Delhi District Court
Nitin Gupta vs Pankaj Dayal on 9 August, 2024
IN THE COURT OF SH. AAKASH SHARMA
JUDICIAL MAGISTRATE FIRST CLASS (NI ACT)-03
SOUTH EAST, SAKET: NEW DELHI
1.Complainant case number 630771/2016
2. Name of the complainant Sh. Nitin Gupta S/o Sh. Shivraj Krishna Gupta, R/o 36 Anand Lok, Ground Floor, New Delhi-110041.
Also at: 6 Padmini Enclave, Hauz Khas, New Delhi-110016.
3. Name and address of the Sh. Pankaj Dayal accused persons S/o Sh. Santosh Dayal, R/o H.No. 3, Lane no. 4, Anupam Garden, Sainik Farm, New Delhi.
Also at: D-405 Defence Colony, New Delhi-24, Also at: A-347, Defence Colony, New Delhi-110024.
4. Offence complained of Section 138 of the Negotiable Instruments Act, 1881
5. Plea of the accused Pleaded not guilty and claimed trial
6. Final order Convicted
7. Date of institution 15.01.2016
8. Date of reserving the 03.07.2024 judgment
9. Date of pronouncement 09.08.2024
-:JUDGEMENT:-
1. The present complaint under section 138 Negotiable Instruments Act, 1881 (herein referred to as NI Act) has been filed by Sh. Nitin Gupta (hereinafter referred to as the 'complainant') against Sh. Pankaj Dayal (hereinafter 'accused').
2. Briefly stated, the case of the complainant is that AAKASH SHARMA complainant paid a sum of Rs. 1,25,00,000/- towards a short term Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.1 of33 Digitally signed by AAKASH SHARMA Date: 2024.08.09 16:18:03 +0530 loan to the accused vide RTGS on 02.09.2014 drawn on Yes Bank, South Extension, Part-II, New Delhi to meet the urgent financial need of the accused which was duly credited to the bank account of the accused. That in order to discharge his admitted liability, the accused towards the refund of the principal amount of Rs. 1,25,00,000/- issued the cheque in question to the complainant bearing no. 028198 dated 15.11.2015 for sum Rs.
1,25,00,000/- drawn on Axis Bank, Lajpat Nagar, New Delhi Branch and assured the complainant that the cheque in question shall be honoured for payment by the bank of the accused. That the cheque in question when presented on 23.11.2015 by the complainant to his bank namely Axis Bank, Khan Market, New Delhi-03 Branch was returned unpaid with the remarks "Fund Insufficient" vide return memo dated 23.11.2015. That the accused apologized to the complainant and requested the complainant to re-present the cheque once again for payment and assured the complainant that the cheque shall be honoured, and on the basis of such assurance, the complainant presented the said cheque to his other bank namely IndusInd Bank having branch at Defence Colony, New Delhi-03 for collection. However, the said cheque was again dishonoured vide return memo dated 26.11.2015 with remarks "Drawers Signature Differs". It is submitted on behalf of the complainant that the AAKASH remarks made by the IndusInd Bank i.e. bank of the complainant SHARMA were based on the basis of advise received from Axis Bank, Digitally signed Lajpat Nagar, New Delhi which is the bank of the accused and by AAKASH SHARMA the bank of the accused returned the cheque vide return memo Date:
2024.08.09 16:18:09 +0530 dated 23.11.2015 with remarks "Funds Insufficient" but subsequently, the same bank of the accused returned the said Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.2 of33 cheque on 26.11.2015 with the remarks "Drawers Signature Differs". That the accused connived with his bank officials of Axis Bank, Lajpat Nagar Branch to issue such remarks upon re- presentation of the cheque. The accused was intimated by the complainant with regard to the subsequent dishonour of cheque but accused refused to pay the amount on the cheque in question. Finding no alternative, the complainant issued legal demand notice dated 03.12.2015 through speed post and courier to the accused which was duly served upon the accused on 05.12.2015 at his address D-405, Defence Colony, New Delhi while the other premise of the accused i.e. his office address A-347, Defence AAKASH Colony, New Delhi-110024 was stated to be locked. That no SHARMA reply to the legal notice dated 03.12.2015 was given by the Digitally signed by AAKASH accused and the accused failed to pay the amount qua the cheque SHARMA Date: 2024.08.09 16:18:12 +0530 in question within the statutory period. Hence, present complaint was filed under Section 138 NI Act against the accused.
3. Vide order dated 05.05.2016, the accused was summoned in the present case by the Ld. Predecessor of this Court. Notice u/s 251 CrPC was served upon the accused on 20.09.2019, to which he pleaded not guilty and claimed trial. His plea of defence was also recorded. Thereafter, the accused was allowed to cross examine the complainant u/s 145(2) NI Act. After examining the complainant as CW-1 on 26.08.2022, 01.11.2022 and 04.11.2022, the complainant evidence was closed vide order dated 04.11.2022 and thereafter, statement of the accused u/s 313 CrPC was recorded on 25.01.2023 and the matter was fixed for DE. DW-1 was examined, cross-examined and discharged on 18.08.2023. Application under Section 315 Cr.P.C. was moved on Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.3 of33 behalf of the accused on 30.10.2023 which was allowed. Accused was not examined in DE despite several opportunities whereupon, DE was closed vide order dated 06.02.2024. Final arguments were heard and matter was reserved for judgment.
EVIDENCE:-
4. In order to support its case, the complainant had stepped into the witness box as CW-1 and tendered his evidence by way of an affidavit which is Ex.CW1/C into evidence wherein averments made in the complaint were reiterated. He also relied upon various documents such as:
AAKASH SHARMA
(a) Cheque no. 028198 dated 15.11.2015 for sum Rs.
