Delhi District Court
Pritpal Singh vs . Sehaj Sports on 10 April, 2023
IN THE COURT OF SH. PANKAJ RAI
METROPOLITAN MAGISTRATE 05 (N.I. ACT), ROUSE AVENUE COURTS:
NEW DELHI DISTRICT
CC No. 12553/2019
Pritpal Singh Vs. Sehaj Sports
1. Complaint Case number : 12553/2019
2 Name and address of : Pritpal Singh
the complainant proprietor of "M/s. Step In Style"
having shop at 9A, Central Market, Masoodpur Road,
Vasant Kunj, New Delhi110070.
3. Name and address of : 1.Sehaj Sports
the accused through its properietor
Shop at : 12/289, Shop No.3. DDA, Flats, Main Road,
Madangir, New Delhi110062.
2. Om Prakash
proprietor of Sehaj Sports
S/o Saju Ram, R/o 18/101, Nursing Residential
Complex, Sriniwaspuri, New Delhi110065.
4. Offence complained of : Section 138 of the Negotiable Instruments Act, 1881.
5. Plea of the accused : Pleaded not guilty and claim trial.
6. Final Order : Convicted
7. Date of Institution : 30.08.2019
8. Date of Reserving the : 06.03.2023
Judgment
9. Date of pronouncement : 10.04.2023
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 ').
Case No. 12553/19 Pritpal Singh Vs. Sehaj Sports Page No. 1/17
2. Brief facts relevant for the decision of the case are as under:
It is the case of the complainant that he is the proprietor of "M/s. Step In
Style" and is running a shop with same name and is engaged in the business
of all kinds of sports goods etc. That accused no.1 Sehaj Sports is the
proprietorship firm and that accused no.2 Om Prakash is its sole proprietor
(hereinafter "accused"). It is further averred that complainant and accused are
engaged in the same business of sports goods and that they are having
business relationship since last many years. That apart from business
transaction, the accused approached the complainant for seeking financial
help for his business and that the complainant many times gave amount in
cash and that since August, 2017 till the date of institution of present
complainant has given a sum of Rs.19,54,118/ to the accused (including
balance due amount and cash for personal financial help). It is also averred
that till date the accused had returned only a sum of Rs.11,50,000/ to the
complainant and that there is an outstanding of Rs.8,04,118/ against the
accused. That the accused had personally assured for timely payment but
failed to clear the same despite repeated reminders from the complainant.
That on 10.06.2019 the accused gave one signed cheque dated 10.06.2019
bearing no. 981502 for Rs.3,50,000/ drawn on State Bank of India, Nehru
Place, New Delhi, in partial discharge of liability towards the complainant.
However, the cheque in question got dishonored on presentation on account
of "funds insufficient" vide returning memo dated 24.06.2019, constraining the
complainant to send a legal demand notice dated 20.07.2019 to the accused,
which was delivered to the accused and which was replied by the accused on
22.07.2019. However, no payment was made to the complainant within
stipulated statutory time period. Hence, the present complaint.
3. Being summoned, accused appeared before this court and notice was
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framed on 21.01.2020, to which he pleaded not guilty and claimed trial. In his
plea of defence, the accused has admitted his signatures on the cheque in
question. He has further admitted that he had a friendly loan from the
complainant and that he had made some payments of the loan amount. That
he had issued the cheque in question as a security cheque to the complainant.
He stated that the amount as shown in the cheque is not the correct amount
that he owed to the complainant. He had further admitted that he had filled the
amount on the cheque in question.
4. To prove his case the complainant has examined himself as CW1, who
reiterated the version of the complaint and relied upon the following
documents to prove the liability of the accused:
(i) Ex.CW1/A : Copy of evidence by way of affidavit;
(ii) Ex.CW1/1 (OSR) : GST registration of the complainant;
(iii) Ex.CW1/2 : Original cheque in question dated 10.06.2019;
(iv) Ex.CW1/3 : Original Return memo;
(v) Ex.CW1/4 : Office copy of legal notice dated 20.07.2019;
(vi) Ex.CW1/5 and Ex.CW1/6 : Original postal receipts;
(vii) Ex.CW1/7 and Ex.CW1/8 : Original courier receipts;
(viii) Ex.CW1/9 (colly) and Ex.CW1/10 : reply by the accused to the legal
demand notice with its envelop; and
(ix) Ex.CW1/11 (colly) : copy of bank account statement of the complainant
from 01.01.2017 to 31.03.2019.
