Delhi District Court
Tarkeshwar Gupta vs . Nirbhay Singh on 18 April, 2022
IN THE COURT OF MS. AAYUSHI SAXENA
METROPOLITAN MAGISTRATE (SOUTH) 01,
N.I. ACT, SAKET COURTS : NEW DELHI
CC No. 1526/2015 & CIS No.470743/2016
TARKESHWAR GUPTA VS. NIRBHAY SINGH
1. Complaint Case number : CC No. 1526/2015 &
CIS No.470743/2016
2 Name of the complainant : Tarkeshwar Gupta,
S/o Sh. Ram Vachan Gupta,
R/o House No.63, Sudesh
Rawal Karkar Model, Mangal
Bazar, Sahibabad, Ghaziabad.
3. Name and address of the : Sh. Nirbhay Singh,
accused S/o Balwant Singh,
R/o House No. B21E, W.S.
Part1, Ramprastha Colony,
Ghaziabad, Tehsil Distt.
Ghaziabad, UP.
4. Offence complained of or : Under Section 138 of the
proved Negotiable Instruments Act,
1881.
5. Plea of the accused : Pleaded not guilty and
claimed trial.
6. Final Order : Conviction
7. Date of Institution : 29.10.2014
8. Date of Reserving the : 04.04.2022
Judgment
CC No. 1526/2015 & CIS No.470743/2016
Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 1 of 23
9. Date of pronouncement : 18.04.2022
JUDGMENT
1. The instant complaint is in respect of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter "the NI Act").
2. Briefly stated the chain of facts leading to filing of the present complaint, as has been averred in the present complaint, are that the accused came to the complainant for sale of his property bearing House no. D172, Braj Vihar, Ghaziabad, Tehsil and Distt. Ghaziabad and requested the complainant to purchase the same. It is further averred that the complainant agreed to purchase the said property and paid a sum of Rs. 5,80,000/ to the accused and at that time only, an agreement was also executed between the accused and the complainant regarding the sale and purchase of the aforesaid property. Thereafter, the complainant came to know that the accused sold out the said property to some other purchaser, whereafter, complainant approached the accused and demanded the aforesaid amount of Rs. 5,80,000/. After several requests, on 10.10.2016, accused handed over a cheque bearing no. 187880 dt. 02.11.2013 for the sum of Rs. 50,000/ drawn on Punjab & Sind Bank, Janpath, New Delhi110001 (hereinafter referred as "cheque in question"). On presentment, the cheque in question got dishonored vide return memo dated 08.11.2013 with remarks "funds insufficient". Thereafter, the complainant issued legal notice dated 21.11.2013 through speed CC No. 1526/2015 & CIS No.470743/2016 Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 2 of 23 post, which was duly served on the accused. Even after receiving the same, accused failed to honour the cheque within the statutorily prescribed period and the complainant was constrained to file the present complaint (under Section 200 of the Code of Criminal Procedure) against the accused for the offence punishable under Section 138 of the Act.
3. Vide order dated 22.08.2015, the present complaint was transferred from Patiala House Court, New Delhi to South District, Saket Court, Delhi. Pursuant thereto, vide order dated 19.01.2017 passed by Sh. Sandeep Garg, Link ACMM ,the matter was withdrawn from the Court of Ms. Niharika Kumar, Ld MM04, NI Act, South to this Court.
4. The complainant tendered his pre summoning evidence by way of affidavit Ex CW1/A and relied upon various documents mentioned therein. Cognizance of the offence was taken under section 138 NI Act vide order dated 08.05.2017 and order for issuance of summons for attendance of the accused was given.
5. Pursuant thereto, the accused entered appearance on 31.01.2018, when he was admitted to bail. On that very date, notice under Section 251 Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') was given to the accused and he was asked whether he pleaded guilty or claimed trial. In reply to this, he pleaded not guilty and claimed trial. In his statement of defence recorded at that very time, he, interalia, stated that he had entered into one agreement to sale with the complainant and the total sale consideration was decided to be Rs. 18 lakhs. It was CC No. 1526/2015 & CIS No.470743/2016 Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 3 of 23 further stated that the complainant had paid an amount of Rs.50,000/ as earnest money. It was further stated that the complainant could not arrange the remaining amount. Further, it was stated by him that the cheque in question was given to the complainant as security and that he had returned back the earnest money of Rs.50,000/ to the complainant by way of cash, however, the complainant did not return the cheque in question despite receiving the cash amount. Accused stated that he did not receive the legal demand notice dated. He admitted his signatures on the cheque in question as also other details on the same apart from name of the payee.
