Delhi District Court
Drawing Of The Cheque vs . Cnr No. Dlsw020449122021 on 17 March, 2023
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NAND KISHORE SHARMA CC No. 21123/2021
Vs. CNR No. DLSW020449122021
JITENDER KUMAR KAUSHIK
DLSW020449122021
CNR No. DLSW020449122021
IN THE COURT OF SEEMA NIRMAL, MM (NI ACT) DIGITAL
COURT-02 (SOUTH-WEST), DWARKA COURT, NEW DELHI.
Case No. : 21123/2021
Instituted on : 15.09.2021
Decided on : 17.03.2023
NAND KISHOR SHARMA
S/O SHRI RAM SHARMA,
117, GALI NO. 5, NEAR G.B.M. PUBLIC SCHOOL,
AMBIKA ENCLAVE KAKROLA, DWARKA, NEW DELHI-110078
.....Complainant
Versus
JITENDER KUMAR KAUSHIK
HOUSE NO. WZ-258/2-A,
NEAR CANARA BANK, METRO PILLAR NO. 668,
UTTAM NAGAR, NEW DELHI -110059
.....Accused
Complaint u/s 138 of the Negotiable
Instruments Act, 1881, as amended up to
date.
Present: (Through Cisco Webex Video-conferencing)
Counsel for the Complainant Sh. Vinod Kumar with
complainant.
Counsel for the Accused Sh. Karamveer Tokas with Accused
(SEEMA NIRMAL)
MM-02 (Digital Court-02)
Digitally signed South West District
by SEEMA Dwarka Courts/ND/17.03.2023
SEEMA NIRMAL
NIRMAL Date:
2023.03.17
14:28:51 +0530
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NAND KISHORE SHARMA CC No. 21123/2021
Vs. CNR No. DLSW020449122021
JITENDER KUMAR KAUSHIK
Ram Kishore Yadav
J U D G M E N T:
1. The present complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the NI Act) has been filed by complainant Nand Kishor Sharma against accused Jitender Kumar Kaushik. It has been submitted by the complainant that on 06.06.2012 accused approached the complainant to provide him friend loan of Rs.8 lakhs as the accused was in urgent need of money and complainant provided the accused the said friendly loan of Rs.8 lakhs via (in form) two cheques i.e. one cheque bearing No. 011677 drawn on ICICI Bank, Jor Bagh, New Delhi amounting to Rs.2,75,000/- and another cheque bearing No. 006314627 drawn on Syndicate Bank, Dwarka, New Delhi amounting to Rs.3,25,000/- along with cash amount of Rs.2,00,000/- for a period of one year. It is further submitted that the cheque bearing No. 011677 amounting to Rs.2,75,000/- was transferred into the account of the accused on 09.06.2012 and the cheque 006314627 amounting to Rs.3,25,000/- was transferred into the account of the accused on 08.06.2012. It is further submitted that after expiry of one year i.e. on 15.06.2013 when complainant asked the accused for return of friendly loan of Rs.8 lakhs, the accused started avoiding returning of said loan amount by citing reasons Digitally signed by SEEMA (SEEMA NIRMAL) SEEMA NIRMAL Date: MM-02 (Digital Court-02) NIRMAL 2023.03.17 South West District 14:29:01 +0530 Dwarka Courts/ND/17.03.2023 :3: NAND KISHORE SHARMA CC No. 21123/2021 Vs. CNR No. DLSW020449122021 JITENDER KUMAR KAUSHIK that his wife and mother are suffering from kidney and other medical problems and needs further more time to return the said friendly loan mount. It is further submitted that ultimately after great efforts and persuasion on 19.06.2021 accused issued a cheque bearing No. 576091 dt. 20.06.2021 drawn on Syndicate Bank, Najafgarh road, Uttam Nagar, Delhi
-110059 amounting to Rs.8 lakhs in favour of the complainant against the friendly loan. It is further submitted that acting on the assurance of the accused, the complainant presented the cheque bearing No. 576091 dt. 20.06.2021 in his bank i.e. Canara Bank, Sector-12 A, New Delhi for realization but it was utter shock and surprise for the complainant that the said cheque was returned uncleared vide return memo dt. 05.07.2021 with the reason "DORMANT ACCOUNT AND INSUFFICIENT FUNDS" . The complainant contacted and informed the accused about the fate of the cheque issued by the accused. It is further submitted that thereafter accused started avoiding making payment of the aforesaid detailed cheque towards his due debt liability one one pretext or the other. Thereafter, the complainant got issued a legal notice dated 28.07.2021 through his counsel calling upon the accused to make the aforesaid payment along with legal notice fee of Rs.5,000/- within prescribed period. However, accused has not complied with the legal notice and the accused had not paid the amount till date. Hence, this complaint. Therefore, in these (SEEMA NIRMAL) Digitally signed by SEEMA MM-02 (Digital Court-02) SEEMA NIRMAL South West District Date: Dwarka Courts/ND/17.03.2023 NIRMAL 2023.03.17 14:29:11 +0530 :4: NAND KISHORE SHARMA CC No. 21123/2021 Vs. CNR No. DLSW020449122021 JITENDER KUMAR KAUSHIK circumstances, the accused has rendered herself liable to an offence punishable under Section 138 of the NI Act and she should be punished for the same.
