Delhi District Court
Hari Shanker Aggrawal vs Rajendra Prasad Garg on 4 April, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE,
(NEGOTIABLE INSTRUMENT ACT) -07, SOUTH, SAKET
COURTS, NEW DELHI
Presided over by: SH. RISHABH TANWAR
CT Cases 1566/2017
Hari Shanker Aggarwal Vs. Rajendra
Prasad Garg
A. CNR No. : DLST020027782017
B. Date of Institution : 24.04.2012
C. Date of commission of : 17.03.2012
offence
D. Name of the complainant : Sh. Hari Shankar Aggarwal
S/o Sh. Leeladhar Aggarwal
R/o H.no. 110, Sainik Farms,
Mehrauli, New Delhi
E. Name of the accused, his : Sh. Rajender Prasad Garg
parentage and address
S/o Sh. Ram Gopal
R/o H.no. 113, Sector-4,
Ballabhgarh, Faridabad, New
Delhi.
Offence complained of : Under section 138 Negotiable
Instruments Act, 1881
G. Plea of the accused : Pleaded not guilty and claimed trial.
H. Judgment reserved on : 12.03.2024
I. Date of Judgment : 04.04.2024
J. Final Order : ACQUITTAL
CT Cases 1566/2017
Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 1 of 35
Digitally
signed by
RISHABH
RISHABH TANWAR
TANWAR Date:
2024.04.04
14:08:28
+0530
BRIEF FACTS OF THE CASE:-
1. The instant matter has originated out of a complaint under Section 138 Negotiable Instruments Act (hereinafter referred to as 'NI Act'), filed by the complainant, namely Sh. Hari Shanker Aggrawal, against the accused Sh. Rajendra Prasad Garg, alleging that cheques bearing no. 032374 of Rs.28,90,000/- dated 10.02.2012 and cheque bearing No.032375 of Rs.20,12,856/- dt. 15.02.2012 both drawn on The South Indian Bank Ltd. Janakpuri, New Delhi branch was issued by the accused in favour of the complainant, in discharge of a loan. The above-mentioned cheques have been dishonored and the accused has not paid the said amount even after receiving the prescribed legal demand notice dated 13.03.2012. By virtue of this judgment, the present complaint is being disposed of.
2. It is the case of the complainant that he along with the accused has done some work of Cable lying in partnership in 2003 and for the said work account was done between complainant and accused on 20.07.2003. According to said account, a total sum of Rs.49,02,856/- was balance towards the accused that was to be paid to the complainant and accused assured that he would pay the same within three years and as complainant was close relative of accused, he agreed to the same but accused did not pay the said amount within the said period that was 3 years. Complainant demanded the said amount from accused but accused alongwith his wife came to his office address and requested to extend the period for three more years as accused was in great financial hardship at that time. It is further the case CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 2 of 35 Digitally signed by RISHABH RISHABH TANWAR Date: TANWAR 2024.04.04 14:09:33 +0530 of complainant that as accused is the husband of complainant's wife's sister, he again agreed to extend the time. Again, accused did not pay within the time and he demanded the said amount. Accused again with his wife came to his office address and with folded hand requested him that he could not manage the money and asked to extend time for further three years, but complainant refused saying that as he had already given six years' time but accused and his wife kept requesting for extension and complainant's wife Smt. Gayatri. Considering close relations with them, the complainant against agreed to further extend three years' time with a warning that if the amount was not paid by accused in given time, he would not give any further time and legal actions would be taken against him. After reminder of complainant in January, 2012, the accused handed over two cheques bearing No. 032374 of Rs.28,90,000/- dated 10.02.2012 and cheque bearing No.032375 of Rs.20,12,856/- dt. 15.02.2012 both drawn on The South Indian Bank Ltd. Janakpuri, New Delhi branch of an amount Rs.49,02,856/- in complainant's office address with assurance that same would be honoured 1st week of February 2012 and thereafter when the complainant presented the same with his banker i.e. Syndicate Bank, Ambedkar Nagar Dtc Depot, Khanpur, New Delhi which was dishonoured for the reason "account closed" vide return memos dt. 17.02.2012. The statutory legal notice dated 13.03.2012 was sent to the accused and same was returned served to the accused on 14.03.2012 and accused had replied to the same on 26.03.2012. The accused had failed to pay the same within the prescribed statutory period of 15 days, and consequently, the complainant filed the CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 3 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:09:43 +0530 present complaint against the accused u/s. 138 Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act").
