10.2023 Page no. 18 of 23 any one of them as witness nor got any one of them summoned through the Court as witness in the Court. Further, in the opinion of the Court, it is highly improbable to believe that life time income and savings of the accused and of his family and friends were not enough so as to grant the friendly loan to the accused. Also further, in the opinion of the Court it is highly improbable to believe that no loan transaction has happened between the parties as accused himself admitted in his plea of defence taken in notice u/s 251 Cr.P.C framed by this Court as well as in his application u/s 145(2) N.I. Act that accused and his father were having good friendly relationship for more than 10 years. Moreover, in the present matter accused has not lead any defence evidence at all in order to prove his defence version that no loan transaction has happened between the accused and complainant and cheques in question were given to his father by the accused and not to the complainant. In fact, in his statement u/s 313 Cr.P.C, accused has stated that he did not want to lead defence evidence at all. In view of the above, this argument of Ld. Counsel at the stage of final arguments appears only a belated attempt to cast a doubt upon the case of the complainant and is devoid of any merit and cannot be considered. Reliance in this regard can also be placed on the decision of Hon'ble High Court of Delhi in case of Sanjay Arora vs Monika Singh, Crl. Appeal No. 98 /2017, wherein it was observed that : " Mere admission of the complainant that he was earning only Rs.12,000/ per month from small business, or his failure to file income tax returns or his omission to produce the bank passbook or to examine Harish Gupta vs Deepak Verma CC No.12715 of 2019 DOD 01.10.2023 Page no. 19 of 23 Chhotu as a witness in corroboration are inconsequential. In order to rebut the statutory presumption, it was a burden of the respondent to prove the facts that she had pleaded in answer to the notice under section 251 Cr.P.C. No material in support of such plea having come on record, statutory presumption under section 139 of Negotiable Instrument Act in the case in hand has not been rebutted."
22. Ld. Counsel for the accused in his final argument also stated that the cheques in question in the present case were blank signed cheques which were misused by the complainant. However, as discussed previously, this story of the accused is not supported by any credible evidence and does not inspire the confidence of the Court and hence cannot be considered. So far as it relates to the fact that cheques were blank signed cheques, once accused had admitted his signatures on the cheques, he cannot escape his liability on the ground that particular have not been filled by him, or the signature on the cheque and the contents are filled in different writing and ink. When such a cheque containing blank is signed and handed over, it means that person signing it, has given implied authority to the holder of the cheque, to fill up the blank which he has left. It has been clearly laid down in section 20 of Negotiable Instrument Act, 1881 that where one person signs and delivers to another a Negotiable Instrument either wholly blank or Harish Gupta vs Deepak Verma CC No.12715 of 2019 DOD 01.10.2023 Page no. 20 of 23 having written thereon incomplete Negotiable Instrument, he thereby gives, "prima facie authority to the holder thereoff to make or complete, as the case may be, upon it a Negotiable Instrument". In the case of Satish Jayantilal Shah Vs. Pankaj Mashruwala & anr., 1996 Cri.L.J.3099, it has been held that : "No law provides that in case of any Negotiable Instruments, entire body has to be written by maker or drawer only."
In the case of Moideen vs Johny, 2006 (2) DCR 421, it has been held that when a blank cheque is issued, the drawer gives an authority to a person to whom it is issued, to fill it at appropriate stage with necessary entries and to present it to the bank. Since, the accused has admitted that he has signed the cheques in question, he cannot dispute the contents of the cheques in question. Hence, the accused has failed to rebut the presumption raised against him u/s 139 r/w 118(a) of Negotiable Instrument Act in present case.
23. In view of the above, this court is of the considered opinion that the accused could not raise a probable defence in order to rebut the presumption under section 139 r/w section 118(a) of Negotiable Instrument Act. The complainant has disclosed the existence of a legally enforceable debt or liability vide the cheques in question, return memos, legal notice and other documents brought on record. There is sufficient material on record to conclude that complainant has successfully proved his case beyond reasonable doubt.
24. Accordingly, the accused is convicted for the offence under Harish Gupta vs Deepak Verma CC No.12715 of 2019 DOD 01.10.2023 Page no. 21 of 23 Section 138 of Negotiable Instruments Act, 1881.
25. Let the convict be heard on quantum of sentence.
26. Copy of Judgment be supplied to the convict free of cost.
ANNOUNCED IN THE OPEN COURT
Digitally signed
TODAY On 01.10.2022 by SARTHAK
SARTHAK PANWAR
PANWAR Date: 2022.10.01
13:45:57 +0530
(SARTHAK PANWAR)
METROPOLITAN MAGISTRATE 09 (NI Act)
SOUTH WEST DISTRICT, DWARKA
NEW DELHI
Harish Gupta vs Deepak Verma
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Harish Gupta vs Deepak Verma
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