Delhi District Court
Mukesh Gupta vs . Praveen Prakash Singhal 1/19 on 22 August, 2023
IN THE COURT OF MS. DIVYA SINGH
METROPOLITAN MAGISTRATE, DWARKA COURTS, NEW
DELHI
Criminal Complaint No.: 1093/2019
Mukesh Gupta ......... Complainant
Versus
Praveen Prakash Singhal ......... Accused
1. Name & address of the complainant: Mukesh Gupta s/o
Shri Rajender Prasad
Gupta R/o A-22, Naya
Bazar, Najafgarh, New
Delhi-110043
2. Name & address of the accused : Mr. Praveen Prakash
Singhal R/o B-122
, 2nd Floor, Vivek Vihar,
Near Oxford Public
School, Delhi-110055
3. Offence complained of : U/S 138, The
Negotiable Instruments
Act,1881.
4. Date of Institution of case : 09.01.2019
5. Plea of accused : Pleaded not guilty.
6. Final order : Acquittal
7. Date of decision of the case : 22.08.2023
CC no :1093/2019
Mukesh Gupta Vs. Praveen Prakash Singhal 1/19
JUDGMENT
1. Vide this judgment, I shall dispose of the aforementioned complaint case as filed by the complainant, Mukesh Gupta (hereinafter referred to as the complainant) against accused Praveen Prakash Singhal, (hereinafter referred to as the accused).The present complaint has been filed against the accused u/s 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as the NI Act).
2. The brief facts as alleged by the complainant in his complaint are that accused and complainant both were friends, due to which a bond of mutual trust and confidence between them was formed. That accused approached the complainant in the month of September 2015 as he was in stress and dire need of funds and accordingly, the accused requested the complainant for a friendly loan of Rs. 10,00,000/. In view of the long terms relations with the accused, the complainant advanced an amount of Rs. 10,00,000/- as friendly loan for a period of one year at an interest rate of 12% per annum on 07.09.2015 through Bank transfer from the account of complainant i.e. account no 3048593254, Canara Bank, Najafgarh Branch Delhi and Accused assured the complainant stating that he will repay the said loan amount. Complainant further stated that accused kept on making the payment of interest amount i.e. Rs. 2,86,000/- accumulated but delayed in payment of the loan amount and on several demand of the complainant, accused handed over the cheque bearing no 476135 dated 31.10.2018 for a sum of Rs. 10,00,000/-, drawn in favour of the complainant. The cheque is drawn on Yes bank Ltd, Ground Floor, Khasara No 500, village Khandsa, Opp Jhuda Sec-10A Market, Near Hero Honda Chowk, Gurgaon branch (Cheques in question) and further assured the complainant that the same shall be honoured on presentation.When complainant presented the above- mentioned cheques in question the same were returned unpaid by the CC no :1093/2019 Mukesh Gupta Vs. Praveen Prakash Singhal 2/19 banker of the complainant vide cheque returning memos dated 03.11.2018, with the remarks "Funds Insufficient"
3. Thereafter, the complainant served a legal demand notice upon the accused through his counsel on 26.11.2018 vide speed post receipt and tracking report and said notice was delivered to the accused on 28.11.2018. The accused on the receipt of the said legal notice also sent a reply on 06.12.2018.
4. In order to prove his case, complainant in the pre-summoning evidence, examined himself as CW1 by way of affidavit Ex. CW1/1 and relied upon following documents which are as follows:
1) Ex. CW1/1 is the bank statement.
2) Ex. CW1/2 is the cheque in question.
3) Ex. CW1/3 is the cheque returning memo.
4) Ex. CW1/4 is the legal notice.
5) Ex. CW1/5 is the speed post receipt.
6) Ex. CW1/6 is the DTDC receipt.
7) Ex. CW1/7(colly) is the tracking report
5. Upon appreciation of pre-summoning evidence and upon finding prima facie case against the accused, pre-summoning evidence was concluded on 09.01.2019 and summons were issued to accused on the very same day.
6. Thereafter Notice u/s 251 Cr.PC was framed against the accused on accused on 05.04.2019 to which he pleaded not guilty and claimed trial. Accused stated that he gave three cheques to the complainant including thecheque in question for opening of a DE-MAT account for share trading. Accused denied taking any loan from the complainant. Accused further denied any liability towards the complainant. Accused admitted his signature on the cheques but denied filling the other particulars on the cheques.