3. Summons were issued against the accused vide order dated 22.06.2015. The accused entered his first appearance on 06.03.2017 and the substance of accusation under section 251 Criminal Procedure Code 1973 (hereinafter 'Cr.P.C.') was served upon the accused on 20.04.2017, where the accused has pleaded not guilty and stated that he had not issued the cheques in question to complainant. He further stated that cheques had been misplaced at Janakpuri Shopping Center in 2004. He further stated that he had already given information about the missing cheque book of series 323374 to 323400 at the Janakpuri PS. He further stated that he has no legal liability to pay the cheques amount to the complainant.
4. Complainant entered the witness box and examined himself as CW-1. On 22.06.2015, he tendered his evidence by way of affidavit as Ex. CW-1/11 and relied upon the documents namely:
a. Oath commissioner attested two pages of diary dt. 20.07.2023 Ex.CW1/1-1A (Colly) (OSR), b. Cheque bearing No.032374 dt. 10.02.2012 Ex.CW1/2, c. Cheque bearing No.032375 dt. 15.02.2012 Ex.CW1/3, d. Cheque return memos dt. 18.02.2012 Ex.CW1/4 & Ex.CW1/5, e. Legal demand notice dt. 13.03.2012 Ex.CW1/6, f. Courier receipt which is Ex.CW1/7, g. Reply of notice dt. 26.03.2012 Ex.CW1/8, CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 4 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:09:49 +0530 h. Returned envelop of speed post Ex.CW1/9.
5. CW-1 in his cross-examination stated that he knew Rajender Prasad since 1993. He further stated that he is his brother-in- law. He further stated that he worked with Rajender Prasad Garg in Mumbai around the year 1992. He worked with Rajender Prasad in partnership since nearby 1993 to 2003 and no partnership deed was prepared, it was verbal agreement, and no company was formed. He further stated that he had given him a company. He further stated that he did not have any interaction with accused during period of five years from 2012- 2017. He further stated that slips Ex.CW1/1 and Ex.CW1/1A were from diary and Ex.CW1/1A was signed by accused on 20.07.2003 and he had also signed upon the same, and heading of slip where God's name is mentioned was written by complainant. He admitted that they were writing all account in dairy but does not remember years of working since it started and all works related to accounts of company were based on these diaries only. He further admitted that there was no cashbook, daybook and GL were available. He denied that he stole the cheque and stated that accused had handed over the cheques to him, no one was present when accused gave the said cheques to him and no incident of theft happened. He also admitted that no record of demand of Rs.49,02,856/- available except Ex.CW1/1 and Ex.CW1/1A. He further stated that cheque in questions were handed over to him in January 2012 and were blank but signed. He further stated he did not remember whether cheque were blank and who had filled up the cheques and he cannot identify the writing upon the cheque.
CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 5 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date: 2024.04.04 14:09:55 +0530
He further stated that he did not advise accused when the cheque book was lost that he may register a complaint with police. He further stated the period of returning amount was mentioned in serial No.2 of legal notice i.e. three years only. He admitted that when the wife of accused had requested for extension of period for thrice, there was no other persons available except him and accused. He admitted that he had not taken any security or collateral security from accused and he further admitted that he did not write to accused for returning the amount, but he had reminded verbally. He further stated that he used to maintain the record regarding day to day regular transaction between him and accused. CW-1 shown documents to which he replied that he had prepared a dairy page dt. 09.02.08, other 4 pages which were enclosed with this diary page were fabricated and false. Documents were marked as Mark X1(Page 1 to 5). He further stated that other accounts except this amount had been prepared day to day by him. He further stated accused did not call him for any help seeking search out of stolen cheques. He further stated he was not working at the time on behalf of RL Construction except HS Constructions. He further stated that cheques pertaining to the case had been handed over to him by accused and he had not stolen those cheques and he was not aware of any FIR qua this cheque. He further stated that he had no other cheque except the cheques in question. Thereafter the complainant's evidence was closed.