1,25,00,000/- drawn on Axis Bank, Lajpat Nagar, New Digitally signed by AAKASH Delhi Branch as Ex.CW1/1; SHARMA Date:
(b) Cheque return memo dated 23.11.2015 qua cheque No. 2024.08.09 16:18:16 +0530 "028198" issued by Axis Bank, Khan Market Branch, New Delhi-03 as Ex.CW1/2;
(c) Cheque return memo dated 26.11.2015 qua cheque No. "028198" issued by IndusInd Bank, Greater Kailash-II, New Delhi, Branch as Ex.CW1/3;
(d) Legal demand notice dated 03.12.2015 as Ex.CW1/4;
(e) Postal receipts of India Post as Ex.CW1/4 and courier receipts as Ex.CW1/5 (Colly);
(f) Tracking reports from India post and courier delivery reports as Ex.CW1/6 (Colly);
(g) Bank account statement pertaining to the complainant for the period 02.09.2014 to 14.01.2015 qua account no.
001690700007782 Yes Bank, South Extension Branch, New Delhi as Ex.CW1/7;
Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.4 of33 Whereas on behalf of the accused, DW-1 Sh. Navin Kumar, Assistant Ahlmad in the Court of Sh. Rishabh Tanwar, MM-09, South East, Saket was examined who produced the following:-
a) Judicial file bearing CC No. 622893/2016 bearing title Nitin Gupta Vs. Krishan Kumar Singh from the Court of Sh. Rishabh Tanwar, Ld. MM-09, South East, Saket which file has been disposed off.
b) Judicial file bearing CC No. 622895/2016 bearing title Nitin Gupta Vs. Krishan Kumar Singh from the Court of Sh. Rishabh Tanwar, Ld. MM-09, South East, Saket AAKASH which file has been disposed off. SHARMA Digitally signed by AAKASH
5. Final arguments were heard at length on behalf of both the SHARMA Date: 2024.08.09 parties. 16:18:19 +0530 APPLICABLE LAW:-
6. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed.
Now, Section 138 Negotiable Instrument Act provides as under:
Section 138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.5 of33 two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless (a) the cheque has been presented to the bank within a period of six months (reduced to three months vide notification no. RBI/201112/251, DBOD AMLBCNo. 47/19.01.0062011/12,dated 04.11.2011) from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, 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 thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to AAKASH the payee or, as the case may be, to the holder in due SHARMA course of the cheque, within fifteen days of the receipt of the said notice. Explanation -- for the purposes of this section, "debt or other liability" Digitally signed means a legally enforceable debt or other liability. by AAKASH SHARMA It is well settled position of law that to constitute an Date:
offence under S.138 N.I. Act, the following 2024.08.09 ingredients are required to be fulfilled: (1) drawing 16:18:22 +0530 of the cheque by a person on an account maintained by him with a banker, for payment to another person from out of that account for discharge in whole/part any debt or liability; (2) cheque has been presented to the bank within a period of six months (now three months) from the date on which it is drawn or within the period of its validity whichever is earlier; (3) returning the cheque unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque, (4) giving notice in writing to the drawer of the cheque within 30 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount, (5) failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice.
Being cumulative, 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 under Section 138 of the N I Act.
Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.6 of33 The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption under Section 139, that the holder of cheque receiving the same of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. Analysing all the concerned provisions of law and various pronouncements in this regard, the Hon'ble Apex Court in Basalingappa v. Mudibasappa, AIR 2019 SC 1983, noted at para 23 as follows [Bharat Barrel and Drum Manufacturing Company v. Amin Chand Pyarelal, (1999) 3 SCC 35; M.S. Narayana Menon alias Mani v. State of Kerala and another, (2006) 6 SCC 39; Krishna Janardhan Bhat v.
Dattatraya G. Hegde, (2008) 4 SCC 54; Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513;
Rangappa v. Sri Mohan, (2010) 11 SCC 441
referred]: AAKASH
(i) Once the execution of cheque is admitted, Section SHARMA
139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. Digitally signed by AAKASH SHARMA
(ii) The presumption under Section 139 is a Date: 2024.08.09 rebuttable presumption and the onus is on the 16:18:28 +0530 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, 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 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.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposes an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to support his defence.
To put in nutshell, the law regarding the presumption for the offence under Section 138 N.I. Act,is that the presumptions under Sections 118(a) and 139 have to be compulsorily raised as soon as execution of cheque by the accused is admitted or proved by the complainant and thereafter burden is shifted upon the accused to prove otherwise. These Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.7 of33 presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. The onus to prove the issuance of the cheque lies upon the complainant, and the same has to be proved beyond reasonable doubt, unless the accused admits the same. Once the issuance of cheque is established, either by admission or by positive evidence, the presumption under Section 139 of the Negotiable Instruments Act, 1881 arises. We can summarize the general principles in the following way:
Onus of proof: Section 139 of the Negotiable Instruments Act, 1881 states that 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. AAKASH Therefore, here the onus shifts upon the accused to prove the nonexistence of debt or other liability. SHARMA Section 139 of the N.I. Act uses the word "shall presume", which means that the presumption under Digitally signed Section 139 is rebuttable. by AAKASH Standard of proof: The standard of proof required SHARMA to rebut the presumption under Section 139 is that of Date: 2024.08.09 16:18:32 +0530 "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 other liability, the onus shifts back to the complainant to prove by way of evidence, beyond reasonable doubt, that the cheque in question was issued by the accused in discharge, whole or in part, of any debt or other liability, and now the presumptions under Section 118 (a) and Section 139 will not come to the aid of the complainant.
Mode of Proof: The accused may adduce direct evidence to prove that the cheque in question was not supported by consideration, and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should prove the nonexistence of the consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that a bare denial of passing of consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.8 of33 burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances upon the consideration of which, the Court may either believe that the consideration and debt did not exist, or their nonexistence was so probable that a prudent man would, under circumstances of the case, act upon the plea that they did not exist.
As discussed above, from the legal provisions and the law laid down in various judgments, it can be safely gathered that it is for the accused to rebut the presumptions. He can do so by cross examining the complainant, leading defence evidence, thereby demolishing the case of the complainant. 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 AAKASH inherently unbelievable and therefore the SHARMA prosecution cannot stand. In this situation the accused has nothing to do except to point inherent Digitally signed by inconsistency in the version of the complainant or AAKASH SHARMA the accused can give his version of the story and say Date: 2024.08.09 that on the basis of his version the story of the 16:18:35 +0530 complainant cannot be believed.
