Delhi District Court
Hira Lal Yadav vs Ram Rup 1/17 on 6 June, 2023
IN THE COURT OF SH. ABHINAV AHLAWAT
METROPOLITAN MAGISTRATE, DWARKA COURTS, NEW
DELHI
Criminal Complaint No.:26181/2019
CNR No DLSW020362542019
Hira Lal Yadav ......... Complainant
Versus
Ram Rup ......... Accused
1. Name & address of the complainant: Hira Lal Yadav,
S/o Sh. Murli Yadav,
R/o F-114, Vishwas
Park, Uttam Nagar,
New Delhi-110059
2. Name & address of the accused : Ram Rup
s/o Sh. Santu, R/o
CJ-158A, Ground Floor,
Rajiv Gandhi Camp,
Naraina Vihar, South
West, New Delhi-
110028
3. Offence complained of : U/S 138, The
Negotiable Instruments
Act,1881.
4. Date of Institution of case : 15.07.2019
5. Plea of accused : Pleaded not guilty.
6. Final order : Convicted
7. Date of decision of the case : 06.06.2023
Digitally signed
by Abhinav
Abhinav Ahlawat
Date:
Ahlawat 2023.06.06
04:51:18
+0530
CC no.26181/2019
Hira Lal Yadav vs Ram Rup 1/17
JUDGMENT
1. Vide this judgment, I shall dispose of the aforementioned complaint case as filed by the complainant, Hira Lal Yadav (hereinafter referred to as the complainant) against accused, Ram Rup, (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 is that in the month of April 2018, the accused approached complainant for a friendly loan of Rs. 50,000/- to meet some of his domestic requirements. In view of the good relations with the accused, complainant gave an amount of Rs. 50,000/- in cash on 17.04.2018 to the accused which was to be returned by the accused within 6 months and this regard an agreement was also got executed and accused issued one post dated cheque (cheque in question) bearing no. 870814 drawn on SBI, Naraina, Delhi. Accused assured the complainant that he will pay the entire loan amount within the agreed time of six months, if not then complainant can present the cheque after the expiry of 6 months.
3. That accused undertook to repay the said amount within a period of six month year but despite the completion of said six month, accused failed to return the amount to the complainant. That complainant requested several times to accused to return his money but accused refused on one or other pretext.
4. Based upon the aforesaid cheque of the accused, when the complainant presented the cheque to his banker i.e., Bank of Maharashtra, Sec-11 Dwarka, Delhi and the same were returned unpaid by the banker of the complainant vide cheque returning CC no.26181/2019 Hira Lal Yadav vs Ram Rup Abhinav by Digitally signed Abhinav 2/17 Ahlawat Ahlawat Date: 2023.06.06 04:51:24 +0530 memos dated 06.06.2019 both with the remarks "Funds Insufficient".
5. Thereafter, finding no other way out, the complainant served a Legal Demand Notice dated 15.06.2019 upon the accused through speed post asking accused to repay the loan amount within 15 days from the receipt of the notice. Thereafter, the complainant filed the present complaint case with the submission that accused person be summoned, tried and punished according to law.
6. In order to prove his case, complainant in the pre-summoning evidence, examined himself as CW1 by way of affidavit Ex. CW1/A and relied upon following documents which are as follows:
a) Ex. CW1/A is the loan agreement.
b) Ex. CW1/B is the cheque in question.
c) Ex. CW1/C is the cheque returning memo.
d) Ex. CW1/D is the legal notice .
e) Ex. CW1/E is the postal receipt.
f) Ex. CW1/F is the tracking report.
g) Ex. CW1/K is the complaint.
7. Upon appreciation of pre-summoning evidence and upon finding prima facie case against the accused, the accused was summoned for an offence punishable under section 138 NI Act. Thereafter Notice u/s 251 Cr. PC was framed against the accused on 26.07.2022 to which he pleaded not guilty and claimed trial. Accused submitted he never issued the cheque in favour of the complainant and that he does not know how the cheque in question came into the possession of the complainant. Accused denied being known to the accused and even stated that he never met the complainant and further denied any liability.
CC no.26181/2019Abhinav Digitally signed by Abhinav Ahlawat Hira Lal Yadav vs Ram Rup Ahlawat 04:51:30 +0530 Date: 2023.06.06 3/17 Accused admitted his signature on the cheque in question and also admitted receiving the legal demand notice from the complainant.