6. The statement of accused U/s. 313 CrPC was recorded on 05.12.2017, wherein accused has stated that he had not done CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 6 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:10:00 +0530 any work in partnership with complainant on 20.07.2003. He further stated that his cheque book of cheque series 032374 onwards was misplaced and he had already lodged a complaint in PS Janakpuri on 03.01.2004 regarding missing of his cheque book. He further stated that he had no legal liability to pay the cheques amount to complainant. He further stated he had replied to the legal notice and averments in his reply were correct and he had never issued cheques to the complainant. the accused had chosen to lead defence evidence.
7. The accused thereafter examined himself as DW-1 on 21.04.2018, he stated that he and complainant were relatives and their wives were real sisters and he and complainant had worked together from 1993 to 2003 in NCR Area with different names of company like HS Construction, RL Construction Co, S Kumar Constructions. He further stated that out of above said companies RL Constructions Co was sole proprietorship firm and he was sole proprietor of the firm. He further stated that they were separated since March 2003 and at present they have no concern with each other in any matter. He further stated that all matters including financial liabilities and assets had been settled at the time of separation in March 2003 and no balance was outstanding against him. He further stated that on 03.01.2004, he alongwith Dinesh Bhardwaj and one other friend Than Singh Rawat went to Delhi in his car to purchase some material, during the purchase, his cheque book was lost from his car, cheque book bearing no.032374 to 032400 drawn on South Indian Bank were lost nearby District Center at Janakpuri. He further stated that he asked for help from CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 7 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:10:05 +0530 complainant being his relative and complainant advised him to register a FIR, they went to the PS and a FIR was registered u/s. 155 CrPC bearing No.01/2004 dt. 03.01.2004 Ex.DW1/1. He further stated that he followed the matter with the police, but it could not be traced out, lastly, he inquired from police through RTI about the status of his cheque book. All correspondence were exhibited in evidence as Ex.DW1/5. He further stated that police informed that all records relating to FIR had been destroyed and the matter pertains to civil nature. He further stated that during the working of the companies, whole work was carried out by complainant on basis of simple diaries and no such double entry system and modern accounts system were followed by complainant. He further stated that at time of separation, it was decided that these diaries would be kept at one place where both parties have trust and could be inspected by each of them as and when required, complainant did not hand over any diary till date despite his repeated requests from time to time and without these diaries, no records could be authenticated. He further stated that there were two brother-in-laws Sh. R.A. Aggarwal and Sh. R.N. Aggarwal who were directors of Vichitra Constructions Pvt Ltd., head office at A-1/31, Janakpuri, New Delh, they tried their best to settle out issues amicably alongwith Sh. O.P. Singhal also as they all were close relatives and there were arbitration/conciliation meeting held, awards were also finalized, one award was completed by accused and in other award, it was declared no claim against each other. He further stated that he had no liability against any type of cheque or any balances against the separation etc. He further stated that the CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 8 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:10:10 +0530 cheques were misused by complainant by stealing them from his cheque book. He further stated that accounts statement signed by complainant was Ex. DW-2, mutual settlement dt. 29.06.2014 in Hindi Ex. D-3, arbitration award Ex. DW-4, answer to his RTI application was Ex. DW-5 and Mark X-2 was copy of balance sheet/ITR filed by complainant.
8. In his cross-examination, DW-1 stated that after separation in year 2003, there were no dues payable by him to complainant.