ARGUMENTS AND APPRECIATION OF EVIDENCE:-
7. Ld. Counsel for the complainant has argued that all the requirements of Section 138 NI Act have been met with in the present case and hence, the accused be convicted. I have heard the arguments and also gone through the record with due circumspection.
8. In the case at hand, Ld. Counsel for the complainant has submitted that the accused has not disputed the issuance of the cheque or the signature on the cheque in the present case as accused has evasively stated that the signatures on the cheque are similar to his signatures and he may have signed the cheque, thus, the presumptions u/s 118 (a) read with Section 139 of NI Act about the cheques in question having been issued for Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.9 of33 consideration and in discharge of legal liability should arise in favor of the complainant. It is also submitted as per written submissions filed on behalf of the complainant that the complainant was questioned by the Ld. Counsel for the accused during his cross-examination as CW-1 and the complainant duly produced the RTGS document of Rs. 1,25,00,000/- done by the complainant through his bank to the accused as Ex.CW1/7. That thereafter, Ld. Counsel for the accused conducted no cross-
examination to the effect that the abovesaid amount of Rs. 1,25,00,000/- was not transferred by the complainant to the AAKASH accused through RTGS vide Ex.CW1/7. That it has been held by SHARMA the Hon'ble Delhi High Court in Hans Raj Bansal Vs. State, Digitally signed decided on 12.09.2023 that the complaints under Section 138 NI by AAKASH SHARMA Date: Act are not barred by the Punjab Registration of Money Lenders 2024.08.09 16:18:38 +0530 Act 1938, even if complainant is not having valid license or certificate of money lending. That complainant knew the accused through his family friend Mr. Krishan Seth and Mr. Krishan Seth had told the complainant that accused required financial assistance and that accused will be giving him interest and that his money would be safe. That complainant in his cross- examination has stated that Mr. Krishan Seth had given him the cheque in question as the accused is known to complainant through Mr. Krishan Seth, therefore the cheque was given by Mr. Krishan Seth and the cheque was filled in with all the particulars when the same was handed over to the complainant. That complainant had further stated that Mr. Krishan Seth informed the complainant that accused was in need of funds and on the asking of Mr. Krishan Seth, the complainant provided short term loan. That accused was also paying interest to the complainant.
Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.10 of33 That as per Ex.CW1/7, there were two cheques towards payment of interest each of Rs. 2,25,000/- which were deposited on 07.11.2014 and 14.01.2015. That the presumption under Section 139 NI Act has not been rebutted by the accused. That accused in his statement under Section 313 Cr.P.C. had admitted the issuance of the cheque as well as his signatures on the cheque. That the onus was upon the accused to rebut the presumption and to show his probable defence. That the accused to prove his defence got summoned complaint cases bearing no. 622893/2016 and 622895/2016. That complainant had given loan of Rs. 50 Lacs each by RTGS to Mr. Krishan Seth and his sons Sh. Nakul AAKASH Seth and Sh. Arjun Seth i.e. cumulatively Rs. 1,50,00,000/-. It is SHARMA submitted that complainant had given Rs. 2,75,00,000/- out of Digitally signed by AAKASH SHARMA Date: 2024.08.09 which Rs. 1,25,00,000/- were given to the accused, and three 16:18:45 +0530 RTGS of Rs. 50 Lacs each were done on 16.09.2015 in favour of Mr. Krishan Seth and his two sons Sh. Arjun Seth and Sh. Nakul Seth. That complainant is a holder in due course as per the presumption under Section 118(g) NI Act and the burden of rebutting the same lies upon the accused. That accused has not rebutted the presumption nor led or produced any evidence as provided in Proviso under Section 118(g) NI Act. That accused is liable to be convicted.
9. On the contrary, Ld. Counsel for accused has submitted that the complainant has misused the cheque in question with malafide intention. That the cheque in question was never issued to the complainant, rather it is a defence of the accused that the cheque in question was infact issued to Mr. Krishan Seth and the same was a blank signed cheque. That the accused till date has Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.11 of33 never met the complainant nor communicated with the complainant. That the cheque in question was given to Mr. Krishan Seth without payee name and all settlements were done with Mr. Krishan Seth. That accused had already made the payment against the cheque in question to Mr. Sandeep Chandoke and Mr. Krishan Seth. That accused never had any dealings with the complainant, however, accused used to transact with Mr. Krishan Seth and believed the RTGS was made by Mr. Krishan Seth but later came to know that RTGS was made by the complainant to the accused. That since accused had already settled the accounts with Mr. Krishan Seth and it was the duty of Mr. Krishan Seth to return the money to the complainant, there AAKASH SHARMA was no outstanding liability qua the cheque in question payable Digitally signed on behalf of accused to complainant. That the debts whatsoever by AAKASH SHARMA Date: 2024.08.09 were already satisfied towards the complainant from Mr. Krishan 16:18:49 +0530 Seth as per the judicial file bearing CC No. 622893/2016 bearing title Nitin Gupta Vs. Krishan Kumar Singh before the Court of Sh. Rishabh Tanwar, Ld. MM-09, South East, Saket which file has already been disposed off and as per the judicial file bearing CC No. 622895/2016 bearing title Nitin Gupta Vs. Krishan Kumar Singh before the Court of Sh. Rishabh Tanwar, Ld. MM- 09, South East, Saket which file has already been disposed off.