5. The complainant was cross examined and discharged and CE was
closed on 07.12.2022. Thereafter, statement of accused was recorded under
section 313 Cr.P.C on 17.01.2023 and accused chose to lead DE. However,
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vide separate statement of the accused, DE was closed on 21.02.2023. Final
Arguments heard from both the sides. Case record and written submissions
perused.
6. It is submitted by Ld. Counsel for the 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. That the bank
account statement of the complainant has also been filed on record. That the
accused had admitted his signatures on the cheque at the stage of notice
framing under section 251 Cr.P.C. That the legal demand notice was duly
delivered to the accused and that no payment was made by the accused to the
complainant within 15 days of its receipt. That the defence of the accused was
contradictory at various stages and it does not inspire confidence. It is finally
submitted that accused failed to raise the probable defence to disprove the
case of complainant and to rebut the presumption under Section 139 of the
Act. Therefore, accused be convicted for the offence under Section 138 of the
Act.
7. Per contra Ld. Counsel for the accused has argued that complainant
failed to prove the transaction of grant of loan to the accused and that no loan
document has been produced on record by the complainant to substantiate his
claim that any loan was ever advanced by him to the accused. It is also argued
that the complainant has failed to disclose sufficient sources of funds for
present loan and the adequacy of his income. That the entire alleged
transaction is in violation of Section 269 SS of Income Tax Act which cannot
be termed as a legally recoverable debt within the meaning of Section 138 of
NI Act. It was argued that evidence of complainant suffered from material
lapses and was not sufficient to establish the case against accused. She
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submitted that complainant has failed to prove his case beyond reasonable
doubt and accused is entitled to be acquitted of offence u/s 138 of the Act.
8. It would be apposite at the stage to briefly discuss law applicable to the
offence of dishonour of cheque. For the offence under Section 138 of the Act
to be made out against the accused, the complainant must prove the following
points, that:
(i) the accused issued a cheque on account maintained by him
with a bank;
(ii) the said cheque had been issued in discharge, in whole or
in part, of any legal debt or other liability;
(iii) the said cheque has been presented to the bank within a
period of three months from the date of cheque or within the
period of its validity;
(iv) the aforesaid cheque, when presented for encashment,
was returned unpaid/dishonoured;
(v) the payee of the cheque issued a legal notice of demand to
the drawer within 30 days from the receipt of information by
him from the bank regarding the return of the cheque; and
(vi) the drawer of the cheque failed to make the payment
within 15 days of the receipt of aforesaid legal notice of
demand.
9. In the case in hand, the facts of issuing the cheque, signature of
accused on the cheque and receipt of legal demand notice by the accused are
not disputed. In a case under Negotiable Instrument Act, the complainant need
not to prove the existence of liability as once these facts that the cheque in
question belongs to the accused and the signature on the cheque in question
Case No. 12553/19 Pritpal Singh Vs. Sehaj Sports Page No. 5/17
are of the accused are established, a presumption of the cheque having been
issued in discharge of a legally sustainable liability and drawn for good
consideration, arises by virtue of Section 118 (a) and Section 139 of the NI Act
and the court presumes that the cheque was issued in discharge, in whole or
in part, of any debt or their liability. At this stage, with the help of the
presumption under Section 139 of the Act, the case of the complainant stands
proved. When the presumption is raised in favor of the complainant, the
burden shifts upon the accused to disprove the case of the complainant by
rebutting the presumption raised in favour of the complainant. Being the rule of
reverse onus, it is the duty on the accused to prove that he does not owe any
liability towards the complainant. The accused can displace this presumption
on the scale of preponderance of probabilities by raising a probable defence
and the lack of consideration or a legally enforceable debt need not be proved
beyond all reasonable doubts. The accused has to make out a fairly plausible
defence which is acceptable to the court. This the accused can do either by
leading own evidence in his defence, or by raising doubt on the
material/evidence brought on the record by the complainant. For this, reliance
is placed upon the judgment of Apex Court in case title Rangappa Vs. Sri
Mohan (2010) 11 SCC 441 and Kumar Exports vs Sharma Carpets (2009) 2
SCC 513.
10. Therefore, the only question which is to be adjudicated by this Court
now is as to whether the accused, on a scale of preponderance of
probabilities, has raised any probable defence to discredit the case of the
complainant so as to shift the onus placed upon it to the complainant or not.