2. In his pre-summoning evidence, the complainant tendered his evidence by way of affidavit (Ex. CW1/8) only along following documents:
Ex.CW-1/1 : Bank Passbook/bank statement Ex.CW-1/2 : Cheque bearing No. 576091 dt. 20.06.2021 Ex.CW-1/3 : Cheque return memo dt. 05.07.2021.
Ex.CW-1/4 : Legal notice dt. 28.07.2021
Ex.CW-1/5 : Postal receipts
Ex.CW-1/6 : Tracking report
Ex.CW-1/7 : Complaint
Ex.CW-1/8 : PSE Affidavit
Ex.CW-1/9: Certificate U/s 65 B of Indian Evidence Act.
3. On the basis of this complaint and after conclusion of pre-
summoning evidence, the accused was summoned under Section 138 of the NI Act vide order dated 18.11.2021 by the predecessor court of this court. After procuring the presence of the accused, notice of accusation was severed upon the accused by the Ld. Predecessor of this Court Sh. Vaibhav Kumar, MM (NI Act) Digital Court-02, South West Dwarka Courts, New Delhi on 26.05.2022 and the case was adjourned for cross-
Digitally signed (SEEMA NIRMAL)
by SEEMA MM-02 (Digital Court-02)
SEEMA NIRMAL
South West District
NIRMAL Date:
2023.03.17
Dwarka Courts/ND/17.03.2023
14:29:22 +0530
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Vs. CNR No. DLSW020449122021
JITENDER KUMAR KAUSHIK
examination of the complainant. Thereafter, the complainant closed his evidence.
4. After perusing the deposition of the complainant and witnesses examined by the complainant, incriminating evidence was made out against the accused. Hence, the statement of accused was recorded to which he pleaded his innocence and false implication and opted to lead his defence evidence and even filed application under section 315 CrPC, which was allowed but the accused opted not to lead any DE later on. It is to be noticed that no adverse inference against the accused person is drawn because as per section 315(1) Cr.P.C.
"(b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial."
5. The accused closed his defence evidence vide statement dated 04.03.2023 through his counsel.
6. I have heard learned counsel for the parties and gone through the case file carefully and thoroughly with their assistance.
7. Learned counsel for the complainant has argued that in the present case, the evidence adduced by the complainant shows that the offence under Section 138 of the NI Act has been committed by the Digitally signed (SEEMA NIRMAL) by SEEMA MM-02 (Digital Court-02) SEEMA NIRMAL South West District Dwarka Courts/ND/17.03.2023 NIRMAL Date:
2023.03.17 14:29:29 +0530 :6: NAND KISHORE SHARMA CC No. 21123/2021 Vs. CNR No. DLSW020449122021 JITENDER KUMAR KAUSHIK accused. Cheque (EX.CW-1/2.) which have been issued by the accused, have been returned as dishonoured and this information was given to the accused. The cheque has been returned as dishonoured on account of "Insufficient funds" and the legal notice was sent to the accused apprising him of the dishonour of cheque by the bank, however, he failed to make the payment within 15 days of the receipt of the notice. Thus, the complainant having proved the essential ingredients of the commission of offence punishable under Section 138 of the NI Act and therefore the accused be convicted for the offence under Section 138 of the NI Act. On the other hand, learned counsel for the accused has argued that no such offence has been committed by the accused as cheque in question was given 8 to 10 years ago and accused has not liability towards the complainant, however, complainant misused the cheque in question. The counsel for the accused further submits that the legal notice was issued by the complainant through his counsel which was never received by the accused person.
8. In the case titled as K. Bhaskaran Vs. Sankaran Vaidhyan Balan and another 1999 AIR (SC) 3762, it has been held by the Hon'ble Supreme Court that the offence under Section 138 of the Act can be completed only with the concatenation of a number of acts namely:
(SEEMA NIRMAL) Digitally signed by MM-02 (Digital Court-02) SEEMA South West District SEEMA NIRMAL Dwarka Courts/ND/17.03.2023 NIRMAL Date:
2023.03.17 14:29:36 +0530 :7: NAND KISHORE SHARMA CC No. 21123/2021 Vs. CNR No. DLSW020449122021 JITENDER KUMAR KAUSHIK
1. Drawing of the cheque,
2. Presentation of the cheque to the bank,
3. Returning the cheque unpaid by the drawee bank,
4. Giving notice in writing to the drawer of the cheque demanding payment of cheque amount,
5. Failure of the drawer to make payment within 15 days of the receipt of the notice.
9. In the case titled as Siva Kumar Vs. Nataranjan, 2009(3) CCC 665 (SC) Hon'ble Supreme court has considered the provision which has been appended to Section 138 of the NI Act and it has been observed as under:
" It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but is another thing to say that dishonour of a cheque by itself constitutes an offence: for the purpose of proving its case that the accused has committed an offence under section 138 of the Negotiable Instruments Act, the ingredients there of are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in Digitally signed (SEEMA NIRMAL) by SEEMA MM-02 (Digital Court-02) SEEMA NIRMAL Date: South West District NIRMAL 2023.03.17 Dwarka Courts/ND/17.03.2023 14:29:44 +0530 :8: NAND KISHORE SHARMA CC No. 21123/2021 Vs. CNR No. DLSW020449122021 JITENDER KUMAR KAUSHIK the provisos (a) (b) and (c) appended to section 138 of the Negotiable Instruments Act intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of notice the accused at his own peril may refuse to pay the amount. Clauses (b) and (c) of the proviso to section 138 therefore must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would".