10. Ld. Counsel for accused has also filed written submissions. As per the written submissions on behalf of the Ld. Counsel for accused, it has been submitted that the complainant has not come up with clean hands and has suppressed the material facts, which are revealed in his evidence, to mislead the court in passing an order in his favour. That it is submitted in the legal notice which Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.12 of33 was sent by the complainant to the accused which is Ex.CW1/4, the complainant alleged that the accused requested him to grant the short term loan of Rs. 125 Lacs to meet his urgent need with an assurance that the same would be returned on the due date. However, in the cross-examination of the complainant dated 26.08.2022, he deposed that the complainant never met with the accused and there was not any comunication where the accused was seeking any financial assistance from the complainant. That it was further deposed by the complainant in his evidence dated 01.11.2022 that the money was given to the accused on the asking of Mr. Krishan Seth. That the complainant in his complaint as well as in legal notice alleged that the accused felt AAKASH SHARMA extremely sorry and renewed assurance was given by the accused Digitally signed by AAKASH to re-present the cheque once again for payment. However, the SHARMA Date: 2024.08.09 16:18:53 +0530 complainant in his evidence dated 01.11.2022 deposed that he did not send any communication to the accused but he had informed Mr. Krishan Seth regarding dishonour of the cheque. Moreover, Mr. Krishan Seth told him to re-present the said cheque. That the complainant falsely submitted that the accused had issued the cheque to the complainant to discharge his admitted liability and wrongly submitted that the complainant intimated the accused about dishonouring of the said cheque. That the deposition of the complainant in his evidence does not support the same version of the complaint. In the cross- examination of the complainant dated 01.11.2022, the complainant has deposed that Mr. Krishan Seth gave him the said cheque and he did not remember when the cheque was handed over to him. That the complainant has also deposed that the fact he never met the accused and did not have any direct Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.13 of33 communication and he informed to Mr. Krishan Seth only in regard to dishonour of cheque as he only knew the accused through Mr. Krishan Seth. That it is submitted that any fact which goes to the root of the subject matter is a material fact and suppression of the same would amount to suppression of material fact. In this case, the complainant not only suppressed the material fact but also made a wrongful and false submission in his complaint and affidavit of evidence that the accused had requested him to give a short loan and issued the cheque with the assurance that the said cheque is good for payment in order to discharge his liability. Moreover, the complainant has suppressed the material fact that he did not know the accused and the AAKASH SHARMA accused did not make any communication with regard to Digitally signed by AAKASH SHARMA financial assistance from the complainant. That the complainant Date: 2024.08.09 16:18:56 +0530 alleged in his deposition before the Hon'ble Court that he provided a short term loan to the accused on asking of Mr. Krishan Seth. Thus, the complainant did not disclose all the material facts and the complainant is not entitled to be heard and such person is not entitled to any relief.
It is submitted that the complainant in his cross- examination dated 04.11.2022 has admitted that he did not have any written agreement / document with the accused regarding loan. The complainant failed to establish the fact that any kind of loan was given to the accused on his assurance. That the records of two judicial files bearing case no. 622893/2016 and 622895/2016 bearing title NITIN GUPTA Vs. KRISHAN SETH, were called to bring up the fact before this Hon'ble Court that no financial transaction had taken place between the accused and the complainant. That in the cross-examination of the complainant in Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.14 of33 abovementioned cases, the complainant himself stated that he had advanced Rs. 2.75 Crores to the accused therein. Out of that Rs. 2.75 Crores, Rs. 1.25 Crores was given to Mr. Pankaj Dayal i.e. accused herein. Thus, it is submitted that the alleged transaction of loan Rs. 1,25,00,000/- had taken place between the complainant and Mr. Krishan Seth but not with the accused. That the complainant has neither made any submission in the complaint nor his evidence by way of an affidavit regarding the abovementioned facts. The complainant discloses such material fact during his cross examination that the accused did not make any communication about the financial assistance of Rs. 1,25,00,000/- with the complainant and the complainant has AAKASH SHARMA given the alleged loan on the asking of Mr. Krishan Seth.
Digitally signed by AAKASHMoreover, the complainant did not even examine Mr. Krishan SHARMA Date: 2024.08.09 Seth. It is further submitted that accused had taken the defence 16:19:00 +0530 that he never did any dealing with the complainant. The accused had submitted that he had never received any loan amount from the complainant and such money was taken from Mr. Krishan Seth and he did not know from whose account Mr. Krishan Seth paid him. That the said cheque was given to Mr. Krishan Seth and he did not return that cheque despite his request. The accused also submitted that all settlements were already done with Mr. Krishan Seth. However, the defence taken by the accused is very well corroborated with the deposition of the complainant during his cross-examination where the complainant himself has submitted that the cheque in question was given by Mr. Krishan Seth and he provided the loan to the accused on asking of Mr. Krishan Seth and there was not any direct communication of the complainant with the accused regarding the loan. That it is Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.15 of33 submitted that the accused proved the non-existence of any consideration by raising a probable defence that the complainant did not know the accused person and did not ever meet him. Moreover, the accused neither had any communication from the complainant regarding loan nor had any kind of loan agreement. That the complainant during his cross-examination also admitted the same fact. That the accused discharged the initial onus of proof showing that the existence of consideration was improbable, the onus would shift to the complainant but the complainant here failed to prove it as a matter of fact. As a matter AAKASH SHARMA of record despite getting his dues from Mr. Krishan Seth, Digitally signed complainant filed the case against Mr. Krishan Seth and deposed by AAKASH SHARMA Date: 2024.08.09 regarding liability of Rs. 1.25 Crores on Mr. Krishan Seth 16:19:03 +0530 indicating that any debt towards the complainant was of Mr. Krishan Seth. That as per Section 118(g) of NI Act, there is presumption of law that the holder of a negotiable instrument is a holder in due course. The Section 118(g) of NI Act says that:-
"118. Presumption as to negotiable instruments.- Until the contrary is proved, the following presumptions shall be made:- (g) that holder is a holder in due course:- that the holder of a negotiable instrument is a holder in due course:
provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him."
That there is no question of presumption that complainant was holder in due course as he himself admitted in the cross Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.16 of33 examination that he obtained the cheque from Mr. Krishan Seth and there was nothing on record to even remotely suggest that Mr. Krishan Seth was authorised by the accused to give the cheque to the complainant. Although while filing complaint and in pre-summoning evidence the allegation is contrary to the complainant's deposition in his cross examination which shows that the complainant did not come before the court with clean hands and thus the complainant is not entitled to be heard.