He admitted that Ex.CW1/1 was written in his handwriting, wherein it is stated that he had to pay Rs.49,02,856/- to complainant, he voluntarily stated that it was in continuation of a diary and only one page was filed, and other pages were not filed. He further admitted that Ex.CW1/A bears his signatures at point A, he further stated it was not in his handwriting and he was not aware about the contents of Ex.CW1/A. He further admitted that Ex.CW1/A was signed by complainant at point B, he voluntarily stated that it would have been signed later on by complainant. He further stated that page no.37 of Ex.DW- 04 was not in his handwriting, it was in handwriting of arbitrator, he further stated he had not filed the said document before arbitrator, he further stated Ex.DW-04 was record of proceedings of arbitrator, he had given the reply to legal notice sent by complainant. Witness was shown para no.4 of Ex.CW1/8, stating that he had not written anywhere that his cheques had been lost in the market to which he stated that he had written that his cheques had been lost, he further stated that he usually kept some singed cheques with him but not the entire cheque book. He further stated that he came to know for first CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 9 of 35 Digitally signed by RISHABH TANWAR RISHABH Date:
TANWAR 2024.04.04
14:10:16
+0530
time in 2012 after dishonour of cheque that cheque was taken by complainant, he did not take any legal action against him as he was his close relative and complainant stated that there was no requirement of any legal action. He further stated that the issue as to cheque in question was also referred to arbitarator was because the entire dispute was referred to arbitration for adjudication. He further stated he did not know whether as per page No.7 of Ex. DW-04, arbitrator was asked to decided only two issues mentioned at point A & B of page and not about payment of cheques amount of the present complaint, he voluntarily stated that arbitration proceedings were related to mutual settlement dt. 29.06.2014 at page No.3 of Ex. DW-03. He admitted that in mutual settlement dt. 29.06.2014 at page No.3 of Ex. DW-03, there was no mention about amount of cheques in question, as there was no liability qua the cheques in question, therefore, there was no question of settlement. DW-1 admitted that two different pan cards have been mentioned two pages i.e. in ITR for AY 2012-13 and photocopy of one card, the pan cards were Ex.DW1/X1 and Ex.DW1/X2. He admitted that complainant never advised me in writing not to initiate legal action against him as he had taken cheques in question in year 2012. He further admitted that after he knew that complainant had taken cheques he never asked him to return the cheques to him in writing, he voluntarily stated that he had asked complainant telephonically several times to return his cheques. He further admitted that cheque in question bear his signatures, but remaining particulars were not in his handwriting. He denied the suggestion that he had worked with complainant after 2003, as settlement of accounts CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 10 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:10:21 +0530 with complainant at page no.2 of Ex. DW-02 dt.09.02.2008 shows, he denied it stating that it was not given by him it was in handwriting of complainant itself.
9. The accused also examined one DW-2, Bhumkika Banga deposed that she was working as Manager for last one year in South Indian Bank, Janakpuri Branch, New Delhi. She brought records pertaining to current account No..0359073000000043 of R.L. Constructions Ex.DW1/1(Colly) (9 pages) and record of account opening form Ex.DW1/2(Colly)(2 pages). She further stated that there was no procedure regarding status of previous cheque book whether lost/used etc. being following while issuing new cheque book, whenever they receive application for issuance of new cheque book, they issue the same after compliance of signature verification. In her cross-
examination, she admitted that it was mandatory that at the time of closing the bank account, bank requisite the unused leaf of cheques from the customer.
10. The accused also examined one DW-3, Sh. Ram Avtar Aggarwal deposed that he knew both the complainant and accused as they both are his brother-in-laws. He further stated he was not aware how cheques came into possession of complainant. He further stated that cheques belong to cheque book which got lost while the same was in possession of accused. He further stated that he was also aware of the fact that complaint was registered in police station Janakpuri, New Delhi. He further stated earlier both accused and complainant were doing business together and a dispute arose between them CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 11 of 35 Digitally signed by RISHABH RISHABH TANWAR Date: TANWAR 2024.04.04 14:10:26 +0530 in business and he, alongwith other family members and relatives sat with complainant and accused on 29.06.2014 to get dispute settled between the parties. He further stated as per settlement, accused agreed to pay Rs.50 lakhs to complainant and accused had informed him that he had already made payment of Rs.14 lakhs to complainant by cheque and attested copy of statement of account from 01.11.2015 to 30.11.2015 was Mark A, in addition to that, property of approx. Rs.36 lakhs was transferred by accused in name of complainant/family member. He further stated that as per accused, there was nothing remaining to be paid by accused to complainant as per his knowledge.
11. In his cross-examination, he stated that he was a businessman working as a govt. contractor and doing contract of gas pipe line, telephone line and sewer line and he got to know about dishonour of the cheques in question from his family members. He admitted that he had no personal knowledge. He admitted that in settlement dt. 29.06.2014 there was no settlement qua the cheques in question and according to settlement dt. 29.06.2014, he had to pay some amount to the complainant. He further admitted that he was not with accused at the relevant time when alleged cheque book was misplaced. He further admitted that settlement dt. 29.06.2014 for year 2007 to 2012 Ex.DW3, their accounts were settled on 21.04.2018. He admitted that there was business transaction between his firm and the firm of complainant as well as accused between year 2007 to 2012, at time of settlement they had settled the account from the year 2003 to 2014. He further admitted that he was CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 12 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:10:33 +0530 not the witness to any transaction regarding the property between accused and complainant. He further denied all other suggestions put to him.