8. Thereafter, accused orally prayed for allowing the application u/s 145(2) NI Act and the same was allowed on 26.07.2022. Thereafter, complainant was cross examined by counsel for accused on 24.11.2022. No other witnesses were examined by the complainant. Thereafter the complainant evidence was closed on same date and matter was listed for statement of accused u/s 313 Cr.PC.
9. Statement of accused was recorded u/s 313 Cr. PC on 14.12.2022, wherein all the incriminating circumstances which were against the accused were put to him. Accused submitted that he had never issued the cheque in question or any PDC in favour of the complainant. Accused further denied his signature on agreement Ex.CW1/A and any liability towards the complainant. Accused stated that he does not know as to how complainant came into the possession of his cheque and that complainant had misused his cheque.
Accused further admitted his signature on the cheque in question but denied receiving any legal demand notice form the complainant.
10. Thereafter matter was listed for DE. In DE accused examined himself as DW1 and DE stands closed on 20.03.2023 and thereafter, matter is listed for final arguments.
11. The submissions made by counsel for complainant and accused were heard and the record of the case thoroughly perused.
12. Before proceedings to the merits of the case, it is important to lay CC no.26181/2019 Digitally signed Hira Lal Yadav vs Ram Rup Abhinav by Abhinav Ahlawat 4/17 Ahlawat 04:51:37 Date: 2023.06.06 +0530 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) 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;
b) 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;
c) 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;
d) 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
e) 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.
13. 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 CC no.26181/2019 Abhinav Digitally signed by Abhinav Ahlawat Hira Lal Yadav vs Ram Rup Ahlawat 04:51:44 +0530 Date: 2023.06.06 5/17 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.
14. 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."
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 cheques for the amounts for which the cheques 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."
CC no.26181/2019 Digitally signed
Abhinav by Abhinav
Hira Lal Yadav vs Ram Rup Ahlawat
Ahlawat Date: 2023.06.06
6/17
04:51:51 +0530
15. 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."
16. 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 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.
17. 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.
CC no.26181/2019Hira Lal Yadav vs Ram Rup Abhinav Digitally signed by Abhinav Ahlawat 7/17 Ahlawat 04:52:12 +0530 Date: 2023.06.06 Appreciation of Evidence and finding:
18. The primary defence that the accused has taken is that he has never taken any loan from the complainant and that he does not even know the complainant and in view of his eye operation he was unable to see the documents he was signing. Accused specifically stated that he does not know how complainant procured his cheque. Let us examine the potency of the defences taken by the accused one at a time.
In the facts of the present case, the signature on the cheque in question have not been denied by accused and accordingly, this court raises presumption under section 118(a) r/w section 139 of NI Act that the cheque in question was issued by accused to the complainant in discharge of legally enforceable debt or liability and it is now on the accused to raise a probable defence and to prove his case on the basis of preponderance of probabilities.
19. The first defence taken by the accused is that he has not taken any loan amount from the complainant. Furthermore, counsel for accused stated that the agreement as relied upon by the complainant is not notarised and for the same reason it cannot be relied upon.
Accused throughout the trial has maintained his defence that he had not taken any loan from the complainant and that he owed nothing towards the complainant.
20. Now, it is the specific version of the complainant that in view of the good relations with the accused he paid the requested amount of Rs 50,000/- to the accused in cash upon the assurance of the accused that he would repay the loan within six months and in that regard an agreement was also executed which was signed by the accused. The said agreement is recorded on e-Stamp dated 17.04.2018 which is tendered by the complainant as Ex.CW1/A. Perusal of the same CC no.26181/2019 Hira Lal Yadav vs Ram Rup Abhinav Digitally signed by Abhinav Ahlawat 8/17 Ahlawat 04:52:18 +0530 Date: 2023.06.06 reveals that, the agreement which is more in the form of an undertaking mentions/records the term wherein, accused had accepted receiving an amount of Rs 50,000/- from complainant and that he would repay the same within a period of six months and that a cheque bearing no. 870814 was given by the accused to the complainant. The same bears the signature or the name of the accused and complainant. Apparently, the cheque in question is the same cheque was mentioned in the agreement Ex.CW1/A. Before, deciding the said contention of the counsel for accused, it would be relevant to briefly discuss the concept of notarisation. Section 8 of the Notaries Act, 1952 provides for the function of notaries. Section 8 (a) provides for a notary to do all the following function, which is "verify, authenticate, certify or attest the execution of any instrument". Generally speaking, a notary is licensed to approve other's signatures. Also, there is no obligation for a contract to be notarized for it to be enforceable. Notary publics identifies the person who is signing the document and attest to the person's signature. A notarized document proves that a person who objects to the agreement was someone who signed it. This is particular for written contracts, so a notarized document can be relevant in documents that have to be written. Having a notarized document is not necessary, but it is helpful if your contract is ever taken to court. Does a contract have to be notarized to be legal? Typically, no and the there is no obligation for a contract/agreement for it to be notarized for it to be enforceable.