11. The complainant i.e. CW1, was duly cross examined on 20.09.2022
and 07.12.2022 by Ld. Counsel for the accused. During his cross examination
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as CW1 the complainant had stated that he knows the accused since last 25
years and that he had both friendly and business relationship with the accused
and that the accused used to supply sports goods to him. He deposed that the
accused approached him for financial help in the year 201617 and that he had
advanced the loan amount to the accused by way of cash as well as by bank
transfer from his current account. He admitted that he had taken no
receipt/document in this regard. He admitted that had not entered into loan
agreement with the accused. He stated that the amount was advanced on the
basis of mutual trust. The long standing business relationship and the fact that
parties are known to each other is not disputed from the side of the accused.
He further deposed that he had given a loan of Rs.17 lacs to Rs. 18 lacs to the
accused and that in this sum an amount of Rs. 2 lacs to Rs. 3 lacs were for
business purposes and that the rest of the amount comprises of friendly loan.
He further stated that all the money was transferred from the bank account of
his proprietorship firm.
12. The complainant has also filed on record copy of his bank account
statement of HDFC bank Ex. CW1/11 (Colly) and Mark A which corroborates
the above claim of the complainant of having advanced different amounts on
various dates to the accused as mentioned therein. He had also filed copy of
his ITR of financial year 201617 Mark B. The complainant has admitted in his
complaint as well as during his cross examination by Ld. Counsel for the
accused on 07.12.2022 that he had received total payment of Rs.11,50,000/
from the accused against the above dues. There is no challenge by the
accused to the admissibility, authenticity or genuineness of above bank
account statement of the complainant. No suggestions were given to the
complainant that the copy of bank account is not genuine or that it is forged or
fabricated.
Case No. 12553/19 Pritpal Singh Vs. Sehaj Sports Page No. 7/17
13. Ld. Counsel for the accused has contended that the complainant has not
produced / failed to provide any loan receipt or proof of adequacy and source
of his income and that the complainant has failed to provide any loan
agreement to establish payment by him and that the complainant has failed to
prove that his annual turnover of the firm was to the tune of Rs.30 lakhs to
Rs.35 lakhs and that the complainant has not been able to prove that the loan
amount was mentioned in the balance sheet of the firm and that the
complainant has not assigned any reason for the nonproduction of the same
and that the advancement of loan amount was in violation of Income Tax Act,
1961.
14. It is difficult to accept the above contentions of Ld. Counsel for the
accused for the reason that the complainant in the present case is not solely
relying upon the presumption under section 139 NI Act to prove his case. The
complainant has filed on record his undisputed bank account statement Ex.
CW1/11 (Colly) and Mark A for the time period 01.01.2017 to 31.03.2019 and
when the same is carefully perused in totality, it shows various payments
made by the complainant on different dates to the accused and even after
deducting the admitted amount of Rs.11,50,000/ as received from the
accused, there remains a balance outstanding against the accused which is
clearly more than the cheque amount. The submissions of Ld. Counsel for the
accused would have been relevant had there been no such bank account
statement on record. It is only then it could have been argued that the
presumption stood rebutted by the cross examination of the complainant by
creating a doubt over the complainant's case. When the documentary
evidence in the form of bank account statement of complainant is already
placed on record then the considerations that there is no loan agreement /
balance sheet on record or that there is income proof etc becomes irrelevant
Case No. 12553/19 Pritpal Singh Vs. Sehaj Sports Page No. 8/17
and pales into insignificance. Accused himself had admitted at the time of
framing of notice U/s. 251 Cr.P.C that he had taken friendly loan from the
complainant and that he had made some payments to the complainant which
is the implied admission of debt / liability towards the complainant. Under such
circumstances, completely ignoring or discarding the bank account statement
would amount to denying the truth.
15. Simply alleging that the accused has no liability towards the complainant
is only a bald assertion and accused could have independently proved this
fact, but no cogent evidence has been brought on record regarding this. Bare
denial by the accused does not amount to rebuttal of presumption. Moreover,
there is no statutory requirement for execution of loan agreement before giving
any amount as loan. Nonproduction of balance sheet of the firm does not lead
to any adverse inference as there is bank account statement of the
complainant on record. The mere fact that the amount was given in violation of
section 269 SS of Income Tax Act is a separate matter between revenue and
party concerned and the accused cannot derive any advantage out of it and it
further does not invalidate the proceedings under section 138 NI Act since it is
a distinct statutory offence arising upon the dishonor of cheque.