5.1 As the statement of defense of accused revealed a specific defense, hence she was allowed to cross examine the complainant witness under section 145(2) NI Act.
5.2 Given the nature of the allegations, Ld. Predecessor of this Court had directed that the case shall be tried as a Summons case under Chapter XX of Cr.P.C.
6. CW1 was examined in chief, cross examined and discharged on 15.10.2018. On the submissions of the complainant, CE stood closed on that very date.
7. After closure of complainant's evidence on 15.10.2018, statement of the accused under Section 313 Cr.P.C. was recorded on 14.01.2019 whereby circumstances appearing against him in evidence were put to him. While reiterating the defence taken by him at the time of recording her statement u/s 251 Cr.P.C., additionally it was stated, interalia that though an agreement was CC No. 1526/2015 & CIS No.470743/2016 Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 4 of 23 executed however, Ex. CW1/6 did not bear his signatures. It was further stated by him that two cheques of his wife of Rs. 2,50,000/ each, were given to the complainant as security at the time of execution of agreement to sale. Cash payment of Rs. 2,50,000/ was made to the complainant against one of the said cheques and the said cheque was returned by the complainant. Cash payment of Rs. 2,00,000/ had been made against the other cheque of Rs. 2.5 lakhs. Thereafter, when the accused approached the complainant to return the said cheque, the he demanded security against the remaining amount of Rs. 50,000/ and at that time, the accused issued the cheque in question of Rs. 50,000/ to the complainant. It was also stated by him that cheque in question was given as security to the complainant and cash payment had already been made to the complainant. He further stated that he was liable to pay an amount of Rs. 50,000/ and Rs. 80,000/ to the complainant.
8. Pursuant thereto, the case was fixed for defence evidence. However, despite various opportunities, accused failed to lead defence evidence and on submission of Ld. Counsel for the accused, DE was closed by this court vide order dated 17.09.2021 and matter was fixed for final arguments.
9. Arguments were heard at length on behalf of both the parties.
10. Before delving into the facts of the present case, it is necessary to look at the legal framework regarding Section 138 NI Act. The Hon'ble Supreme Court of India in Kusum Inglots & Alloys Ltd and Ors v. K Pennar Peterson Securities Ltd and Ors., CC No. 1526/2015 & CIS No.470743/2016 Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 5 of 23 (2000) 2 SCC 745 has clearly laid down the ingredients which are to be satisfied for making out a case under Section 138 NI Act, which are being reproduced hereunder:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;
(ii) that cheque has been presented to the bank within a period of six months(Reduced to three months vide RBI circular dated 4.11.2011.) from the date on which it is drawn or within the period of its validity whichever is earlier;
(iii) that cheque is returned by the bank unpaid either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days (now 30 days w.e.f. 06.02.2003) of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice;
If the aforementioned ingredients are satisfied then the person who has drawn the cheque shall be deemed to have committed an offence. In the explanation to the section CC No. 1526/2015 & CIS No.470743/2016 Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 6 of 23 clarification is made that the phrase "debt or other liability" means a legally enforceable debt or other liability.
11. Adverting now to the facts of the present case, as it has already been mentioned above, when the accused was given notice under Section 251 Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), he admitted issuance of cheque in question Ex.CW1/1 to the complainant and his signature on the said cheque. Therefore, once the accused has admitted issuance of cheque which bears his signature, there is a presumption that there exists legally enforceable debt or liability under Section 139 NI Act.
12. Presumption under Section 139 NI Act:
"Section 139 NI Act states that: "Presumption in favour of holder: It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability" (emphasis supplied).
12.1 Section 139 NI Act is a type of reverse onus clause, which stipulates a presumption in the favour of the Complainant as to fact of a cheque being received in discharge of a legal debt or liability.