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7. Thereafter, on 11.07.2019 an application under section 143 (A) The Negotiable Instruments Act, 1881(hereinafter referred to as the NI Act for the purpose of brevity) was filed on behalf of the complainant, which was dismissed vide order dated 27.01.2020.
8. An application u/s. 145(2) N.I.Act was moved on behalf of the accused.
His right to cross-examine the complainant was closed on 28.06.2022 and thereafter, matter was listed for recording of statement u/s 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.PC for the purpose of brevity).
9. Statement of accused u/s 313 Cr.PC was recorded on 03.08.2022 wherein all the incriminating circumstances along with all the exhibited documents were put to the accused to which accused stated that he had never taken any loan from the complainant and handed over the cheque in question in a blank signed manner to the complainant for opening of DeMat Account for share trading. Accused denied receiving any amount in his bank account from the complainant and further denied making any payment of Rs. 2,86,000/- to the complainant. Accused further admitted his signature on the cheques in question but denied filling in the particulars on the cheque. Accused admitted receiving legal demand notice as sent by the complainant and he also filed reply of the legal demand notice.
10. Thereafter, the matter was listed for Defence Evidence and accused examined Neelam Pandey, Assistant Manager, Central Bank of India as DW-1 and Sandeep kumar, VAT Department as DW-2 on 06.01.2023.Thereafter, on 17.02.2023, DE was closed vide separate statement of Counsel for the accused and matter was fixed for final arguments.
11. Final arguments were concluded and record of the case and evidence of both the parties was thoroughly perused.
12. In the final arguments, the counsel for complainant submitted that complainant has been able to prove all the ingredients u/s 138 NI Act which stood corroborated by the documentary evidence led in the CC no :1093/2019 Mukesh Gupta Vs. Praveen Prakash Singhal 4/19 evidence. The counsel for complainant further submitted that accused has not brought any defence and has neither rebutted the presumption arising in favour of the complainant in terms of Section 118 & 139 of NI Act in as much as testimony of complainant has remained uncontroverted in material particulars.
On the other hand, counsel for accused stated that there were many contradictions in the evidence of the complainant and as such complainant has not been able to prove any liability of the accused.
13. In the final arguments, the counsel for complainant submitted that complainant has been able to prove all the ingredients u/s 138 NI Act which stood corroborated by the documentary evidence led in the evidence. The counsel for complainant further submitted that accused has not brought any defence and has neither rebutted the presumption arising in favour of the complainant in terms of Section 118 & 139 of NI Act in as much as testimony of CW1 has remained uncontroverted in material particulars.
14. On the other hand, counsel for accused stated that there were many contradictions in the evidence of the complainant and as such complainant has not been able to prove any liability of the accused. Final arguments were concluded and record of the case and evidence of both the parties were thoroughly perused.
15. Before proceedings to the merits of the case, it is important to lay down the basic provision of Section 138 of NI Act,1881. In order to ascertain whether accused has committed offence u/s 138 NI Act the following ingredients have to be proved which are as follows:
A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability;
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cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier;
That cheque has been 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;
The payee or the holder in due course of the cheque has made a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and 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.
16. It becomes imperative to mention that Section 139 of NI Act provides a statutory presumption in favour of the drawee that the cheque was issued to him in discharge of a debt or other liability of a legally enforceable nature. Also, the said provision must be read along with Section 118 of NI Act which states that every negotiable instrument is presumed to have been drawn and accepted for consideration. That said, what follows is that trial under section 138 NI Act is structured on the premise of the reverse onus of proof theory since the offence is a document based technical one. The journey of evidence begins not from the home of the prosecution story but from the point of the defence. The presumptions carved out in favour of the complainant are those of law and not those of facts.
17. In this regard, reliance can be placed on K. N. Beena v.
Muniyappan (AIR 2001 SC 2895), it was observed as follows: -
"Thus, in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. This Court in the case of Hiten P. Dalal vs. Bratindranath Banerjee reported in (2001) 6 SCC 16 has also taken an identical view."
CC no :1093/2019 Mukesh Gupta Vs. Praveen Prakash Singhal 6/19 The Hon'ble Supreme Court, in the case of Hiten P. Dalal vs. Bratindranath Banerjee (AIR 2001 SC 3897), observed as follows:
"Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheque for the amounts for which the cheque are drawn, as noted in State of Madras vs. A. Vaidyanatha Iyer, (AIR 1958 SC 61), it is obligatory 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)."
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, the presumption envisaged in Section 118 of the NI 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."