12. The accused also examined DW-4 Sh. Dinesh Bhardwaj in his examination in chief deposed that accused is his family friend since last 25 years and he knows the complainant as he is brother-in-law of accused. He further stated that he had knowledge that some cheques of accused got lost in 2004 and he accompanied accused to police station where complaint was lodged regarding the lost cheques. He further stated that he recently got to know about lost cheques of accused being misused against him. He further stated that there was some dispute between complainant and accused for which repeated settlements were attempted and in 2008, the dispute was mutually settled between the parties as per which, complainant owed Rs.26,000/- to Rs.27,000/- to accused. He further stated that thereafter in 2014, dispute was mediated between parties by common relatives and a written settlement agreement arrived at and as per which, accused had to pay approx. Rs.50 lakhs to complainant. He further stated he also witnessed the said agreement; however, he did not sign the same, it was signed by the parties and relatives. He further stated in addition to the agreement, property of approx. Rs.36 lakhs was transferred by accused in the name of the younger daughter in law of complainant.
13. In his cross-examination, he admitted that no statement of his was recorded by police for loss of cheque. He further admitted CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 13 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:10:38 +0530 that he did not lodge any complaint with police in regard to the cheque, he voluntarily stated that he only accompanied the accused, he had not signed the aforesaid complaint. He further stated that he did not know the name of police official who recorded the complaint. He further stated that he was not the witness to any transfer of property to complainant by accused. He further denied all suggestions put to him.
14. Thereafter, the defense evidence was closed on 25.05.2023 and case was put for final argument.
ARGUMENTS ADVANCED ON BEHALF OF THE PARTIES
15. Sh. M.L. Chaudhary has argued and also filed written arguments to the effect that defence taken by the accused is contradictory and inconsistent. He has further argued that the liability of the accused was not time barred and was perfectly recoverable as per law and even otherwise, has placed reliance upon the judgments mentioned hereinafter to show that section 25(3) of Indian Contract Act, 1872 would make the cheques in question valid for prosecution under section 138 NI Act. He has further argued that the accused be convicted of the offence alleged against him. Ld. Counsel for the complainant has relied on the following judgements, namely:
a. A.V. Murthy v. B. S. Nagabasavanna (2002) 2 SCC 642 b. S. Natarajan v. Sama Dharman & Anr. (2021) 6 SCC 413 c. K. Hymavathi v. The State of Andhra Pradesh & Anr. Crl. Appeal No. 2743 of 2023.
CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 14 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date: 2024.04.04 14:10:43 +0530
d. Dr. K.K. Ramakrishnan v. Dr. K.K. Parthasaradhy & Anr. 2003 SCC OnLine Ker 420 e. Ramakrishnan v. Gangadharan Nair & Anr. 2006 SCC OnLine Ker 665 f. Rangappa v. Sri Mohan Crl. Appeal No. 1020 of 2010 g. Balu Sudamkhalde & Anr. v. The State of Maharasthra Crl. Appeal No. 1910 of 2010 h. NEPC Micon Ltd. & Ors. v. Magma Leasing Ltd. (1999) 4 SCC 253 i. Prabhu Dayal v. State of Jharkhand & Anr. 2009 SCC OnLinejhar 848.
16. Per contra, Sh. Vaibhav Garg , Ld. Counsel for the accused has argued and also filed written submissions to the effect that the cheques in question were lost and they must have been stolen by the complainant to file the present false case. He has further argued that there was no legal liability against the accused to pay the cheque amount to the complainant. He has also argued that the entries in the diary pages filed by the complainant cannot be relied upon as they are not supported with any bills, vouchers etc. He has also argued that the claim of the complainant was time barred and has argued that the case was not filed against the firm 'R.L. constructions and the complainant has not shown the amount in his income tax returns. Ld. Counsel for the accused has prayed that the accused be acquitted of the offence alleged against him and has placed reliance upon the following judgments:
a. CBI v. Vidya Charan Shukla (1998) 3 SCC 410 b. L.K. Advani v. Central Bureau of Investigation 66 CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 15 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:10:48 +0530 (1997) DLT 618 c. Krishna Janardhan bhat v. Dattatraya G. Hedge RCR 2008 (1) Vol. 81.