10. In Hiten P. Dalal vs. Bratindranath Banerjee, (2001) 6 SCC 16, Hon'ble Apex Court held as under:
"22.....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."
Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs....."
Digitally signed (SEEMA NIRMAL)
by SEEMA MM-02 (Digital Court-02)
SEEMA NIRMAL
South West District
NIRMAL Date:
2023.03.17
Dwarka Courts/ND/17.03.2023
14:29:50 +0530
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Vs. CNR No. DLSW020449122021
JITENDER KUMAR KAUSHIK
11. In Rangappa vs. Sri Mohan, (2010) 11 SCC 441, Hon'ble Apex Court considered the contention that presumption mandated by Section 139 NI Act does not include existence of a legally enforceable debt or liability, as under:
"26. In 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 a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat may not be correct....."
12. In Rangappa vs. Sri Mohan (supra), Hon'ble Supreme Court of India held that the appellant 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 appellant may not need to adduce evidence.
13. In Kishan Rao vs. Shankargouda, (2018) 8 SCC 165, Hon'ble Supreme Court of India held that the accused may lead evidence to dislodge the presumption, but mere denial of existence of debt is not sufficient, as under:
Digitally signed (SEEMA NIRMAL)
SEEMA by SEEMA
NIRMAL
MM-02 (Digital Court-02)
South West District
NIRMAL Date: 2023.03.17
14:29:57 +0530
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Vs. CNR No. DLSW020449122021
JITENDER KUMAR KAUSHIK
"20. This Court held that the accused may adduce evidence to rebut the presumption, but mere denial regarding existence of debt shall not serve any purpose".
14. In Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513, Hon'ble Supreme Court of India held as under:
"20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non- existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note 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 disprove the non-existence of 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 bare Digitally signed (SEEMA NIRMAL) by SEEMA MM-02 (Digital Court-02) SEEMA NIRMAL Date:
South West District NIRMAL 2023.03.17 Dwarka Courts/ND/17.03.2023 14:30:02 +0530 : 11 : NAND KISHORE SHARMA CC No. 21123/2021 Vs. CNR No. DLSW020449122021 JITENDER KUMAR KAUSHIK denial of the passing of the 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 burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist....."
15. Now lets scrutinize this case in wake of above mentioned precedents.
16. After perusal of the documentary as well as oral evidence placed on record, this court is of the considered view that the complainant has not been able to successfully prove his case against the accused for the reasons as discussed below:
17. In the present case, the complainant has proved the issuance of cheque (Ex.CW-1/2 by the accused on 19.06.2021 as clear from the testimony of CW-1 complainant Nand Kishore Sharma. He has reiterated the version of his complaint in his evidence by way of tendering his duly (SEEMA NIRMAL) MM-02 (Digital Court-02) Digitally signed by SEEMA South West District Dwarka Courts/ND/17.03.2023 SEEMA NIRMAL Date:
NIRMAL 2023.03.17
14:30:08
+0530
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Vs. CNR No. DLSW020449122021
JITENDER KUMAR KAUSHIK
sworn affidavit Ex.CW-1/8. Further, the accused when pleaded not guilty to the notice of accusation served upon him on dated 26.05.2022 clearly admitted his signatures on the cheque in question. On dated 26.05.2022 at the time of admission and denial of documents also the accused had admitted the cheque number and his signatures on the cheque. He also admitted the return memo and address mentioned on the legal demand notice by him was accepted. He simply said it at the time of framing Notice that the cheque in question was given to the complainant 8 to 10 years ago and accused do not owe any liability towards the complainant and the cheque in question has been misused by the complainant. Further, the accused in his statement under section 313 Cr.Pc, recorded on dated 07.02.2023 stated that he had given a blank signed cheque to complainant. Further he stated that he had not received the legal notice dt. 28.07.2021 Ex.CW1/4.