21. In the present case, accused during his cross examination as DW1 refused, upon being shown the agreement Ex.CW1/A, the same to be bearing his signature but only stated that his name was written on the agreement. Here, it is pertinent to highlight that the cheque in CC no.26181/2019 Hira Lal Yadav vs Ram Rup Abhinav Digitally signed by Abhinav Ahlawat 9/17 Ahlawat 04:52:29 +0530 Date: 2023.06.06 question was dishonoured for the reason funds insufficient and not for the reason that signature differed.
Further, no efforts have been taken by the accused to seek the opinion of the expert with respect to the signature on the agreement thereby it becomes an important factor to ascertain the truth and see whether the accused is merely refusing to admit his signature.
22. Also, it is a settled law that whether the court should do the comparison itself or appoint an expert is a matter of discretion. Thereby exercising power under section 73 Indian Evidence Act1, on comparison of signature of accused as present on both the agreement Ex.CW1/A and the cheque in question Ex.CW1/B, it appears to be the of the same persons.
Further, accused could have sought the forensic examination of this document to lend credence to his version, mere bald denial of the signature on the agreement cannot be considered to be the proof. The present case is not one such case where the complainant has chosen not to adduce any evidence. Complainant has relied upon the agreement stating to be signed by the accused persons. Accused, on the contrary, except making a bald denial of the averments, had not stated anything else. Therefore, there is no merit in the defence of the accused that he has not taken any loan from the complainant as accused has failed to disprove the existence of the loan agreement.
1 Section 73. Comparison of signature, writing or seal with others admitted or proved.
In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
1[This section applies also, with any necessary modifications, to finger impressions.
CC no.26181/2019Hira Lal Yadav vs Ram Rup Abhinav Digitally signed by Abhinav Ahlawat 10/17 Ahlawat 04:52:40 +0530 Date: 2023.06.06 There is no reason to doubt the genuineness or authenticity of the agreement.
23. Second line of defence taken by the accused is that he does not know when he had signed the cheque in question and how the complainant procured his cheque. Accused had stated that he had been suffering from some eye problem and he was unable to see the documents he was signing.
Accused has failed to explain how and in what circumstances the cheque in question came into the hands of the complainant by producing cogent and convincible evidence. Again, accused merely showed ignorance regarding the circumstances under which the cheque came into the possession of the complainant. Accused in his cross examination as DW1 stated that he does not know as to how his signed cheque came into the possession of the complainant.
24. On this point, it would be relevant to see whether accused received the legal demand notice as sent by the complainant upon the dishonourment of the cheque in question. Accused accepted receiving the same when Notice U/s 251 CrPC was framed but denied receiving the legal demand notice when his statement u/s 313 CrPC was recorded. However, upon perusing the notice u/s 251 CrPC and when accused deposed as DW1 as well as when he furnished his bail bond, all these documents bear the same address as mentioned upon the legal demand notice Ex.CW1/D send by the complainant. Therefore, a presumption of deemed service is drawn under section 27 of General Clauses Act which provides that where notice is sent to the correct address, the same shall be presumed to have been duly served.
In M/s Darbar Exports and Ors. Vs Bank of India, 2003 (2), SCC (NI) 132 (Delhi), the court held that, "a presumption of CC no.26181/2019 Hira Lal Yadav vs Ram Rup Abhinav Digitally signed by Abhinav Ahlawat 11/17 Date: 2023.06.06 Ahlawat 04:52:47 +0530 service of notice is to be drawn where the notice is sent through registered post as well as UPC on correct address.