16. For this reliance is also placed upon the judgment of Hon'ble Bombay
High Court in Krishna P Morajkar v. Joe Ferrao, 2013 SCC OnLine Bom
862, wherein the High Court observed as under:
''26. ....the entire scheme of the Income Tax Act is for ensuring that all
amounts are accounted. If some amounts are not accounted for, the
person would be visited with the penalty or at times even prosecution
under the Income Tax Act, but it does not mean that the borrower can
refuse to pay the amount which he has borrowed simply, because there
is some infraction of the provisions of the Income Tax Act. Infractions of
provisions of Income Tax Act would be a matter between the revenue
Case No. 12553/19 Pritpal Singh Vs. Sehaj Sports Page No. 9/17
and the defaulter and advantage thereof cannot be taken by the
borrower......"
17. It is to be noted that the present proceedings are not a civil proceeding
for recovery of money by the complainant where the onus is upon the
complainant to prove his case. The presumption U/s. 139 of NI Act has already
been stacked up against the accused and the reverse onus is rather upon the
accused to prove his defence. Reliance is also placed upon the decision of
Apex Court in Rohit Bhai Jeevan Lal Patel Vs. State of Gujarat 2019 SCC
OnLine SC 389 wherein it was held as follows:
".....The observations of the Trial Court that there was no
documentary evidence to show the source of funds with the
respondent to advance the loan, or that the respondent did not
record the transaction in the form of receipt of even kachcha notes, or that there were inconsistencies in the statement of the complainant and his witness, or that the witness of the complaint was more in know of facts etc. would have been relevant if the matter was to be examined with reference to the onus on the complaint to prove his case beyond reasonable doubt. These considerations and observations do not stand in conformity with the presumption existing in favour of the complainant by virtue of Sections 118 and 139 of the NI Act. Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not....."
18. The propositions of Rohitbhai Jivanlal Patel v. State of Gujarat (supra) were reiterated by the Apex Court in the recent case of Kalamani Tex v. P. Balasubramanian (2021) 5 SCC 283 wherein it was observed as under: "13. Adverting to the case in hand, we find on a plain reading Case No. 12553/19 Pritpal Singh Vs. Sehaj Sports Page No. 10/17 of its judgment that the trial court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NI Act. The statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these "reverse onus" clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystallised by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat in the following words: (SCC pp. 12021, para 18):
"18. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the trial court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the trial court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the appellant accused." (emphasis supplied).
14. Once the 2nd appellant had admitted his signatures on the cheque and the deed, the trial court ought to have presumed that the cheque was issued as consideration for a legally en forceable debt. The trial court fell in error when it called upon the respondent complainant to explain the circumstances under which the appellants were liable to pay. Such approach of the trial court was directly in the teeth of the established legal posi tion as discussed above, and amounts to a patent error of law."
19. Moreover, the accused in his defence under section 251 CrPC has admitted that he had taken friendly loan from the complainant and that he had issued the cheque in question as security to the complainant. He has firstly stated that the amount in cheque in question is not the correct amount. However, he himself has admitted therein that he had filled the amount on the Case No. 12553/19 Pritpal Singh Vs. Sehaj Sports Page No. 11/17 cheque. There is no explanation from the accused that if he does not owe that particular amount as mentioned in the cheque in question towards the complainant then why he has filled this amount in his own handwriting. The cheque in question has been voluntarily issued to the complainant. It is a settled law that upon receipt of cheque from the accused, the complainant is permitted by law to fill his name and present the cheque for encashment with his banker. For this reliance is also placed upon the judgment of Hon'ble Delhi High Court in the case of Ravi Chopra vs State 2008 SCC OnLine Del 351.