18. Ld. Defence counsel has argued that the accused had not received the legal demand notice and, therefore, the present complaint case is not maintainable against him. This court has given its thoughts to the matter. According to Section 27 of the General Clauses Act and Section 114, Indian Evidence Act, the accused is deemed to have received the demand notice once the same is dispatched in due course. Be that as it Digitally signed (SEEMA NIRMAL) by SEEMA MM-02 (Digital Court-02) SEEMA NIRMAL Date:
South West District Dwarka Courts/ND/17.03.2023 NIRMAL 2023.03.17 14:30:13 +0530 : 13 : NAND KISHORE SHARMA CC No. 21123/2021 Vs. CNR No. DLSW020449122021 JITENDER KUMAR KAUSHIK may, it is also a well settled law that once the accused receives summons from the court, even in case where he may not have been served properly with the legal notice by the complainant, it is deemed that if he wants to pay, then he can do so within 15 days from such receipt of court summons. There he can no longer plead non-receipt of legal demand notice. In this regard, this court is supported by the judgment of Hon'ble Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555 as follows:
"17. 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 (by receiving a copy of complaint with the 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 along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper Digitally signed (SEEMA NIRMAL) by SEEMA MM-02 (Digital Court-02) SEEMA NIRMAL South West District NIRMAL Date:
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Vs. CNR No. DLSW020449122021
JITENDER KUMAR KAUSHIK
service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case [(1999) 7 SCC 510 : 1999 SCC (Cri) 1284] if the "giving of notice" in the context of Clause (b) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."
In view of the above law laid down by the Hon'ble Supreme Court, a detailed discussion is not required on the aspect of proving receipt or non- receipt of legal demand notice in a case like the present one where the accused is denying his liability to pay as once he received summons, he could be said to have had good notice of the present complaint and could have paid the amount within 15 days thereafter. Moreover, it is a matter record that legal notice was sent on the same address on which service of summons was effected.
Digitally signed by SEEMA
SEEMA NIRMAL Date: (SEEMA NIRMAL) MM-02 (Digital Court-02) NIRMAL 2023.03.17 South West District 14:30:26 +0530 Dwarka Courts/ND/17.03.2023 : 15 : NAND KISHORE SHARMA CC No. 21123/2021 Vs. CNR No. DLSW020449122021 JITENDER KUMAR KAUSHIK
19. To make any person liable under Section 138 Negotiable Instruments Act (hereinafter to be read as 'The Act'), the following ingredients are required to be proved by the complainant:
(i) Person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii)That cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv)That cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days Digitally signed by SEEMA (SEEMA NIRMAL) SEEMA NIRMAL MM-02 (Digital Court-02) South West District NIRMAL Date:
2023.03.17 Dwarka Courts/ND/17.03.2023 14:30:32 +0530 : 16 : NAND KISHORE SHARMA CC No. 21123/2021 Vs. CNR No. DLSW020449122021 JITENDER KUMAR KAUSHIK of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) 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.
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 Act.
20. In this case, it is not disputed and duly admitted by the accused that the cheque in question bears his signatures though denied the fact of filling the details of the same and drawing the same in favour of the complainant in order to discharge any liability. The said proposition has been duly observed by Hon'ble Supreme Court in the case of Bir Singh versus Mukesh Kumar, (2019) 4 SCC 197. The relevant paras are being reproduced hereinafter for ready reference:-
"36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show Digitally signed (SEEMA NIRMAL) by SEEMA MM-02 (Digital Court-02) SEEMA NIRMAL Date:
South West District Dwarka Courts/ND/17.03.2023 NIRMAL 2023.03.17 14:30:37 +0530 : 17 : NAND KISHORE SHARMA CC No. 21123/2021 Vs. CNR No. DLSW020449122021 JITENDER KUMAR KAUSHIK that the cheque was not issued in discharge of a debt.
37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.
38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque.
The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence." And further reiterated in Triyambak S Hedge vs Sripad (2021) SCC Online SC 788.
Digitally signed by SEEMA
SEEMA NIRMAL (SEEMA NIRMAL)
NIRMAL Date:
2023.03.17
MM-02 (Digital Court-02)
South West District
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JITENDER KUMAR KAUSHIK
21. After perusal of the record it is found that the debt in present case is a time barred debt. The question whether a time barred debt is a legally enforceable debt U/s 138 NI Act has been dealt with in Sasseriyil Joseph v. Devassia 2001 CriLJ 24, wherein The Hon'ble High Court of Kerala has held as under :-
"6. The only question that arises for consideration in this appeal is whether the respondent who issued the cheque in question in discharge of a time barred debt is liable under S. 138 of the Negotiable Instruments Act. In this case, the complainant had admitted that the loan was advanced to the accused in January, 1988 and the cheque was issued in February, 1991. Thus, by the time the cheque was issued, the debt was barred by limitation since there was no valid acknowledgment of the liability within the period of limitation. According to the learned counsel for the appellant, the promise made by the accused to repay the time barred debt would come within the purview of S. 25(3) of the Indian Contract Act. No doubt, the promise to pay a time barred cheque is valid and enforceable, if it is made in writing and signed by the person to be charged therewith. But, it is clear from S. 138 of the Negotiable Instruments Act that in order to attract the penal provisions in the bouncing of a cheque Digitally signed (SEEMA NIRMAL) by SEEMA MM-02 (Digital Court-02) SEEMA NIRMAL South West District NIRMAL Date:
2023.03.17 Dwarka Courts/ND/17.03.2023 14:30:49 +0530 : 19 : NAND KISHORE SHARMA CC No. 21123/2021 Vs. CNR No. DLSW020449122021 JITENDER KUMAR KAUSHIK in Chapter XVII, it is essential that the dishonoured cheque should have been issued in discharge, wholly or in part, or any debt or other liability of the drawer. The explanation to S. 138 defines the expression 'debt or other liability' as a legally enforceable debt or other liability. The explanation to S. 138 reads as under:-- "Explanation:-- For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability"
7. Thus, S. 138 is attracted only if the cheque is issued for the discharge of a legally enforceable debt or other liability. In this case, admittedly, the cheque in question was issued in discharge of a time barred debt. It cannot be said that a time-barred debt is a legally enforceable debt. In this connection, it is also relevant to note the decision of the Andhra Pradesh High Court reported in Girdhari Lal Rathi v. P.T.V. Ramanujachari (1997 (2) Crimes 658). It has been held in that case that if a cheque is issued for a time-barred debt and it is dishonoured, the accused cannot be convicted under S. 138 of the Negotiable Instruments Act simply on the ground that the debt was not, legally recoverable. I am fully in agreement with the view expressed by Digitally signed by SEEMA SEEMA NIRMAL (SEEMA NIRMAL) NIRMAL Date:
2023.03.17 MM-02 (Digital Court-02) South West District 14:30:55 +0530 Dwarka Courts/ND/17.03.2023 : 20 : NAND KISHORE SHARMA CC No. 21123/2021 Vs. CNR No. DLSW020449122021 JITENDER KUMAR KAUSHIK the learned Judge in the decision referred to above."