25. Also, in CC Alavi Haji Vs. Palapatti Mohammad (Crl.) 767/2007 the Hon'ble Supreme Court of India held that "where the notice is sent by Registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of clause (b) of proviso to section 138 of NI Act stands complied with.
Further, the above judgment also stated that any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint u/s 138 NI Act make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons.
26. In the present case, the accused has failed to adduce any evidence to rebut the presumption of due service. As such, the legal notice stood served upon the accused, thus despite accused refusing to accept that no legal notice was served upon him. Accused in his defence has not led any material to show that legal demand notice was not received by him, thereby mere statement of accused that he did not receive any legal notice from complainant cannot be accepted and thereby this contention of accused of not receiving legal demand notice is rejected.
Once it is established that legal demand notice was served upon the accused and despite receiving the same, accused waited till the institution of the present case by the complainant and summons to be issued from the Court shows that he was well aware about the presentment of the cheque in question and even after receiving legal demand notice accused never bothered to file a reply to the same. As CC no.26181/2019 Hira Lal Yadav vs Ram Rup Abhinav Digitally 12/17 signed by Abhinav Ahlawat Ahlawat 04:52:54 +0530 Date: 2023.06.06 a prudent person, accused could have replied to the legal notice challenging the version of the complainant and filed appropriate complaint to the concerned authorities regarding the mis-use of his cheque by the complainant. Accused has not whispered anything about the recourse taken by him for the alleged misuse of his cheque by the complainant.
27. Also, the fact that cheque in question got dishonored for the reason funds insufficient as evident from cheque return memo Ex CW1/C, after which the complainant instituted the present case showcases that the accused after the receipt of the legal demand notice or even the summons of the court never took any step to address the fact that cheque in question were allegedly misused by the complainant. Accused till date has not shown as to the steps taken by him to address the fact as to how his cheque came into the possession of the complainant.
An adverse inference can safely be drawn against the accused who has failed to adduce any credible evidence to show that he did everything in his power and control, as a prudent person would do to ensure that cheque bearing his signature never not issued to unauthorized person. Merely stating that he does not know how his cheque came into the possession of the complainant does not help the case of the accused.
Ld counsel for accused, despite best attempts, could not elicit anything from the testimony of complainant CW1 which would have dented the case of the complainant. Accused has not been able to challenge the version of the complainant who has withstood the test of cross examination.
CC no.26181/2019Hira Lal Yadav vs Ram Rup Abhinav Digitally signed by Abhinav Ahlawat 13/17 Ahlawat 04:53:12 +0530 Date: 2023.06.06
28. It is settled law that, once accused admits the signature on impugned cheque, a statutory presumption arises in favour of the complainant u/s 139 NI Act r/w Section 118 NI Act.
Accused has been unable to rebut the presumption raised against him. No evidence, material or record has been brought by the accused to substantiate the defence taken by him.
29. In order to rebut the statutory presumption, it was burden upon the accused to prove the facts pleaded by him. No material in support of such plea having come on the record, the statutory presumption u/s 139 NI Act in the case in hand has not been rebutted.
Reliance can be taken from the decision of Hon'ble Supreme Court in the case of M/s Kumar Exports vs M/s Sharma Carpets, SLP(Crl.) 955/2007, wherein while discussing the denial of existence of legally enforceable debt in the context of Section 139 NI Act, the Hon'ble Apex Court has held that: -, "Bare denial of the consideration and existence of debt, apparently would not serve the purpose of accused and something which is probable has to be brought on the record by the accused. Something which is probable has to brought on record for getting the proof of burden shifted to complainant".
This ratio has been reiterated by the Hon'ble Supreme Court in the case of Kishan Rao vs Shankar Gouda SLP (Crl.) 10030 of 2016.
30. Further as laid down by Hon'ble Supreme Court in Rangappa v Mohan , 20110 11 SCC 441, wherein it was observed that, "In the light of these extracts, we are in agreement with the respondent- claimant that the presumption mandated by section 139 of the Act does indeed include the existence of the legally enforceable debt or liability.
CC no.26181/2019Hira Lal Yadav vs Ram Rup Abhinav Digitally 14/17 signed by Abhinav Ahlawat Ahlawat Date: 2023.06.06 04:53:29 +0530 Without placing on record any evidence to disprove that cheques were not issued in discharge of liability; the accused has failed to rebut the presumption.