20. Merely pleading at the time of notice framing under section 251 CrPC that the cheque was issued only as a security cheque is not sufficient for the accused. The law on the defence of 'security cheque' is clear. It does not make a difference whether the cheque has been given towards payment actually due or for security purposes, what has to be seen by the court is that there should be existing legally enforceable debt or liability as on the date mentioned on the cheque and the security cheque should not be a cheque pertaining to advance payment to be made by the accused. In Suresh Chandra Goyal vs Amit Singhal Crl. Appeal Nos.601/2015 decided on 14.05.2015, the Hon'ble Delhi High Court, inter alia, observed as follows:
"28. There is no magic in the word "security cheque", such that, the moment the accused claims that the dishonoured cheque (in respect whereof a complaint under Section 138 of the Act is preferred) was given as a "security cheque", the Magistrate would acquit the accused. The expression "security cheque" is not a statutorily defined expression in the NI Act. The NI Act does not per se carve out an exception in respect of a 'security cheque' to say that a complaint in respect of such a cheque would not be maintainable. There can be mirade situations in which the cheque issued by the accused may be called as security cheque, or may have been issued by way of a security, i.e. to provide an assurance or comfort to the drawee, that in case of failure of the primary consideration on the due date, or on the happening (or not happening) of a Case No. 12553/19 Pritpal Singh Vs. Sehaj Sports Page No. 12/17 contingency, the security may be enforced. While in some situations, the dishonor of such a cheque may attract the penal provisions contained in Section 138 of the Act, in others it may not."
21. In reference to this, it becomes relevant to also discuss the recent judgment of the Hon'ble Supreme Court of India in Sripati Singh vs. State of Jharkhand & Anr., 2021 SCC OnLine SC 1002 wherein the Hon'ble Court held as follows:
"17. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. 'Security' in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow.
18. When a cheque is issued and is treated as 'security' towards repayment of an amount with a time period being stipulated for repayment, all that it ensures is that such cheque which is issued as 'security' cannot be presented prior to the loan or the instalment maturing for repayment towards which such cheque is issued as security. Further, the borrower would have the option of repaying the loan amount or such financial liability in any other form and in that manner if the amount of loan due and payable has been discharged within the agreed period, the cheque issued as security cannot thereafter be presented. Therefore, the prior discharge of the loan or there being an altered situation due to which there would be understanding between the parties is a sine qua non to not present the cheque which was issued Case No. 12553/19 Pritpal Singh Vs. Sehaj Sports Page No. 13/17 as security. These are only the defences that would be available to the drawer of the cheque in a proceedings initiated under Section 138 of the N.I. Act. Therefore, there cannot be a hard and fast rule that a cheque which is issued as security can never be presented by the drawee of the cheque. If such is the understanding a cheque would also be reduced to an 'on demand promissory note' and in all circumstances, it would only be a civil litigation to recover the amount, which is not the intention of the statute. When a cheque is issued even though as 'security' the consequence flowing therefrom is also known to the drawer of the cheque and in the circumstance stated above if the cheque is presented and dishonoured, the holder of the cheque/drawee would have the option of initiating the civil proceedings for recovery or the criminal proceedings for punishment in the fact situation, but in any event, it is not for the drawer of the cheque to dictate terms with regard to the nature of litigation."
22. It is clear that the accused cannot simply make a statement ipse dixit regarding the cheque in question being a security cheque and expect to have brought on record a probable defence in the matter. However, simply because the cheque was given as a security cheque does not automatically make the accused not liable for making the said payment to the complainant. This fact must be proved altogether independently by the accused in order to present a coherent and probable defence in his favour and the accused herein had failed in that endeavor.
23. It is pertinent to note that the cheque in the instant case was dishonored for the reason "funds insufficient". The accused had not explained as to why he had not issued any stop payment instructions to his banker if he had already discharged complete liability towards the complainant or in case the amount mentioned in the cheque was not the correct amount as alleged by him. Even in his statement under section 313 of CrPC the accused has stated that the cheque in question was issued by him after signing it and after filling Case No. 12553/19 Pritpal Singh Vs. Sehaj Sports Page No. 14/17 the amount in figures as well as in words. It is not the case of the accused that the cheque in question was taken from him by the complainant by force or coercion. The reply as sent by the accused Ex. CW1/9 (colly) to the legal demand notice also belies and punctures the entire claim of the accused. Vide Ex. CW1/9 (colly) the accused has tried to make out a new case as he has stated in subpara (3) of para 4 that he disputes the claim of Rs.3.50 lakhs of the complainant and that the complainant had not considered the goods which were returned on the ground of being defective or damaged and that the same were damaged on the account of complainant's own mishandlings. No such suggestions were given to the complainant by Ld. Counsel for the accused during the cross examination that the complainant had ever supplied defective or damaged goods to the accused or that any such goods were damaged on account of mishandling by the complainant. In fact this defence was never put to the complainant during cross examination. Therefore, it can be seen the accused himself is changing his stand at every various stage of the proceeding which creates a grave suspicion about the bonafides and genuineness of his claim. The pleas raised by the accused are nothing but his ipse dixit and afterthought to somehow escape from the liability for the amount mentioned in the cheque in question. It is manifest that the accused has made an attempt to blow hot and cold in the same breath and has put forth virtually no substantive evidence to rebut the presumption that arises under Section 139 of the NI Act. Considering the fact that there has been an admitted business relationship between the parties, the defence raised by the accused does not inspire confidence or meet the standard of 'preponderance of probability'. The entire evidences on record clearly shows that this cheque was consciously issued by the accused to the complainant upon the full knowledge of his liability towards the complainant and it is only thereafter that the accused had filled the amount in the cheque in question in his own handwriting.