18. Further, it is a settled position that when an accused has to rebut the presumption under Section 139 NI Act, the standard of proof for doing so is that of "preponderance of probabilities". As held in Rangappa vs. Srimohan [(2010) 11 SCC 441], the Hon'ble Supreme Court has observed:
"Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of preponderance of probabilities. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail.
As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
Thus, as laid down in catena of decisions it is an established law that onus lies upon the accused to rebut the presumption and to establish that cheque in question was not given in respect of any debt or CC no :1093/2019 Mukesh Gupta Vs. Praveen Prakash Singhal 7/19 liability, with the standard of proof being preponderance of probability. Therefore, it becomes critical to examine whether the explanation of the accused coupled with the evidence on record is sufficient to dislodge the presumption envisaged by Section 118 & 139 of NI Act.
Appreciation of Evidence and finding:
19. In the present case, Complainant has relied upon his Evidence by way of Affidavit which is Ex. CW1/9 and relied upon following documents which are as follows: 1) Ex. CW1/1 is the bank statement, 2) Ex. CW1/2 is the cheque in question, 3) Ex. CW1/3 is the cheque returning memo, 4) Ex.
CW1/4 is the legal notice, 5) Ex. CW1/5 is the speed post receipt, 6) Ex. CW1/6 is the DTDC receipt, 7) Ex. CW1/7(colly) is the tracking report, 8) Ex. CW1/8 is the Complaint.
Further, the accused has admitted his signatures on the cheque in question in his statement u/s 251 of Cr.P.C and he has also admitted the service of the legal notice.
20. In this regard the following judgments can be relied upon:
In the case of M/S Kalamani Tex vs P. Balasubramanian Criminal Appeal No. 123 of 2021, the Hon'ble Supreme Court has held: The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then the 'reverse onus' clause become operative.
In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. In view of the above judgment, once the accused has admitted his signatures on the cheque in question in the present case, presumption u/s 139 of NI Act is drawn in favour of the complainant.
21. Accordingly, this court raises presumption under section 118(a) r/w section 139 of NI Act that the cheque in question was issued by the CC no :1093/2019 Mukesh Gupta Vs. Praveen Prakash Singhal 8/19 accused to the complainant in discharge of legally enforceable debt or liability. Now, it is on the accused to raise a probable defence in order to prove his case on the basis of preponderance of probabilities.
In the case of Bharat Barrel & Drum Mfg. Co. v. Amin Chand Pyarelal, (1999) 3 SCC 35, it was held: "12. (...) the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) Negotiable Instruments Act, 1881 would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non- existence of a consideration by raising a probable defence. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff". (Emphasis supplied).
It was held by the Hon'ble Supreme Court in Rangappa vs. Srimohan [(2010) 11 SCC 441], the Hon'ble Supreme Court has observed:"Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of preponderance of probabilities. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
Thus, as laid down in catena of decisions it is an established CC no :1093/2019 Mukesh Gupta Vs. Praveen Prakash Singhal 9/19 law that onus lies upon the accused to rebut the presumption and to establish that cheque in question was not given in respect of any debt or liability, with the standard of proof being preponderance of probability. Therefore, it becomes critical to examine whether the explanation of the accused coupled with the evidence on record is sufficient to dislodge the presumption envisaged by Section 118 & 139 of NI Act. Being cumulative, it goes without saying that it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence u/s 138 NI Act. This criminal liability can be attached by proving each of the elements of the section under which liability is sought to be enforced.
I shall now go on to appreciate the evidence, documentary or oral, in the light of how compellingly it satisfies each of such ingredient, if it all.
22. In the present case, it is pertinent to note that the accused, in his notice of accusation under section 251 C.r.p.c has admitted that cheque in question bears his signature. Further, the cheque has been drawn on the account of the Accused. This leads to drawing of an inference u/s 139 Negotiable Instruments Act 1881 read with Section 118 of the Negotiable Instruments Act 1881, that the cheque was issued in discharge of a legally recoverable debt or other liability.
23. To rebut the presumptions raised in favour of complainant, the defences taken by the accused are elaborately discussed hereunder:
The primary defence that the accused has taken is that there is no CC no :1093/2019 Mukesh Gupta Vs. Praveen Prakash Singhal 10/19 legally enforceable liability in favour of the complainant.
a. The Defence taken by accused in Notice: Accused in his statement/notice U/s 251 Cr.P.C. framed on 05.04.2019 in response to question no. 2 stated that "I did not take any loan from the Complainant as alleged".
b. Further in his statement under section 313 Cr.P.C. read with section 281 Cr.P.C. Accused took the same defence and while answering question no. 3 put to him, he stated that "he never received any amount from the complainant in his bank account. He further stated that he never took any loan from the complainant''. c. To prove the fact that the complainant has not transferred the loan amount into the bank account of accused, accused has cross examined CW1 i.e. the complainant and by leading defence evidence by calling DW1 and DW2.