It is further submitted that in the matter of Devender Kumar Singla Vs. Baldev Krishan Singla, Crl. Appeal 1036 of 1997, which is on similar facts, the Hon'ble Supreme Court held AAKASH SHARMA that the presence of accused at the time of the transaction has not Digitally signed been established. Though she signed the cheque, admittedly the by AAKASH SHARMA Date: 2024.08.09 same was handed over to the complainant only by another 16:19:06 +0530 accused Devender. Thus, the Hon'ble High Court has rightly held that the accusations have not been brought home so far, she is concerned.
That as per presumption under Section 118 r/w Section 139 of the NI Act, it has to be presumed that the cheque was issued in discharge of legal liability unless the presumption is legally rebutted. It is submitted that the accused has successfully rebutted the presumption under Section 139 of the NI Act to prove that there is a non-existence of consideration and legally enforceable debt from the accused. It is prayed that accused be acquitted in the present case. Ld. Counsel for accused has relied upon judgment of the Hon'ble Supreme Court in Ramjas Foundation & Ors Vs. UOI & Ors AIR 1993 SC 852, submitting that unscrupulous litigants who resort to falsehood by making misstatement or by suppressing facts which have bearing on the Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.17 of33 adjudication of the issues arising in the case are not entitled to relief. Ld. Counsel for the accused has also relied upon judgment of the Hon'ble Supreme Court in Krishna Janardhan Bhat Vs. Dattaraya G. Hegde 2008 1SCR 605, submitting that an accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused can prove the non-existence of a consideration by raising a probable defence. It cannot be insisted that the accused must disprove the existence of consideration by leading direct evidence. It is prayed that accused be acquitted.
AAKASH SHARMA
11. The three-Judge Bench of Hon'ble Supreme Court in Digitally signed Rangappa Vs. Sri Mohan, (2010) 11 SCC 441 has held that: by AAKASH SHARMA Date: 2024.08.09 16:19:10 +0530 "where the fact of signature on the cheque is acknowledged, a presumption has to be raised that the cheque pertained to a legally enforceable debt or liability, however, this presumption is of a rebuttable nature and the onus is then on the accused to raise a probable defence."
In the present case, the accused in his statement under Section 251 Cr.P.C. has stated initially that "the signatures on the cheque are similar to my signatures and I might have signed the cheque. Other portions were not filled by me." The accused in his statement under Section 313 Cr.P.C has stated that "that the cheque was issued by me and signed by me but it was issued blank and I had given to Mr. Krishan Seth. The cheque given by me to Mr. Krishan Seth. He might have taken money from the complainant, therefore he might have handed over the cheque to the complainant". Hence, the accused has not denied Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.18 of33 his signatures on the cheque Ex.CW1/1. Thus, the factum of signatures on the cheque is not disputed and has been acknowledged.
12. It is pertinent to mention here that Section 139 only raises the presumption on fulfillment of its conditions that the cheque was issued for discharge of in whole or in part any debt or other liability but there is no presumption as to the existence of the debt or liabilty as such. In Rangappa (supra) it has been held that :
"Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for AAKASH discharge of any debt or other liability." SHARMA
13. As regards the legal notice, the receipt of the same has Digitally signed by AAKASH SHARMA Date: 2024.08.09 been denied by the accused both in the statement under Section 16:19:13 +0530 251 Cr.P.C. as well as statement under Section 313 Cr.P.C. As per the complainant, legal demand notice dated 03.12.2015 was sent through India Post on 04.12.2015 as well as through courier on 04.12.2015 and same was delivered upon the accused on 05.12.2015 as per Ex.CW1/6(Colly) with remarks "item delivered (to Mr. Pankaj Dayal)" i.e. accused herein. As per provisions of Section 114 of Indian Evidence Act, 1872, read with Section 27 of General Clauses Act, the court may presume that legal notice duly addressed to the accused persons and dispatched to them by way of post was actually received by the accused persons, regard being had to common course of natural events. Reliance is also placed upon the case of C C Alavi Haji v. Palapetty Muhammed [2007 (6) SCC 555] wherein it was held by the Hon'ble Supreme Court that:
Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.19 of33 "it is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons and therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court alongwith the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of General Clauses Act and Section 114 of Indian Evidence Act."
Hence, in my opinion, legal notice Ex.CW1/4 was duly AAKASH SHARMA served upon the accused.
Digitally signed by AAKASH SHARMA14. As regards to the fact of dishonor of the cheque in Date: 2024.08.09 16:19:16 +0530 question, the return memos filed by the complainant clearly show that the cheque in question was dishonored for the reasons "Funds Insufficient" on 23.11.2015 through Axis Bank, Khan Market, whereas upon re-presentation, the cheque in question was dishonoured for the reasons "Drawers Signature Differs" on 25.11.2015 through IndusInd Bank, Barakhamba Road. In the case at hand, neither any argument has been raised on behalf of the accused to dispute the dishonor of the cheque for the reason "Funds Insufficient" and upon re-presentation for the reasons "Drawers Signature Differs" nor this fact has been denied at any stage of the matter.
Whereas dispute was raised by the accused regarding the writings on the cheque in question but already after accused had admitted his signature on the cheque. Ld. Predecessor of this Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.20 of33 Court vide order dated 15.07.2023 dismissed the application of the accused to refer the cheque in question to CFSL to compare the writings on the cheque observing that the giving of blank signed cheque to Mr. Krishan Seth whereafter it reached the complainant with someone doing other writings on the cheque, in such case no purpose would be served by CFSL saying that this cheque was not filled by accused as to other writing when the giving of blank signed cheque by Mr. Krishan Seth was obviously to discharge liability of complainant on whose behalf he was acting with the complainant.