POINTS OF DETERMINATION
17. The following points of determination arise in the present case:
A. Whether the complainant has successfully proven the facts which would raise the presumption u/s. 118 r/w Section 139 of NI Act by proving that the cheques in question bears the signature of the accused?
B. If yes, whether the accused has been successful in raising a probable defence?
THE APPLICABLE LAW
18. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first. 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 CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 16 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:10:53 +0530 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 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 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 the payee or, as the case may be, to the holder in due 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" means a legally enforceable debt or other liability. It is well settled position of law that to constitute an offence under S.138 N.I. Act, the following ingredients are required to be fulfilled: (1) drawing 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 CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 17 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:10:58 +0530 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 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.
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 CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 18 of 35 Digitally signed by RISHABH TANWAR RISHABH Date:
TANWAR 2024.04.04
14:11:04
+0530
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]:
(i) Once the execution of cheque is admitted, Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, 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.
CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 19 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date: 2024.04.04 14:11:09 +0530
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 accused is admitted or proved by the complainant and thereafter burden is shifted upon the accused to prove otherwise. These 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. Therefore, here the onus shifts upon the accused to prove the nonexistence of debt or other liability. Section 139 of the N.I. Act uses the word "shall presume", which means that the presumption under Section 139 is rebuttable. Standard of proof: The standard of proof required to rebut the presumption under Section 139 is that of "preponderance of probabilities". Therefore, if the accused CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 20 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:11:14 +0530 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 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.
CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 21 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date: 2024.04.04 14:11:20 +0530
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 inherently unbelievable and therefore the prosecution cannot stand. In this situation the accused has nothing to do except to point inherent inconsistency in the version of the complainant or the accused can give his version of the story and say that on the basis of his version the story of the complainant cannot be believed.
FINDINGS OF THE COURT Points of determination number A:
19. The accused during the trial has neither disputed that the cheques (Ex. CW-1/2 and Ex. CW-1/3) were drawn on an account maintained by the accused nor the signature upon the same does not belong to him. Once the signature upon the cheques in question has been admitted by the accused either expressly or impliedly, the presumption u/s. 139 NI Act becomes operative in favour of the complainant. In another words, it is presumed that the holder of a cheque received the cheque of the nature, as mentioned in Section 138 NI Act, for the discharge, in whole or in part, of any debt or other liability.
20. Accordingly, the point of determination number A is decided in CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 22 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:11:25 +0530 the affirmative.
Points of determination number B:
21. Once the presumption is raised, the burden of proof shifts upon the accused to prove otherwise. It is trite law that the accused does not need to necessarily lead positive evidence in his or her favour, she can shift the said burden by blowing holes in the story of the complainant. Reliance is placed upon the judgment of Hon'ble Apex Court passed in Bharat Barrel and Drum Vs. Amin Chand Pyarelal (1999) 3 SCC 35. It is further pertinent to note that the standard of proof required to rebut the presumption u/s.139 NI Act is that of "preponderance of probabilities" and at the same time, the complainant is required to prove its case beyond the shadow of reasonable doubt.
22. Coming to the facts of the present case, it is the case of the complainant that when his and the accused's account were settled, a total liability of Rs. 49,02,856/- had accrued against the accused on 20.07.2003, however the accused had sought three years of time to pay the same. It is his further case that the accused made several demands of extension of the time to pay the said loan and ultimately, gave the cheques in question in January 2012, that is after 9 years of settling the account.
23. Now the question which becomes germane for the present discussion is to consider whether the liability of the accused can be considered to be a legally recoverable liability. It is clear from the explanation attached to section 138 NI Act lays down CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 23 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:11:30 +0530 that "For the purposes of this section (138), "debt or other liability" means a legally enforceable debt or other liability."
24. It has been alleged that the when the cheques in question were allegedly given by the accused to the complainant, the debt, as alleged by the complainant, had become time barred.
25. It is trite law that when the right to recover an outstanding debt is hit by limitation period and consequently becomes time barred, what essentially happens is that while the debt may still stand, however it becomes legally irrecoverable. In another words, no suit or any other action may lie to recover the said amount.