12.2 Further, Section 118 (a) of the NI Act, states as follows:
"Presumptions as to negotiable instruments.Until the CC No. 1526/2015 & CIS No.470743/2016 Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 7 of 23 contrary is proved, the following presumptions shall be made:
a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;"
13. The following proposition can be summarized on a perusal of the judgments of the Hon'ble SC in APS Forex Services Pvt. Ltd. v. Shakti International Fashion Linkers and Ors. [AIR 2020 SC 945]; Rohitbhai Jivanlal Patel v. State of Gujarat and Ors. [AIR 2019 SC 1876]; Basalingappa v. Mudibasappa, [(2019) 5 SCC 418]; Kumar Exports v. Sharma Carpets, [(2009) 2 SCC 513]; K.N. Beena v. Muniyappan and Anr., [(2001) 8 SCC 458]; and Dhanvantrai Balwantrai Desai v. State of Maharashtra [1964 Cri. LJ 437]:
(i) Once the execution of cheque is admitted;Section 139 of the NI Act mandates a presumption that the cheque was for the discharge of any debt or other liability;
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities;
(iii) To rebut the presumption, the accused may adduce direct evidence to prove that the note in question was not supported by CC No. 1526/2015 & CIS No.470743/2016 Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 8 of 23 consideration and that there was no debt or liability to be discharged by him. While direct evidence cannot be insisted upon in any every case; bare denial of the passing of the consideration and existence of debt, would not serve the purpose of the accused;
(iv) Something which is probable has to be brought on record by the accused for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist;
(v) The words "unless the contrary is proved" which occur in Section 139, make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by Section 139 NI Act cannot be said to be rebutted;
(vi) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities CC No. 1526/2015 & CIS No.470743/2016 Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 9 of 23 can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely;
(vii) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
14. Adverting now to the facts of the present case, it is not in dispute that the cheque in question (Ex. CW1/1) was drawn by the accused from his bank account. Further, it is also not in dispute that the accused is the signatory of the cheque in question as in the defence disclosed by accused U/s 251 Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') and Section 313 Cr.P.C. statement; he has duly admitted the same. Now, once the issuance of cheque and signatures thereon are admitted by the accused, presumption under Section 139 Negotiable Instruments Act,1881 will get attracted. Let us now see whether the accused has been able to raise a probable defence in his favour and has been able to rebut the said presumption.
15. It is the defence of the accused that he entered into an agreement to sell with complainant, wherein total sale consideration was Rs 18 lakhs and the complainant had paid an amount of Rs.50,000/ as earnest money. It is further the defence of the accused that the cheque in question was given as security and the same was not returned to him despite payment of the amount. Pertinently, no proof of repayment has however CC No. 1526/2015 & CIS No.470743/2016 Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 10 of 23 been furnished by the accused. If the cheque was retained by the complainant, even after repayment of the amount by the accused, then, looking from the lens of a prudent person, the accused should have reported this factum to the concerned authorities or should have reported it to the police. But no such steps were taken by the accused. Merely by saying, that the amount was repaid and cheques in question was not returned back to the accused , would not suffice. Accused hasn't done anything more than making bare statements.
16. It is the defence of the accused that the cheque in question was given to the complainant as security.
16.1 Before delving into the merits of the present case, it would be apposite to take note of the decision of Hon'ble Supreme Court in the case of Sampelly Satyanarayana Rao vs. Indian Renewable Energy Development Agency Ltd., (Criminal Appeal No.867 of 2016) wherein it has been held as hereunder:
"10. We have given due consideration to the submission advanced on behalf of the appellant as well as the observations of this Court in Indus Airways (supra) with reference to the explanation to Section 138 of the Act and the expression "for discharge of any debt or other liability" occurring in Section 138 of the Act. We are of the view that the question whether a Postdated cheque is for "discharge of debt or liability" depends on the nature of the transaction. If CC No. 1526/2015 & CIS No.470743/2016 Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 11 of 23 on the date of the cheque liability or debt exists or the amount has become legally recoverable, the Section is attracted and not otherwise.
11. Reference to the facts of the present case clearly shows that though the word "security" is used in Clause
3.l (iii) of the agreement, the said expression refers to the cheques being towards repayment of instalments. The repayment becomes due under the agreement, the moment the loan is advanced and the instalment falls due. It is undisputed that the loan was duly disbursed on 28th February, 2002 which was prior to the date of the cheques. Once the loan was disbursed and instalments have fallen due onthe date of the cheque as per the agreement, dishonour of such cheques would fall under Section 138 of the Act. The cheques undoubtedly represent the outstanding liability."
16.2 In a more recent judgment of a two judge Bench in Sripati Singh v. State of Jharkhand (2021 SCC Online SC 1002) it has been held that where in the case of a loan transaction, the borrower agrees to repay the amount in a specified time frame and issues a cheque as a security to secure the repayment and the loan is not repaid, the cheque which is issued as security would mature for presentation. It has been observed therein that:
"17. A cheque issued as security pursuant to a financial CC No. 1526/2015 & CIS No.470743/2016 Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 12 of 23 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."
Moreover, it was further explained that:
"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 CC No. 1526/2015 & CIS No.470743/2016 Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 13 of 23 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 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."