Thus, taking into account that dishonor of cheque is not disputed, this fact, also stands proved. AAKASH SHARMA
15. Thus, the presentation of the cheque in question, its Digitally signed by AAKASH SHARMA Date:
dishonor and service of legal notice is not under question. 2024.08.09 16:19:20 +0530 Consequently, the complainant has successfully raised a presumption under Section 139 NI Act.
Accordingly, it is required to be presumed that the cheque in question was drawn for consideration and the holder of the cheque i.e. the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the accused to establish a probable defence so as to rebut such a presumption.
In the segment on legal framework, set out above, the legal proposition with respect to the burden of proof upon the accused has already been discussed. Hence, it is now to be examined as to whether the accused brought any material on record or pointed out glaring discrepancies in the material produced by the Complainant for dislodging the presumption which meets the standard of preponderance of probabilities.
Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.21 of33
16. The primary defence raised by the accused is that the complainant has suppressed material facts. That complainant had alleged in the legal notice Ex.CW1/4 that the accused had requested the complainant to grant short term loan of Rs. 125 Lakhs to meet his urgent need with an assurance that the same would be returned on the due date. However, in the cross- examination of the complainant dated 26.08.2022, complainant / CW-1 had deposed that complainant never met with the accused and there was not any communication where the accused was seeking financial assistance from the complainant. That it was further deposed by the complainant in his evidence dated 01.11.2022 that the money was given to the accused on the AAKASH SHARMA assurance of Mr. Krishan Seth. That the complainant in his Digitally signed complaint as well as in legal notice had alleged that the accused by AAKASH SHARMA Date:
2024.08.09 felt extremely sorry and renewed assurance was given by the 16:19:23 +0530 accused to re-present the cheque once again for payment. However, the complainant in his evidence dated 01.11.2022 deposed that he did not send any communication to the accused but he had informed Mr. Krishan Seth regarding dishonour of cheque. Moreover, Mr. Krishan Seth told complainant to re- present the cheque. It is the defence of the accused that complainant falsely claimed that accused had issued the cheque to the complainant to discharge his admitted liability and wrongly submitted that the complainant intimated the accused about dishonouring of the said cheque. The deposition of CW-1 in cross-examination does not support his version in the evidence by way of affidavit. That complainant has suppressed material facts and made false submissions in his complaint and evidence by way of affidavit. It is also submitted on behalf of the accused Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.22 of33 that the records of two judicial files bearing case no. 622893/2016 and 622895/2016 bearing title NITIN GUPTA Vs. KRISHAN SETH, were called to bring up the fact before this Hon'ble Court that no financial transaction had taken place between the accused and the complainant. That in the cross- examination of the complainant in abovementioned cases, the complainant himself stated that he had advanced Rs. 2.75 Crores to the accused therein. Out of that Rs. 2.75 Crores, Rs. 1.25 Crores was given to Mr. Pankaj Dayal i.e. accused herein. Thus, it is submitted that the alleged transaction of loan Rs. 1,25,00,000/- had taken place between the complainant and Mr. Krishan Seth but not with the accused. That the complainant has neither made any submission in the complaint nor his evidence AAKASH by way of an affidavit regarding the abovementioned facts. The SHARMA Digitally signed complainant discloses such material fact during his cross by AAKASH SHARMA Date: 2024.08.09 16:19:27 +0530 examination that the accused did not make any communication about the financial assistance of Rs. 1,25,00,000/- with the complainant and the complainant has given the alleged loan on the asking of Mr. Krishan Seth. Moreover, the complainant did not even examine Mr. Krishan Seth. It is further submitted that accused had taken the defence that he never did any dealing with the complainant. The accused had submitted that he had never received any loan amount from the complainant and such money was taken from Mr. Krishan Seth and he did not know from whose account Mr. Krishan Seth paid him. That the said cheque was given to Mr. Krishan Seth and he did not return that cheque despite his request. The accused also submitted that all settlements were already done with Mr. Krishan Seth. However, the defence taken by the accused is very well corroborated with Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.23 of33 the deposition of the complainant during his cross-examination where the complainant himself has submitted that the cheque in question was given by Mr. Krishan Seth and he provided the loan to the accused on asking of Mr. Krishan Seth and there was not any direct communication of the complainant with the accused regarding the loan. That it is submitted that the accused proved the non-existence of any consideration by raising a probable defence that the complainant did not know the accused person and did not ever meet him. Moreover, the accused neither had any communication from the complainant regarding loan nor had any kind of loan agreement. That the complainant during his cross-examination also admitted the same fact. That the accused AAKASH discharged the initial onus of proof showing that the existence of SHARMA consideration was improbable, the onus would shift to the Digitally signed by AAKASH SHARMA Date:
complainant but the complainant here failed to prove it as a 2024.08.09 16:19:30 +0530 matter of fact. As a matter of record despite getting his dues from Mr. Krishan Seth, complainant filed the case against Mr. Krishan Seth and deposed regarding liability of Rs. 1.25 Crores on Mr. Krishan Seth indicating that any debt towards the complainant was of Mr. Krishan Seth. It is the defence of the accused that the version of the complainant cannot be relied upon.
17. I have carefully considered the above defence of the accused. The defence of the accused is that complainant suppressed certain facts. It is however to be borne in mind that the maxim falsus in uno, falsus in omnibus is not applicable in India and the witness cannot be branded a liar.