22. Similarly, Hon'ble High Court of Delhi, in M/s. Vijay Polymers Pvt. Ltd. vs M/s. Vinnay Aggarwal, 2009 SCC OnLine Del 1075, has also discussed the law whether a complaint filed under Section 138 of the Negotiable Instruments Act is maintainable in law, if the same is based upon the dishonor of a cheque which was issued in lieu of a debt which was not legally recoverable at the time of issuance of the said cheque. It has been held as under:
"12. A perusal of the aforesaid provision clearly goes to show that for analyzing the limitation of a civil liability beyond a period of three years, the acknowledgement, if any, must be there before period of limitation is over, which is not the case.
13. It may also be relevant to take note of the judgment delivered by the Bombay High Court in Smt. Ashwini Satish Bhat Vs. Shri Jeevan Divakar Lolienkar & Another [2000(5) Bom CR 9], wherein also in a similar case when a cheque was dishonoured which issued beyond the period of limitation the appeal filed by the complainant was dismissed. The relevant observations made in this regard in the aforesaid judgment are reproduced hereunder:-
Digitally signed
by SEEMA (SEEMA NIRMAL)
MM-02 (Digital Court-02)
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Date: South West District
NIRMAL 2023.03.17 Dwarka Courts/ND/17.03.2023
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Vs. CNR No. DLSW020449122021
JITENDER KUMAR KAUSHIK
"3. On the other hand, learned Advocate Shri C.A. Ferreira, appearing for the respondent, submitted before me that the dishonoured cheque in question was not in respect of a legally enforceable debt and in view of Explanation to section 138 of the said Act, the Magistrate has rightly acquitted the respondent on the said count as well as on the ground that there was doubt as to whether the amount mentioned in the said cheque was in the handwriting of the respondent as the defence of the respondent is that he had handed over to the appellant a blank cheque. In support of his submission that the dishonoured cheque in question is not in connection with any legally enforceable debt, reliance was placed by him on Girdhari Lal Rathi v. P.T.V. Ramanujachari and another, 1998 Bank J. 127 : 2000 Do Ch. (A.P.)420. He, therefore, submits that there is no case for interference with the acquittal.
4. The complainant, respondent and one Shankar Prabhudessai had entered into partnership vide Partnership Deed Exhibit P.W. 1/D on 24th August 1990. This partnership was dissolved on 13th June 1991 after an agreement was executed between the parties under which the respondent agreed to pay a sum of Rs.
Digitally signed by SEEMA (SEEMA NIRMAL) SEEMA NIRMAL MM-02 (Digital Court-02) NIRMAL Date: 2023.03.17 South West District 14:31:05 +0530 Dwarka Courts/ND/17.03.2023 : 22 : NAND KISHORE SHARMA CC No. 21123/2021 Vs. CNR No. DLSW020449122021 JITENDER KUMAR KAUSHIK
1,53,724 to the appellant/complainant within 12 months and in case he fails to make the said payment during the said period, the said amount was to carry bank interest from the date of the agreement. The case of the complainant further is that the respondent did not pay the amount as agreed under the said Agreement dated 13th June, 1991, but on 19th July, 1996 the respondent issued cheque for Rs. 3,87,500/- and this cheque has bounced.