16.3 Keeping the above legal principles in mind, let us now advert to the facts of the present case. As already noted above, it is the defence of the accused that the cheque in question was given as security to the complainant and payment in lieu of the cheque in question was made to the complainant by way of cash. Pertinently, no proof of repayment of the amount, has been brought on record by the accused. If the accused had CC No. 1526/2015 & CIS No.470743/2016 Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 14 of 23 really repaid the amount ,he should have been diligent in proving the same. He even did not examine himself as a witness. In the absence of any proof for repayment of the amount, the defence of the accused does not seem to be plausible.
16.4 At this juncture, it is pertinent to refer to the judgment of Hon'ble Apex Court in K.N. Beena vs. Muniyappan and Another {SLP (Crl) 969 of 2001], wherein it has been 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. The accused had to prove by cogent evidence that there was no debt or liability. This Court clearly held that the High Court had erroneously set aside the conviction, by proceeding on the basis that denials/averments in the reply of the accused were sufficient to shift the burden of proof on the complainant to prove that the cheque had been issued for discharge of a debt or a liability. This was an entirely erroneous approach. The accused had to prove in the trial by leading cogent evidence that there was no debt or liability".
CC No. 1526/2015 & CIS No.470743/2016 Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 15 of 23
17. In the present case, the accused stated that he had duly repaid the amount of Rs. 50,000/, which was given to him by the complainant as earnest money. Though, the accused submits that the rest of the amount has been repaid to the complainant, no proof thereof has been filed by the accused. Further, it was stated by him that even after repayment of the amount, the complainant did not return the cheque in question to him. Thinking from the lens of a reasonable and prudent person, this statement of the accused does not inspire the confidence of this court, as no prudent person, will leave his/her blank signed security cheque with the lender, after duly repaying the amount. And if after repayment, the complainant did not return the cheque, the accused should have either approached the higher authorities or should have lodged a complaint with the police. This was also not done by the accused. In absence of the same, the defence raised by the accused appears to be sham and must be rejected outrightly.
18. The accused had stated that he did not receive legal demand notice. Ex. CW1/3. However, it is not the defence of the Accused that the address mentioned thereon is wrong. It is noteworthy that when notice under Section 251 Cr.P.C. was given to him, she had given the same address as mentioned in the legal demand notice.
18.1 At this juncture, it is trite to mention Section 27 of General Clauses Act, 1897 which provides the meaning of the words service by post. It reads as CC No. 1526/2015 & CIS No.470743/2016 Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 16 of 23 follows: "Section 27Where any 49 [Central Act] or Regula tion made after the commencement of this Act autho rizes or requires any document to be served by post, whether the expression "serve" or either of the ex pressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by prop erly addressing, prepaying and posting by regis tered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
18.2 Hon'ble Supreme Court in C. C. Alavi Hazi Vs. Palapetty Mohd. & Anr." reported in (2007) 6 Supreme Court Cases 555, has, inter alia, held as fol lows: "9. It is, thus, trite to say that where the payee dis patches the notice by registered post with correct ad dress of the drawer of the cheque, the principle incorpo rated in Section 27 of the G.C. Act would be attracted; the requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period pre scribed in Clause (c) of the said proviso for payment by the drawer of the cheque. Nevertheless, it would be with CC No. 1526/2015 & CIS No.470743/2016 Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 17 of 23 out prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his ad dress." It was further held in this case that 'Section 27 General Clauses Act, 1897 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnec essary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowl edge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorse ment refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed."
19. In light of the above discussion as also the fact that the cor rectness of the address mentioned in Ex.CW1/3 has not been dis puted by the accused ,it stands proved that the legal demand notice Ex. CW1/3 dated 21.11.2013 was duly served on the accused.
20. From the foregoing discussions, the court finds that the ac cused has not been unable to prove any probable defence and has CC No. 1526/2015 & CIS No.470743/2016 Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 18 of 23 failed to rebut the presumption raised under Sections 118 and 139 of the NI Act.
21. Before parting with the judgment, let us now deal with the application dated 07.12.2021 moved on behalf of the accused un der Section 340 & Section 195(i)(b) of Cr.P.C.
21.1 By way of the instant application it has been averred on behalf of the accused that on 15.02.2020, the witness Mukesh Chandra Sharma, Advocate (Notary, Govt. of In dia) sent a report dated 15.02.2020 before the court and he stated that the agreement to sell dated 17.07.2013 was not verified, signed and not registered in his record by him. It has been further averred that the said witness stated in the report that the said agreement to sell has been forged by some person. Further it has been averred that the com plainant has given false evidence i.e. agreement to sell dated 17.07.2013 for the purpose of being used in judicial pro ceedings. Further it has been prayed that an enquiry be initi ated under Section 340 Cr.P.C. against the complainant for offence committed under Section 193 of IPC for filing fabri cated and false evidence i.e. agreement to sell dated 17.07.2013.