The Hon'ble Supreme Court in Mani @Udattu Man & Ors. Vs. State rep. by Inspector of Police in Cr. Appeal No. 382- Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.24 of33 384 of 2008 in judgment dated 25.02.2009 has observed in para 4 that:-
It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient, or to be not wholly credible. Falsity of material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witness or witnesses cannot be branded as liar (s). The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The AAKASH doctrine merely involves the question of weight of evidence SHARMA which a Court may apply in a given set of circumstances, Digitally signed by AAKASH but it is not what may be called `a mandatory rule of SHARMA Date: 2024.08.09 evidence'. (See Nisar Alli v. The State of Uttar Pradesh 16:19:34 +0530 [AIR 1957 SC 366]. In a given case, it is always open to a Court to differentiate accused who had been acquitted from those who were convicted where there are a number of accused persons. (See Gurucharan Singh and Anr. v. State of Punjab [AIR 1956 SC 460]. The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead- stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.25 of33 Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh [1972 (3) SCC 751] and Ugar Ahir and Ors. v. The State of Bihar [AIR 1965 SC 277]. An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh [AIR 1954 SC 15] and Balaka Singh and Ors. v. The State of Punjab [1975 (4) SCC 511]. As observed by this Court in State of Rajasthan v. Smt Kalki and Anr. [1981 (2) SCC 752], normal discrepancies in evidence are those which are AAKASH due to normal errors of observation, normal errors of SHARMA memory due to lapse of time, due to mental disposition such Digitally signed as shock and horror at the time of occurrence and those are by AAKASH SHARMA Date: always there however honest and truthful a witness may be. 2024.08.09 16:19:38 +0530 Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted in Krishna Mochi and Ors. v. State of Bihar etc. [2002 (6) SCC 81] and in Sucha Singh v. State of Punjab [2003 (7) SCC 643]. It was further illuminated in the Zahira H. Sheikh v. State of Gujarat [2004 (4) SCC 158], Ram Udgar Singh v. State of Bihar [2004(10) SCC 443], Gorle S. Naidu v. State of Andhra Pradesh [2003 (12) SCC 449], Gubbala Venugopalswamy v. State of Andhra Pradesh [2004 (10) SCC 120] and in Syed Ibahim v. State of A.P. [2006 (10) SCC 601].
18. For reasons hereinafter, this Court finds the testimony / deposition given by CW-1 creditable. CW-1 has clarified that accused was known to him through his family friend Mr. Krishan Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.26 of33 Seth with whom he had relationship for the last 21 years and the accused was very well known to Mr. Krishan Seth. CW-1 has deposed that Mr. Krishan Seth had told CW-1 that accused needs financial assistance and accused will be giving interest and that money of CW-1 is safe and shall come back shortly. CW-1 deposed that he has never met the accused. CW-1 deposed that Mr. Krishan Seth gave him the cheque in question. CW-1 voluntarily stated that accused is known to CW-1 through Mr. Krishan Seth and therefore cheque was given by Mr. Krishan Seth. CW-1 deposed voluntarily that Mr. Krishan Seth informed CW-1 that accused is in need of funds and CW-1 provided short term loan to accused on the asking of Mr. Krishan Seth. CW-1 AAKASH further deposed that accused was also paying him interest. SHARMA It is significant to note that Ld. Counsel for accused had Digitally signed by AAKASH SHARMA put a question to CW-1 to the effect that "Q. I put it to you that Date: 2024.08.09 16:19:41 +0530 you have no proof of transfer of Rs. 1.25 Crores to the account of the accused Pankaj Dayal. What do you have to say?"
CW-1 / complainant replied to this question with his answer "A. I have done an RTGS on 02.09.2014 from my bank Yes Bank to Pankaj Dayal's account (accused). The transfer has been shown in the Court record. I also have the document with me." At that stage, CW-1 produced Ex.CW1/7 which was objected to by the Ld. Counsel for the accused on the ground that this document was put forward for the first time without following the legal process. Ex.CW1/7 is a statement of account of complainant / CW-1 pertaining to Yes Bank, South Extension Branch, New Delhi for the period 02.09.2014 to 14.01.2015 wherein vide entry dated 02.09.2014, complainant had transferred Rs. 1,25,00,000/- through RTGS to the accused. It is Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.27 of33 also pertinent to take note of the fact as per transactions dated 07.11.2014 and 14.01.2015 in Ex.CW1/7, the complainant has deposited certain interest cheques of Rs. 2,25,000/- each given by the accused to the complainant. In the opinion of the Court, the objection of Ld. Counsel for the accused to Ex.CW1/7 does not hold water as witness CW-1 produced Ex.CW1/7 upon the suggestion given on behalf of the accused that CW-1 had no proof of transfer of Rs. 1.25 Crores to the account of the accused. CW-1 as his answer / response to such question was within his rights to produce Ex.CW1/7 as proof of the RTGS transaction on 02.09.2014 from his bank to the account of the accused. The objection of the Ld. Counsel for the accused AAKASH SHARMA that production of Ex.CW1/7 was without following the legal Digitally signed process is not sustainable as same was only produced in by AAKASH SHARMA Date: 2024.08.09 cross-examination pursuant to the question / suggestion put 16:19:44 +0530 forth on behalf of the accused. Accordingly, objection of the Ld. Counsel for the accused to production of Ex.CW1/7 is dismissed.
CW-1 has further deposed that money was given to accused on the assurance of Mr. Krishan Seth, and CW-1 had lent a total of Rs. 2.75 Crores. CW-1 fairly conceded that he had no written agreement / document with accused in regard to the loan and also stated voluntarily that he even does not have any agreement with the other friends and acquaintance of Mr. Krishan Seth to whom CW-1 extended financial help. It thus appears that CW-1 has remained unwavering in his stance that accused owes him Rs. 1.25 Crores qua the cheque in question. CW-1 denied the suggestion that he had also claimed the said amount from Mr. Krishan Seth. CW-1 stated that it was wrong to Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.28 of33 suggest that there was no liability of accused towards him. CW-1 remained unhesitatingly forthcoming and resolute during cross- examination and maintained his version that he knew the accused through Mr. Krishan Seth although, he had never met the accused personally. As far as the two judicial files bearing case no. 622893/2016 and 622895/2016 are concerned, each cheque constitutes a separate cause of action. The abovesaid judicial files have been disposed off by the concerned Court on grounds that the claim of the complainant for the cheques therein was satisfied on behalf of the accused therein. However, in the present case, accused has not at all shown that payment against the cheque AAKASH in question has been made to the complainant or even Mr. SHARMA Sandeep Chandoke or Mr. Krishan Seth except a bare Digitally signed by AAKASH SHARMA unsubstantiated averment by the accused in his statement Date: 2024.08.09 16:19:48 +0530 under Section 313 Cr.P.C. wherein accused has claimed that "I have made the payment against this cheque to Mr. Sandeep Chandoke and Mr. Krishan Seth". It appears that accused is liable towards the cheque in question as he has not made any such payment qua the cheque in question to the complainant or even the claimed but unsubstantiated payment to Mr. Sandeep Chandoke or Mr. Krishan Seth in satisfaction of the debt owed to the complainant. The version of the complainant that complainant transferred the money Rs. 1.25 Crores through RTGS vide Ex.CW1/7 directly in the account of the accused upon the asking of Mr. Krishan Seth and obtained the cheque in question from Mr. Krishan Seth for the said amount Rs. 1.25 Crores which had been issued by the accused stands proved. Also, the version of the accused that accused has made payment against the cheque in question to Mr. Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.29 of33 Sandeep Chandoke and Mr. Krishan Seth is not proved. The defence of the accused that there is no liability against the cheque in question because there was only a transaction of Rs. 2.75 Crores between the complainant and Mr. Krishan Seth out of which Rs. 2.75 Crores, Rs. 1.25 Crores were given to the accused but that same was already satisfied in CC No. 622893/2016 and 622895/2016 or that payment qua cheque in question was already made by accused to Mr. Sandeep Chandoke and Mr. Krishan Seth is liable to be rejected for lack of proof and same is not proved.