5. The defence had taken the stand that the dishonoured cheque was not in relation to any legally enforceable debt and, as such, the respondent could not be held guilty under section 138 of the said Act. The contention of learned Advocate for the appellant is that this cheque dated 19th July 1996 itself is an acknowledgement of debt and, as such, there is no merit in the submission of the defence that the liability under dishonoured cheque is not on account of legally enforceable debt. Insofar as the dishonoured cheque is concerned, the stand taken by the respondent is that the cheque was not written by him and it is not in his handwriting and that he had, in fact, issued a blank cheque in favour of the appellant for certain purpose. This stand Digitally signed by SEEMA (SEEMA NIRMAL) SEEMA NIRMAL MM-02 (Digital Court-02) South West District NIRMAL Date:
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Vs. CNR No. DLSW020449122021
JITENDER KUMAR KAUSHIK
was specifically taken by the respondent in the course of the trial and, as such, it was necessary for the complainant to have sought the opinion of handwriting expert in case her case was that the cheque in question was in the handwriting of the respondent, so as to rebut the theory of blank cheque taken by the respondent. It is in these circumstances that the Magistrate had come to the conclusion that the dishonoured cheque in question cannot be treated as acknowledgement under section 18 of the Limitation Act, since the acknowledgement should be before the period of limitation is over and that it should be in writing. In view of this position, the Magistrate was right in coming to the conclusion that it had not been proved that the dishonoured cheque was in relation to a legally enforceable debt or liability in law. The dishonoured cheque admittedly was issued after 5 years of the said Agreement dated 13th June 1991.
6. The ruling upon which reliance has been placed by the learned advocate for the respondent is applicable on all fours. In that case loan was advanced in the year 1985 and the cheque was issued in the year 1990. By the time the cheque was issued, Digitally signed by SEEMA SEEMA NIRMAL (SEEMA NIRMAL) MM-02 (Digital Court-02) NIRMAL Date:
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NAND KISHORE SHARMA CC No. 21123/2021
Vs. CNR No. DLSW020449122021
JITENDER KUMAR KAUSHIK
the debt was barred by limitation because no acknowledgement was obtained before the expiry of 3 years from the date of loan. In these circumstances, it was held there that the debt was not legally enforceable at the time of issuance of cheque and the accused could not be punished under section 138 of the said Act. It was further held therein that in case a cheque is issued for time barred debt and it is dishonoured, the accused cannot be convicted under section 138 on the ground that the said debt was not legally recoverable.
7. For the aforesaid reasons, I do not find any merit in this appeal and the appeal is liable to be dismissed. The appeal is accordingly dismissed."
14. No contrary judgment has been cited on behalf of the complainant/respondent. Accordingly the petition is allowed..."
23. Hon'ble High Court of Delhi in M/s. Jage Ram Karan Singh & Anr vs State & Anr, 2019 SCC OnLine Del 9486, has summarized the law in this regard. It has been held as under:
"A bare perusal of the aforesaid provision clearly goes on to show that for analyzing the limitation of a liability beyond a period of three years, the acknowledgment, if any, must be there Digitally signed by SEEMA (SEEMA NIRMAL) SEEMA NIRMAL MM-02 (Digital Court-02) South West District NIRMAL Date:
2023.03.17 Dwarka Courts/ND/17.03.2023 14:31:22 +0530 : 25 : NAND KISHORE SHARMA CC No. 21123/2021 Vs. CNR No. DLSW020449122021 JITENDER KUMAR KAUSHIK before the period of limitation is over, which is not the case in hand."
24. Sasseriyil Joseph v. Devassia (supra) wherein, in a similar case, it has been held by the Supreme Court that, a cheque which has been issued by the accused for a due which was barred by limitation, the penal provision under Section 138 of the NI Act is not attracted. The relevant observations made in this regard in the aforesaid judgment are reproduced hereunder: -
"We have heard learned counsel for the petitioner. We have perused the judgment of the High Court of Kerala in Criminal Appeal No. 161 of 1994 confirming the judgment/order of acquittal passed by the Addl. Sessions Judge, Thalassery in Criminal Appeal No. 212 of 1992 holding inter alia that the cheque in question having been issued by the accused for due which was barred by limitation the penal provision under Section 138 of the Negotiable Instruments Act is not attracted in the case.
"On the facts of the case as available on the records and the clear and unambiguous provision in the explanation to Section 138 of the Negotiable Instruments Act the judgment of the Digitally signed by SEEMA SEEMA NIRMAL (SEEMA NIRMAL) NIRMAL Date: MM-02 (Digital Court-02) 2023.03.17 South West District 14:31:27 Dwarka Courts/ND/17.03.2023 +0530 : 26 : NAND KISHORE SHARMA CC No. 21123/2021 Vs. CNR No. DLSW020449122021 JITENDER KUMAR KAUSHIK lower appellate Court as confirmed by the High Court is unassailed. Therefore, the special leave petition is dismissed."