21.2 Per contra, in its reply to the said application, it has interalia been stated that the present application has been moved without any merits and hence must be dismissed.
21.3 I have heard the arguments and also gone through the record carefully. Before delving into the merits, it would be CC No. 1526/2015 & CIS No.470743/2016 Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 19 of 23 apposite to to look at various judicial pronouncements per taining to Section 340 Cr.P.C. It was held in the case of Iqbal Singh Marwah v. Meenakshi Marwah (2005 AIR SCW 1929) that "in view of the language used in Section 340, Cr.P.C. the Court is not bound to make a complaint re garding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words "Court is of opinion that it is expedient in the interest of justice". This shows that such a course will be adopted only if the in terest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary inquiry and record a finding to the effect that it is expedient in the interests of justice that inquiry should be made into any of the offences referred to in Section 195(i)(b). This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administra tion of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valu able property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circum stances, the Court may not consider it expedient in the inter CC No. 1526/2015 & CIS No.470743/2016 Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 20 of 23 est of justice to make a complaint." In the case of Jagjit Kaur v. LieutenantColonel Harjeet Singh (2000 (1) JCC Delhi 28), it was held by the Hon'ble Delhi High Court that the provisions of Section 340 are intended to provide safe guard against criminal prosecution on insufficient grounds filed against a party by his opponent motivated by a revenge ful desire to harass the opponent. It is not the law that every false statement should attract the provisions of section 340 Cr.P.C. If the Court is to notice every falsehood that is sworn to by the parties in courts there would be very little time for courts for any serious work other than directing prosecution for perjury. The gravity of the false statement, the circum stances under which such statement is made, the object of making false statement and its tendency to impede and im pair the normal flow of the course of Justice are matters for consideration.
21.4 In the present case, the accused has admitted that an agreement to sell was executed between the complainant and him and the two cheques of his wife of Rs. 2.5 lakhs each were given to the complainant as security at the time of execution of agreement to sell. Vide order dated 04.06.2019, the an application moved on behalf of accused, for sum moning the witness Mukesh Chand Sharma, to prove agree ment to sell dated 17.07.2013, that was executed between the complainant and the accused, was allowed. However, as the said witness did not appear, Ld. Counsel for the accused made a submission that the accused did not wish to examine CC No. 1526/2015 & CIS No.470743/2016 Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 21 of 23 the said witness and vide order dated 17.09.2021, DE stood closed. Pertinently the accused also did not enter the witness box to prove that the abovementioned agreement Ex. CW1/6, was forged. Moreover, the accused has, throughout the proceedings, admitted issuance of the cheque in question to the complainant. He however stated that he had repaid the amount to the complainant. However, as already discussed above, the accused failed to bring any cogent evidence to prove his defence. When his statement under Section 313 Cr. P.C. was recorded and he was shown the agreement to sell Ex. CW1/6, he stated that the said agreement did not bear his signatures. Now, if the accused wanted to prove that the said document was forged, then he should have en tered the witness box and proved the same. The accused failed to do so. Be that as it may, as issuance of cheque by the accused in favour of the complainant is not disputed, it was incumbent on the accused to prove that the cheque in question was not issued towards any debt or liability.
22. In light of the above discussion, I am of the considered opin ion that there has been no attempt to subvert the administration of justice by the complainant. It is absolutely not expedient in the in terest of justice to proceed further under Section 340 Cr.P.C. There is no merit in the present application. Hence, present application under Section 340 Cr.P.C. moved by the accused/applicant is hereby dismissed. Application stands disposed off accordingly.
23. In the background of the factual and legal position taken note supra, in the instant facts, the court finds that the accused per CC No. 1526/2015 & CIS No.470743/2016 Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 22 of 23 son has not been able to prove any probable defence and has failed to rebut the presumption raised under Sections 118 and 139 of the NI Act.
24. Therefore, accused is held guilty and convicted for commis sion of offence punishable under Section 138 of the Negotiable In strument Act, 1881.
25. Let the convict be heard separately on quantum of sentence. Copy of this judgment be given free of cost to the convict.
Digitally Announced in the open Court on 18.04.2022 AAYUSHI signed by AAYUSHI SAXENA SAXENA Date:
2022.04.18 16:04:47 +0530 (Aayushi Saxena) Metropolitan Magistrate01 (South), NI Act/Saket/New Delhi/18.04.2022 CC No. 1526/2015 & CIS No.470743/2016 Tarkeshwar Gupta Vs. Nirbhay Singh Page No. 23 of 23