24. Careful perusal of the cross examination of the CW1 (complainant) and the complaint reveals the following facts:
a. Complainant in his complaint submitted that the amount of Rs. 10 Lacs was directly sent through RTGS on 07.09.2015 through Bank transfer to the account of banker of the accused. While in the cross examination of the complainant he deposed 'I had transferred a sum of Rs 10 Lacs directly into the account of the accused through RTGS on 07.09.2015.
b. In the cross examination of CW1, a suggestion was put to the complainant that he has never transferred any amount of Rs. 10 Lacs directly into the account of accused person to which the Complainant CC no :1093/2019 Mukesh Gupta Vs. Praveen Prakash Singhal 11/19 stated voluntarily 'On my transfer of the said amount into the account of accused, the accused has also paid me interest regularly through NEFT into my bank account.' c. Perusal of the bank statement filed by the complainant which is Exhibit. CW1/1 reveals that the amount was transferred to Vinayak Enterprises and the payment of interest was also received by the complainant from Vinayak Enterprises.
d. The Complainant has nowhere stated that Accused is proprietor of Vinayak Enterprises or has any concern with Vinayak Enterprises. He merely states that he has transferred the amount of Rs. 10 lacs into the account of the Accused.
e. Complainant further in his cross examination submitted that he had not executed any written agreement to record the fact of transfer of Rs. 10 lacs by him with the accused person.
f. Complainant submitted that on one occasion, accused person had transferred a sum of Rs. 24,000 for the purpose of payment of interest from his personal bank account by the name of Praveen Singhal and on receiving the said amount the complainant returned the said amount by transferring it back into the account of Praveen Singhal.
g. Thereafter, in his cross examination, a suggestion was put to the complainant that accused had made the payment of above stated amount of Rs 24,000 as a payment of interest, however, the same was regarding some other business transaction to which the CC no :1093/2019 Mukesh Gupta Vs. Praveen Prakash Singhal 12/19 complainant replied that he had asked the accused to pay interest from the account maintained by the name of Vinayak Enterprises and not from his personal bank account.
Complainant failed to bring any cogent evidence to establish a connection between the accused and Vinayak Enterprises.
25. Further, the accused has corroborated the above said facts by leading defence evidence by calling DW1- Neelam Pandey, Assistant Manager, Central Bank of India, C53, and Vihar, Delhi-92 and DW2- Sandeep Kumar, Junior Assistant, VAT department, Trade and taxes, IP, Estate, Vyapar bhavan, Delhi.
The witness brought on record Ex.DW-1/1 (colly) to DW-1/3 (colly) I.e the application for account opening form as submitted by Vinayak Enterprises, statement of account by Vinayak Enterprises with the I.D. of Aatish Singhal and a letter issued by Aatish Singhal for Vinayak Enterprises for closing the account. In cross examination, the said witness deposed that Ex.DW-1/1 the bank account in the name of Vinayak Enterprises was opened after the Proprietor of Vinayak Enterprises Aatish Singhal with his election I.D. After careful scrutiny of the documents placed on record, it can be safely said that the loan amount has been transferred by the complainant to the bank account of Vinayak enterprises and the repayment of the loan amount has also been done from the account of Vinayak Enterprises. The onus shifted on the complainant to prove that Vinayak Enterprises belongs to the accused person. And even if for the sake of arguments, we consider that Vinayak Enterprises is maintained by the accused person or that there is some CC no :1093/2019 Mukesh Gupta Vs. Praveen Prakash Singhal 13/19 nexus with the accused, this will not make the accused liable as Vinayak Enterprises being a proprietorship firm will not fall under purview of section 141 NI act.
It is pertinent to mention here the position laid down in M M Lal vs State Nct of Delhi & Anr. on 14 September 2012 wherein, it was held that in a proprietorship form, only proprietor thereof can be held liable, and no other person, other than proprietor can be held liable for the liability of proprietorship form. The relevant paras of the judgement are as follows:
5. It is well settled that a sole proprietorship firm has no separate legal identity and in fact is a business name of the sole proprietor.