Case No. 12553/19 Pritpal Singh Vs. Sehaj Sports Page No. 15/1724. The judgments in the cases titled as Dashrathbhai Trikambhai Patel vs Hitesh Mahendrabhai Patel & Anr. MANU/SC/1294/2022; Ramdas vs Krishnanand Crl. Appeal No. 1522 of 2014; K. Subramani vs K. Damodara Naidu (2015) 1 SCC 99; A.R. Radha Krishna vs Dasari Deepthi (2019) 15 SCC 550; HMT Watches Ltd vs M.A. Abida & Anr (2015) 11 SCC 776 relied upon by the accused are given in their own specific facts and circumstances. It goes without saying that no judgment is an euclid's theorem, and every judgment has to be considered secundum subjectum materiam i.e in the specific light of its own facts and circumstances. So considered, the case law does not advance the defence of the accused being distinguishable on facts.
25. The accused has chosen not to lead any defence evidence on his behalf after recording of his statement under section 313 Cr.Pc. In K.N. Beena vs. Muniyappan and Another (2001) 8 SCC 458, Apex Court held that in view of the provisions of Section 139 of the Negotiable Instruments Act read with Section 118 thereof, the Court had to presume that the cheque had been issued for discharging a debt or liability. The said presumption was rebuttable and could be rebutted by the accused by proving the contrary. But mere denial or rebuttal by the accused was not enough. It was held that the accused had to prove by cogent evidence that there was no debt or liability.
26. On the basis of the legal position as noted above, this court is of the considered opinion that the accused has miserably failed to prove his defence by leading any cogent evidence, and has also failed to perforate the case of the complainant by punching any holes in the version of complainant during his cross examination. It was held by Hon'ble High Court of Delhi in V.S. Yadav vs. Reena 172 (2010) DLT 561 that defences taken by accused under section 251, Cr.P.C., and in the statement under section 313, Cr.P.C are not substantive evidence. Except for bare averments, accused has not laid any Case No. 12553/19 Pritpal Singh Vs. Sehaj Sports Page No. 16/17 cogent evidence which could be termed as a probable defence.
27. The Apex Court in the case of Sumeti Vij Vs. Paramount Tech Feb Industries 2021 SCC Online SC 201 as decided on 09.03.2021 has held that proceedings under Section 138 NI Act are quasi criminal in nature and the principles which apply to acquittal in other criminal cases are not applicable in the cases instituted under NI Act. Further it was also held that the accused has to adduce the facts to rebut the presumption under Section 139 of NI Act. Such facts must then be proved on a preponderance of probability. There is nothing else to show on record on the basis of which the presumptions in favour of the complainant could be rebutted. The accused has failed to raise a probable defence on a scale of preponderance of probabilities. Making bald averments would not serve any purpose in the absence of any credible evidentiary support. Thus, all the ingredients of offence under section 138 of the Act have been duly proved by the complainant beyond reasonable doubt.
28. For the forgoing reasons, the accused no.1 Sehaj Sports and its proprietor accused no.2 Om Prakash are hereby held guilty and stands convicted for the offence punishable under section 138 of the NI Act.
Let a copy of the judgment be given to the convict free of costs. Now to come up for arguments on the point of sentence.
Announced in the Open Court (PANKAJ RAI) on 10th Day of April, 2023 Metropolitan Magistrate05, NI Act RAC/New Delhi/10.04.2023 Case No. 12553/19 Pritpal Singh Vs. Sehaj Sports Page No. 17/17