26. As per the schedule -I of period of limitations provided in the Limitation act 1963, article 26 provides that "For money payable to the plaintiff for money found to be due from the defendant to the plaintiff on accounts stated between them, the period of limitation is three years from the time when the accounts are stated in writing signed by the defendant or his agent duly authorised in this behalf. Even otherwise, if we consider the present facts to be falling under either article 1 or 5, the net effect is same i.e., the period of limitation would still be 3 years from the date of settling the accounts.
27. It is not the case of either parties in the present case that section 17 of Limitation Act would have any application as admittedly the cheques in question have been given after 9 years of settling the accounts between the accused and the complainant.
28. Ld. Counsel for the accused has relied upon section 25(3) of CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 24 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:11:36 +0530 Indian Contract Act 1872, which lays down "25(3). It is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits." Ld. Counsel has also relied upon the judgment of 'A. V. Murthy' (supra), 'S. Natarajan' (supra), 'K. Hymavathi' (supra), 'K.K. Radhakrishnan' (supra) and 'Ramakrishnan' (supra).
29. It is pertinent to note that 'S. Natarajan' (supra) relied upon 'A. V. Murthy' (supra), therefore, I will only deal with 'A. V. Murthy' (supra), which would automatically cover 'S. Natarajan' (supra). It is pertinent to note that the facts of 'S. Natarajan' (supra) do not apply to the present case, as in the said case the appellant therein had submitted year wise balance sheet prepared for every year subsequent to the advancement of loan and the loan advanced by the appellant to the respondents therein was duly brought forward and reflected, it had amounted to an acknowledgment and it was opined that the creditors might have a fresh period of limitation. Furthermore, the Hon'ble Apex Court did not express in final opinion on these facts. However, in the present case, no such balance sheets have been brought on record. Therefore the facts of A. V. Murthy' (supra) and 'S. Natarajan' (supra) are discernible from the present case.
30. As far as the case of 'K. Hymavathi' (supra) is concerned, it was a challenge to the judgment of the Hon'ble High Court of Andhra Pradesh quashing the summoning order of the learned CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 25 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:11:41 +0530 Magistrate in a case under Section 138 NI Act. It was quashed on the grounds of the debt being time-barred. The Hon'ble Supreme Court set it aside as the limitation of the promissory note relied on was wrongly calculated by the High Court and it was held that the High Court ought not to have exercised its extraordinary jurisdiction under Section 482 CrPC to decide a question of fact, which should be done by the Trial Court on the basis of evidence, as the summons already stood issued. In the present case, there exists no promissory note and thus the reliance on 'K. Hymavathi' (supra) is misplaced, the position being so different.
31. Lastly, the cases of 'Dr. K.K. Ramakrishnan' (supra) and 'Ramakrishnan' have been relied upon by the Ld. Counsel for the complainant, wherein after relying upon section 25(3) of Indian Contract Act 1872, the Hon'ble Kerela High Court had held that "It is, undoubtedly, true that 'to draw' means to write and sign. However, even if the claim is barred by limitation on the date of the drawing of the cheque, on delivery to the other person, it becomes a valid consideration for another agreement. The drawal of the cheque evidences such an agreement. This acknowledgement is enforceable. The drawing and delivery of a cheque create a legally enforceable liability.
Thus, we are of the opinion that when a person writes, signs and delivers a cheque to another it is an acknowledgment of a legally enforceable liability. Thereafter, if the cheque is dishonoured on account of insufficiency of funds such a person shall not be entitled to plead that at the time of his writing the cheque the claim had become barred by limitation and, thus, he CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 26 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:11:47 +0530 is not liable to be punished under Section 138."
32. In the most humble way and with utmost respect, the opinion of this court differs on this aspect only on the basis that judgments of other Hon'ble High Court who are not our parent High Court, have only a persuasive value and not binding upon the court. Under section 138 NI Act, there are primarily two events, which the complainant must prove, apart from other requirements:
a. An existing debt or any other liability and when read together with the explanation under section 138 would mean, a legally recoverable debt or liability. b. A cheque in question in discharge of the aforesaid liability.
33. Now to say a cheque drawn for an expired cause of action is another agreement and this fresh agreement can be made enforceable, would amount to reading what is not present in section 138. Section 138 presumes a legally recoverable debt.