19. The second defence of the accused is that the existence of consideration between accused and the complainant is AAKASH improbable as accused never met the complainant nor accused SHARMA ever had any communication with the complainant regarding the Digitally signed by AAKASH SHARMA Date: 2024.08.09 loan or any loan agreement. The defence of the accused is that 16:19:51 +0530 complainant is not a holder in due course in terms of Section 118(g) of NI Act as complainant had himself admitted in his cross-examination that he obtained the cheque from Mr. Krishan Seth and there was nothing on record to even remotely suggest that Mr. Krishan Seth was authorized by the accused to give the cheque to the complainant.
20. The burden of proving that complainant is not a holder in due course lies upon the accused as per Proviso of Section 118(g) NI Act. Accused has not been able to show that the cheque in question was obtained from the accused or from any person in lawful custody thereof by means of an offence or fraud, or that the cheque in question was obtained from the maker or acceptor by means of an offence or fraud, or for unlawful consideration.
Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.30 of33 Accused has not discharged the burden requisite under Proviso of Section 118(g) NI Act for reasons hereinafter. Firstly, complainant gave proof Ex.CW1/7 to show the RTGS transaction of Rs. 1.25 Crores in favour of the accused. Accused has not disproved the RTGS transaction of Rs. 1.25 Crores in his favour received from the complainant. Rather, the accused took a dishonest moonshine defence which is revealed in the statement of the accused under Section 313 Cr.P.C. which is "I never received loan amount from the complainant directly. This money was taken from Mr. Krishan Seth. I cannot say whether Mr. Krishan Seth paid from which account and on whose account." Accused has not been truthful in his statement under AAKASH SHARMA Section 313 Cr.P.C. as complainant has given proof Ex.CW1/7 Digitally signed that loan amount was paid directly to the accused by him. The by AAKASH SHARMA Date: 2024.08.09 version of the accused that this money i.e. Rs. 1.25 Crores was 16:19:55 +0530 taken from Mr. Krishan Seth is unsubstantiated and false. Secondly, accused took a sham defence that accused had made the payment against the cheque in question to Mr. Sandeep Chandoke and Mr. Krishan Seth, however, accused led no proof in this regard and as such this defence of the accused remained illusory. Thirdly, it is not the case of the accused that the cheque in question was taken from his lawful custody by means of an offence or fraud or for unlawful consideration. Accused has admittedly given the cheque in question after signing the same to Mr. Krishan Seth. The cheque in question bears the amount Rs. 1.25 Crores. Complainant has proved that against RTGS transaction of Rs. 1.25 Crores, complainant had received the cheque in question issued by the accused through Mr. Krishan Seth. Thus, there was consideration. There was no offence or any Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.31 of33 fraud. Accused has not been able to prove by way of preponderance of probabilities that the complainant was not a holder in due course. Section 8 of the NI Act defines "holder in due course". Holder in due course simply means a bonafide possessor of instrument for value without notice. The complainant in the present case has indicated the original debt / liability payable by the accused through Ex.CW1/7 i.e. transfer of consideration of Rs. 1.25 Crores in favour of the accused. Accused has not been able to rebut the presumption under Section 118(g) NI Act that complainant was not a holder in due course. In the opinion of the court, accused has failed to rebut the presumption under Section 118 r/w 139 of the NI Act. AAKASH SHARMA Digitally signed by AAKASH
21. It is a settled position that the accused has to rebut the SHARMA Date: 2024.08.09 16:19:59 +0530 presumption raised under Section 139 and the standard of proof of which is 'preponderance of probabilities'. It is for the accused to raise a probable defence which creates a doubt on the version of the complainant. The accused, in the present matter has been unsuccessful in creating a doubt on the version of the complainant.
On the other hand, the complainant has supported his case by placing on record documentary and other evidences which could not be rebutted by the accused. In a nutshell, the complainant has been successful in proving his case beyond reasonable doubt.
CONCLUSION:-
22. This court finds that cumulatively, the accused has been unable to rebut the presumption raised against him under section 139 NI Act.
Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.32 of33 DECISION:-
23. Resultantly, the accused is convicted of the alleged offence under section 138 of NI act.
Announced in the open court today on 09th August, 2024.
This judgment contains 33 pages all are signed by me. A copy of this judgment be placed on the official website of the District Court.Digitally signed
AAKASH by AAKASH
SHARMA
SHARMA Date: 2024.08.09
16:20:03 +0530
(AAKASH SHARMA)
Judicial Magistrate First Class-03 (NI Act) South-East, Saket Courts, New Delhi.
Ct. Case No. 630771/2016 Nitin Gupta Vs. Pankaj Dayal Page No.33 of33