Thus, any reference to sole proprietorship firm means and includes sole proprietor thereof and vice versa. Sole proprietorship firm would not fall within the ambit and scope of Section 141 of the Act, which envisages that if the person committing an offence under Section 138 is a company, every person who, at the time of offence was committed, was in-charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Company includes a partnership firm and any other association of individuals. The sole proprietorship firm would not fall within the meaning of partnership firm or association of individual. Vicarious liability cannot be fastened on the employees of a sole partnership firm, by taking aid of Section 141 of the Act, inasmuch as, no evidence has been led to show that the business was run by the respondent no.2.
7. Accordingly, I do not find any perversity in the view taken by trial court that the cheque having been issued from the account maintained by M/s. Tina Toni Creations of Shri Manmohan Dhawan respondent no. 2, namely, Gopal could not have been prosecuted and punished.
In the present matter, Complainant in his final arguments also CC no :1093/2019 Mukesh Gupta Vs. Praveen Prakash Singhal 14/19 contended that the Loan amount of Rs 10 lacs advanced by him was transferred into the account of Vinayak Enterprises owned by the son of the accused and therefore the complainant did not make the Vinayak Enterprises as party in array of parties because that fact was not known to the complainant at the time of filing of the present complaint and at the time of examination of the complainant.
At this stage it is relevant to cite the judgment of The High Court Of Delhi at New Delhi Vikal Business Corporation vs Bishan Das & Anr on 12 March, 2013 wherein it was held that:- Accused cannot be held liable towards other liability or debts unless complainant mentions in the complaint that the said cheque was issued by the accused for discharge of other liability. Such case needs to be set up by the complainant and his complaint the relevant paras of the said judgement are as follows:
19. In view of the explicit admission of CW1 that the impugned cheque was not issued by accused for discharge of the liability of his proprietorship firm M/s Apex Printers (the accused firm) but for discharge of liability of another firm i.e. M/s Apex Arts; in absolute contradiction to the assertions in the complaint and affidavit, the dual presumptions under Section 139 of the Act stand rebutted.
Moreso, the same consequence also follows because of the failure of complainant to seek relief under Section 138 of the Act against the accused for discharge not of his own liability for M/s Apex Printers but for M/s Apex Arts i.e. Issuance of cheque for discharge of 'other liability' permitted under the Act.
12. In the present case, I find that ... there is no mention in the complaint as to when the amounts were or amount was paid, what was the rate of interest, what was the extent of the goods which were supplied and adjusted against the complainant. ... All these details are conspicuously absent. The petitioner has been convicted and sentenced on the vague and bald allegation that cheque of Rs. CC no :1093/2019 Mukesh Gupta Vs. Praveen Prakash Singhal 15/19 3,15,000/had been issued by the petitioner in discharge of liabilities of repayment of amounts taken by him. This is the only statement contained in the complaint and no further details are forthcoming even in the evidence led by complainant.
21. In the opinion of the court, the aforesaid discussion goes on to establish that accused has rebutted the dual presumptions of law raised against him by the court. At this stage, the burden of proof again shifts to the complainant. Hon'ble Supreme Court in case titled M.S. Narayana Menon (Supra) held that once the accused is found to discharge his initial burden, it shifts to the complainant. The complainant has failed to establish on record that the impugned cheque was issued by accused to discharge any legally enforceable liability of M/s Apex Printers and Stationers on whose account the impugned cheque is drawn. The complainant has also failed to produce any bill/invoice raised either against M/s Apex Printers or M/s Apex Arts which could establish the liquidated liability of the accused. Thus, the case of the complainant suffers from the basic infirmities which form the very basis of an offence under Section 138 of the Act. Consequently, ingredient no. 1 and 2 stand decided against the complainant and in favour of accused.
6. The Petitioner was completely silent that the cheque was towards the liability of M/s. Apex Art and that Bishan Das was the proprietor or partner of the said M/s. Apex Art. Bishan Das was prosecuted in the above mentioned four complaint cases as proprietor of M/s.Apex Printers and Stationers. Thus, it cannot be said that the cheques were issued by the Respondents towards legally enforceable debt or other liability.