31. Now that the defences taken by the accused are dealt with, let us examine the potentiality of the prosecution story. The complainant story is that accused had issued the cheque in question for discharging his liability of the loan as received from the complainant. The record complainant has brought to substantiate his point are the agreement Ex. CW/A, cheque Ex CW1/B bearing no. 870814 dated 04.06.2019and cheque return memo dated 06.06.2019 Ex.CW-1/C,, the legal demand notice dated 15.06.2019 Ex. CW1/D.
32. The accused failed to impeach the credibility of the above said docu-
ments. In fact, the accused admitted his signature on the impugned cheque voluntarily. The burden lied heavily on the accused to have probablized the factum of non-execution or non-existence of agree- ment Ex.CW1/A, however, accused failed to do so. It is not the case of the accused that the complainant obtained his signature on the cheque under duress or by exerting any pressure or undue influence.
The only defence raised by the accused is that the cheque in question along with other documents were signed by him when he was suffereing from some eye problem and that he was unable to see the documents he was signing. Again, the accused failed to bring on record any evidence to substantiate this defence as established in the preceding paragraphs.
Therefore, considering the weight of the attending circumstances viz, the consistency in the prosecution story, failure of the accused to put forth any reasonable and believable defence, admission of the accused that the signature on the cheques in question belongs to him and compelling documentary evidence CC no.26181/2019 Hira Lal Yadav vs Ram Rup Abhinav Digitally signed by Abhinav Ahlawat 15/17 Ahlawat 04:53:51 +0530 Date: 2023.06.06 placed on record the first element of Section 138 NI Act stands assembled.
33. As for the second condition qua the presentation of the cheque within three months is concerned, the same is satisfied upon the perusal of the cheque in question Ex.CW1/B dated 04.06.2019 while the return memo Ex.CW1/C dated 06.06.2019, thus, being presented within the prescribed period of limitation of three months. The defence did not adduce any evidence whatsoever to contradict the same.
34. The third condition pertains to the cheque being returned unpaid owing to their being dishonored. Bank return memo or slip is prima- facie proof of the dishonor. Section 146 of the Negotiable Instruments Act, 188, in this regard comes into play which raises a presumption that the court shall presume the fact of dishonor of the cheque in case of cheque is returned vide a return memo issued by the bank having thereon the official mark denoting that the cheque has been dishonored. Perusal of bank dishonour memo i.e., Ex CW1/C shows that cheque in question on being presented in the bank were returned dishonoured due to "Funds insufficient" on 06.06.2019. As the defence has failed to rebut the said presumption, hence the said condition is also satisfied.
35. As far as making of demand by sending a legal demand notice is concerned, the same stands served upon the accused as discussed in the preceding paragraphs, thus implying the satisfaction of the fourth condition.
36. The last condition is that accused fails to make the payment within fifteen days from the date of the receipt of the legal demand notice. In the present case, the accused has evidently failed to make the payment within the fifteen days contending that she owes no legal CC no.26181/2019 Abhinav Digitally signed by Abhinav Ahlawat Hira Lal Yadav vs Ram Rup Ahlawat 04:53:58 +0530 Date: 2023.06.06 16/17 liability to pay the amount mentioned in the cheque in question. The accused has miserably failed to prove the said assertion and thus, the last limb of what will entail the liability against the accused, is also structured.
37. Ratio: Finally, having considered the totality of the facts and the circumstances of the case, the accused has failed to rebut the presumption in favour of the complainant as spelled under section 139 NI Act. The law as laid down under section 138 NI Act, 1881 is made out against the accused. The weight of the evidence adduced by the complainant to prove his case against the accused is sufficient enough to impute criminality on the accused. Complainant has successfully proved all the essential ingredients of Section 138 of the Act. Therefore, accused is held guilty and convicted for commission of offence punishable under section 138 of the Negotiable Instrument Act, 1881.
Let the convict be heard on the quantum of sentence separately.
38. Let the copy of this judgment be given to the convict free of cost.
Digitally signed by AbhinavAbhinav Ahlawat Date: Ahlawat 2023.06.06 04:54:35 +0530 Announced in the open court on Abhinav Ahlawat 06.06.2023 MM- 09, South West District Dwarka Courts, Delhi CC no.26181/2019 Hira Lal Yadav vs Ram Rup 17/17