25. In Vijay Polymers Pvt. Ltd. & Anr. v. Vinnay Aggarwal (supra), relying upon the judgment of the Supreme Court in Sasseriyil Joseph (supra), it has been observed that, cheques issued for a time-barred debt would not fall within the definition of 'legally enforceable debt', which is the essential requirement for a complaint under Section 138 of the NI Act; the extended meaning of debt or liability has been explained in the Section which means a legally enforceable debt or liability. Useful reference may also be made to the case titled Prajan Kumar Jain v. Ravi Malhotra, 2009 SCC Online Del 3368, wherein, like the case in hand, it has been held by another Coordinate Bench of this Court that, an acknowledgment to be encompassed within the ambit of Section 18 of the Limitation Act has to be an acknowledgment in writing as also within the prescribed period of limitation. These are the twin requirements which have to be fulfilled in order to be a valid acknowledgment under Section 18 of the Limitation Act. Relevant portion of the aforesaid judgment is reproduced hereunder:
"10....This acknowledgment even as per the complaint was much after the statutory period of three years which is the Digitally signed by SEEMA (SEEMA NIRMAL) SEEMA NIRMAL MM-02 (Digital Court-02) Date: South West District NIRMAL 2023.03.17 Dwarka Courts/ND/17.03.2023 14:31:34 +0530 : 27 : NAND KISHORE SHARMA CC No. 21123/2021 Vs. CNR No. DLSW020449122021 JITENDER KUMAR KAUSHIK prescribed period of limitation for the recovery of an outstanding amount. An acknowledgment to be encompassed within the ambit of Section 18 of the Limitation Act has to be an acknowledgment in writing as also within the prescribed period of limitation. These are the twin requirements which have to be fulfilled in order to be a valid acknowledgment under Section 18 of the Limitation Act which is admittedly not so in the instant case. In this case this acknowledgment to pay the balance amount was in terms of the settlement dated
26.1.2005 i.e. much after the statutory period of three years; it also does not speak of the acknowledgement being in writing. It was thus not a valid acknowledgment."
26. In the present case it is the case of the complainant that that on 06.06.2012 accused approached the complainant to provide him friend loan of Rs.8 lakhs as the accused was in urgent need of money and complainant provided the accused the said friendly loan of Rs.8 lakhs via (in form) two cheques i.e. one cheque bearing No. 011677 drawn on ICICI Bank, Jor Bagh, New Delhi amounting to Rs.2,75,000/- and another cheque bearing No. 006314627 drawn on Syndicate Bank, Dwarka, New Delhi amounting to Rs.3,25,000/- along with cash amount of Rs.2,00,000/- Digitally signed
by SEEMA (SEEMA NIRMAL)
SEEMA NIRMAL
Date:
MM-02 (Digital Court-02)
South West District
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Vs. CNR No. DLSW020449122021
JITENDER KUMAR KAUSHIK
for a period of one year. It is further submitted that the cheque bearing No. 011677 amounting to Rs.2,75,000/- was transferred into the account of the accused on 09.06.2012 and the cheque 006314627 amounting to Rs.3,25,000/- was transferred into the account of the accused on 08.06.2012. It is further submitted that after expiry of one year i.e. on 15.06.2013 when complainant asked the accused for return of friendly loan of Rs.8 lakhs, the accused started avoiding returning of said loan amount by citing reasons that his wife and mother are suffering from kidney and other medical problems and needs further more time to return the said friendly loan mount. It is further submitted that ultimately after great efforts and persuasion on 19.06.2021 accused issued a cheque bearing No. 576091 dt. 20.06.2021 drawn on Syndicate Bank, Najafgarh road, Uttam Nagar, Delhi -110059 amounting to Rs.8 lakhs in favour of the complainant against the friendly loan.
27. It is the case of the complainant that repayment of the loan amount was to be done within one year from the date of loan, i.e. it was to be done on or before 15.06.2013, which are two different contingencies for the purpose of limitation under The limitation Act ,1963. For the first contingency the period of limitation, as per Article 19 of the schedule of the limitation Act ,1963, is for the purpose 'money payable on money Digitally signed (SEEMA NIRMAL) by SEEMA MM-02 (Digital Court-02) NIRMAL SEEMA Date:
South West District Dwarka Courts/ND/17.03.2023 NIRMAL 2023.03.17 14:31:45 +0530 : 29 : NAND KISHORE SHARMA CC No. 21123/2021 Vs. CNR No. DLSW020449122021 JITENDER KUMAR KAUSHIK lent', is the period of 3 years from the date of 'when the loan is made'. whereas in second contingency i.e. like suit when the lender has given a cheque for money, is covered under Article 20 of the same schedule which is period of 3 years from the date when cheque is paid. In both the cases the period of limitation is 3 years. Thus date from which the period of limitation starts running is different for every payment made by the complainant. Even if it is considered that there was loan which was to be repaid to the complainant within after a period of one year as evidenced by the complainant in his evidence by way of affidavit (CW1/8), and the period limitation if starts running from 15.06.2013 (as alleged by complainant in his evidence as the date of repayment), then also the cheque in question is dated 20.06.2021 which is almost Eight years after date said date. Therefore, the debt in question had become time barred at the date of issuance of cheque, unless there is some contract in writing regarding the payment of time-barred debt u/s 25 (3) of the Indian Contract Act,1872 or there is some acknowledgment u/s 18 of the Limitation Act,1863 or there is part payment by the accused to the complainant u/s 19 of the Limitation Act before the expiry of the period of limitation.