7. It is urged by the learned counsel for the Petitioner that the Respondent No.1 has not entered the witness box to deny his liability. It is the cardinal principle of criminal jurisprudence that to prove his defence, an accused need not produce any defence evidence. He can very much prove his defence by taking aid of the CC no :1093/2019 Mukesh Gupta Vs. Praveen Prakash Singhal 16/19 evidence produced by the prosecution including the material elicited in cross-examination of the witnesses. That has exactly been done in the instant case as the Petitioner has admitted that the cheque was issued not towards liability of M/s.Apex Printers and Stationers, that is, Respondent No.2 but towards liability of M/s. Apex Art. These facts having not been pleaded by the Petitioner even in the complaint and as it is admitted that there was no liability of M/s.Apex Printers and Stationers and Respondent No.1 was also prosecuted as the proprietor of M/s.Apex Printers and Stationers, the conclusion reached by the learned MM that the Respondents have rebutted the presumption that the cheque was issued towards any legally debt or other liability cannot be faulted.
26. Therefore this court is of the opinion that the Accused has successfully rebutted the presumption through the deposition of DW- 1 examination in chief and the documents furnished by DW-1, which proved that the said loan amount was given to Vinayak Enterprises and the Accused is not the proprietor of Vinayak Enterprises. Accused also proved through the testimony of bank witness DW-1 and Exhibit DW-1/1 DW-1/3 that there is no legally recoverable debt or liability against the accused as alleged by the Complainant.
27. The complainant has failed to examine any other witness and lead any documentary evidence to prove the loan transaction and aforesaid discussion casts doubt over the complainant's version that he had given loan of Rs. 10 lakhs to the accused.
It is apparent that the case of the complainant that the cheque in question was issued to him by the accused for payment of loan taken by him is unworthy of credit and fails to inspire the confidence of this court.
28. In the final arguments, the counsel for complainant submitted that CC no :1093/2019 Mukesh Gupta Vs. Praveen Prakash Singhal 17/19 complainant has been able to prove all the ingredients u/s 138 NI Act which stood corroborated by the documentary evidence led in the evidence. The counsel for complainant further submitted that accused has failed to rebut the presumption arising in favour of the complainant in terms of Section 118 & 139 of NI Act in as much as testimony of complainant has remained uncontroverted in material particulars.
On the other hand, counsel for accused stated that there were many contradictions in the evidence of the complainant and as such complainant has not been able to prove any liability of the accused.
29. The Accused has managed to rebut the presumption raised against him by showing that the case of the Complainant itself, is improbable, when looked at from the standard of a reasonable man and has, therefore, established his defence on preponderance of probabilities
30. The judgments relied on by the accused have been read carefully by this Court and it emerges that point of law/fact which has been laid down/discussed by the Hon'ble Courts has already been discussed above in detail and to that extent, they have considered and applied. This Court does not wish to multiply authorities by discussing each of them individually.
31. Now as far as the other ingredients of Section 138 NI act are concerned, I do not deem it necessary to delve into it in as much as the complainant has failed to prove an essential ingredient as to the existence of legally enforceable debt. Clearly, when there is no legally enforceable debt or liability no offence can be said to have been committed in terms of Section 138 of the Act.
32. Complainant's reliance on K. N. Beena v. Muniyappan (AIR 2001 CC no :1093/2019 Mukesh Gupta Vs. Praveen Prakash Singhal 18/19 SC 2895) and Hiten P. Dalal vs. Bratindranath Banerjee (AIR 2001 SC 3897) (supra) will not aid him as presumption has already been raised against the accused and accused has managed to rebut the same by way of preponderance of probabilities.
In sum and substance, the accused has been able to successfully punch holes in the case of the complainant and he has been able to raise a reasonable and probable defence.
The Hon'ble Apex Court in Basalingappa v. Mudibasappa, AIR 2019 SC 1983, noted that "It is amply clear that the accused does not need to discharge his or her liability beyond the shadow of reasonable doubt. He just needs to create holes in the case set out by the complainant. Accused can say that the version brought forth by the complainant is inherently unbelievable and therefore the prosecution cannot stand. In this situation the accused has nothing to do except to point inherent inconsistency in the version of the complainant or the accused can give his version of the story and say that on the basis of his version the story of the complainant cannot be believed."
Therefore, in view of the above legal and factual position, this Court is of the view that accused has created sufficient cavities in the version of the complainant, and it was upon the complainant to prove his case beyond reasonable doubt.
33. Consequently, this court finds the accused Praveen Prakash Singhal, not guilty for the offence under Section 138, Negotiable Instruments Act, 1881 and acquits him accordingly.
Announced in the open court on Divya Singh
22.08.2023 MM-NI Act -02, SW/Delhi
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