28. U/s 25 (3) of the Indian contract Act a promise to pay a time barred debt is valid and enforceable debt, if it is made in writing and is (SEEMA NIRMAL) Digitally signed MM-02 (Digital Court-02) by SEEMA South West District SEEMA NIRMAL Dwarka Courts/ND/17.03.2023 NIRMAL Date:
2023.03.17 14:31:50 +0530 : 30 : NAND KISHORE SHARMA CC No. 21123/2021 Vs. CNR No. DLSW020449122021 JITENDER KUMAR KAUSHIK signed by the person to be charged therewith. There is no averment in the complaint or the affidavit Ex. CW1/X regarding any written contract between the parties for payment of the debt in question.
29. In his written argument the counsel for the complainant has cited many judgments in support of his case, I.e Hiten P. Dalal vs. Bratindranath Banerjee, (2001) 6 SCC 16, K.N. Beena vs. Muniyappan 2001(2) ALD(Crl.) 824, Rangappa vs. Sri Mohan, (2010) 11 SC 1898, G.L. Sharma vs. Hemant Kishor (dated 13 january 2015), T. Vasantha Kumar vs Vijaya Kumari (dated 28 april 2015). These judgments are with respect the presumption of section 139 NI Act, But in present as discussed earlier the debt was not a legally enforceable debt thus presumption does not become applicable present case because the requirements of section 138 NI Act, are not fulfilled so these judgements accordingly are not applicable to present case. Whereas the judgment supplied by the counsel for complainant of Suresh Chandra Goyal vs Amit Singhal 2015 LawSuit (Del ) 2361 (para 28,29,20,31) and Credential Leasing & Credits Ltd vs. Shruti Investments and Anr, 20l5 LawSuit(Del) 4148 are favoring the non-application of section 139 to present case as the debt, as per judgments, is required to be a 'legally enforceable debt' on 'date of the presentation of the cheque'. Judgment of Digitally signed (SEEMA NIRMAL) by SEEMA MM-02 (Digital Court-02) SEEMA NIRMAL South West District NIRMAL Date:
2023.03.17 Dwarka Courts/ND/17.03.2023 14:31:56 +0530 : 31 : NAND KISHORE SHARMA CC No. 21123/2021 Vs. CNR No. DLSW020449122021 JITENDER KUMAR KAUSHIK Lekhraj sharma vs Yashpal Gupta, 2015 VI AD Delhi 223, about non- mentioning of loan amount in ITR by the complainant is also not applicable to present as the presumption is not applicable to the case in hand. Another judgment cited by Ld. Counsel is V.S. Yadav vs. Reena 2010 Lawsuit (Del) 1928 (para 5) "5. It must be borne in mind that the statement of accused under Section 281 Cr. P.C. or under Section 313 Cr.
P.C. is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under Section 281 Cr. P.C. or 313 Cr. P.C. cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as evidence." This court is concurring with this aspect as statement under Section 281 Cr. P.C. or 313 Cr. P.C. is not evidence. It is clarified that as per Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513, "However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated."
Digitally signed (SEEMA NIRMAL)
by SEEMA
MM-02 (Digital Court-02)
SEEMA NIRMAL
Date: South West District
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Vs. CNR No. DLSW020449122021
JITENDER KUMAR KAUSHIK
Thus the evidence of the complainant can be taken into consideration for the final decision of the case.
30. It is a well settled principle of law that complainant has to stand on its own leg and prove its case beyond reasonable doubt. It has also been held by Hon'ble Supreme Court in Rahul Builders vs. Arihant Fertilizers and Chemicals and another, (2008) 2 SCC 321 that N.I. Act envisages application of the penal provisions which needs to be construed strictly. Therefore, even if two views in the matter are possible, the Court should lean in favour of the view which is beneficial to the accused. This is more so, when such a view will also advance the legislative intent, behind enactment of this criminal liability.
31. Coming back to the facts of the present case, as discussed above the debt was a time barred debt thus requirement of section 138 are not fulfilled accordingly, presumption under section 139 NI Act is not applicable to the present case.
32. Thus, in these circumstances, offence under Section 138 of the NI Act does not stand proved, Accused is hereby held not guilty and accordingly acquitted for the offence under Section 138 of the NI Act. Bail Digitally signed (SEEMA NIRMAL) by SEEMA MM-02 (Digital Court-02) SEEMA NIRMAL South West District Dwarka Courts/ND/17.03.2023 NIRMAL Date:
2023.03.17 14:32:18 +0530 : 33 : NAND KISHORE SHARMA CC No. 21123/2021 Vs. CNR No. DLSW020449122021 JITENDER KUMAR KAUSHIK bond and surety bond furnished by him before this court during trial stands cancelled and surety stands discharged and he be returned his original document, if any, taken on record for the said purpose. File be consigned to the record room.
Announced in the open court through video conferencing on 17.03.2023 in the presence of the accused. Digitally signed by SEEMA Dated:17.03.2023 SEEMA NIRMAL NIRMAL Date:
2023.03.17 14:32:30 +0530 (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND/17.03.2023 Note:- Certified that this judgment contains 33 pages and each page bears my signatures.
Digitally signed by SEEMA
SEEMA NIRMAL
Date:
(SEEMA NIRMAL)
MM-02 (Digital Court-02)
NIRMAL 2023.03.17
South West District
14:32:35
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