What happens to a stale cause is that though the debt exists but it become unenforceable - legally unenforceable, meaning a person can still pay the amount if his conscience asks him or by any other means, but the complainant cannot seek remedy in law. There is no doubt the cheque is a contract, but what section 138 NI Act seeks to enforce is a cheque which is drawn in discharge of a legally recoverable debt or any other liability and not a contract/agreement. If the event (a) is not satisfied, event (b) will perish. This cheque might become a foundational fact in any other suit or legal remedy, but would be infructuous CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 27 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:11:54 +0530 for the purposes of section 138 NI.
34. This court finds its strength from the judgment of our own parent Hon'ble Delhi High Court titled as 'Vijay Polymers (P) Ltd. v. Vinnay Aggarwal, 2009 SCC OnLine Del 1075', wherein the complainant therein had given a loan of INR 6,00,000/- to the accused person on 01.02.2002, which was to be repaid in six months. The accused person made part-
payment of INR 1,00,000/- in May, 2006. Thereafter, a cheque dated 05.05.2007 was issued for further part-payment, which got dishonoured and became the subject matter of a complaint under Section 138 NI Act, the summoning order of which was impugned before the High Court in a quashing petition. The hon'ble High Court had placed reliance upon the judgment of Hon'ble Apex Court dated 10.09.2001 in 'Sasseriyil Joseph v. Devassia [SLP (Cr.) 1785 of 2001]', wherein the Hon'ble Supreme Court dismissed the challenge to the acquittal in a 138 NI Act trial upheld by the Hon'ble High Court of Kerala in Joseph v. Devassia, 2000 SCC OnLine Ker 460. The Court upheld the acquittal on the ground that the cheque in question having been issued by the accused for a due which was barred by limitation, the penal provision of Section 138 NI Act was not attracted.
35. The Hon'ble High Court had held that that "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 CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 28 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:12:00 +0530 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 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, CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 29 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:12:05 +0530 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. In the light of Explanation to the said section, 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. (Emphasis supplied)
36. It is pertinent to note that in the aforesaid case, a similar argument of application of section 25(3) Indian Contract Act, 1872 was raised and rejected by the Hon'ble Delhi High Court. It is further pertinent to note that our Hon'ble Delhi High Court have consistently places reliance upon the judgement of 'Vijay Polymers' (supra) in 'Prajan Kumar Jain v. Ravi Malhotra, 2009 SCC OnLine Del 3383', then in 'Jage Ram Karan Singh v. State, 2019 SCC OnLine Del 9486'.
37. Therefore, coming to the facts of the present case, it is admitted fact that the accounts between the complainant and the accused were got settled in 2003 and the cheques in question were given in January 2012, almost after 9 years of the aforesaid settlement. Though CW-1 had stated in his testimony that he had extended the time on request made by the accused, no written document or any other evidence have been brought on record to show that the accused had sought for extension of time to pay the liability within three, so as to have an effect of CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 30 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:12:11 +0530 extension of the period of limitation under section 18 of Limitation Act, 1963.
38. Therefore, it has now become crystal clear that the so called liability of the accused towards the complainant had become time barred on the date of drawing of the cheques in question and consequently, the debt for which the cheques in question (Ex. CW-1/2 and Ex. CW-1/3) were drawn to discharge, cannot be termed as a legally recoverable liability. Therefore, it cannot be said that the accused had issued cheques in discharge of a legally recoverable liability against him. Therefore, the accused is liable to be acquitted on this count only, however this is not the only factor.
39. Accused has also taken a defence that he had lost his cheque book containing his cheque bearing no. 032374 to 032400 issued from South Indian Bank near District Centre at Janakpuri and that he had filed a lost report in the police station NCR no. 01/2004 dated 03.01.2004 (Ex. DW-1/1). It is a matter of record that the cheques in question bore number 032374 and 032375. Ld. Counsel for the complainant had argued that it was a forged and fabricated document as the such format (Ex. DW- 1/1) are easily available on the internet and the accused might have taken out such a print out and filed the same before the court.
40. While it is true that the best way to prove Ex. DW-1/1 would have been to summon the record keeper from the PS concerned, who would have brought the register for the NCR of the year concerned and Ex. DW-1/1 would have stood corroborated.
CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 31 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date: 2024.04.04 14:12:17 +0530
However, the accused had brought on record the original reply received against his RTI application and proved the same as Ex. DW-1/5, wherein the reply reads "As per record of P.S. Janak Puri, the information/complaint for the lost of cheques were lodged in the year 2004 and record of the NCR for the year 2004 has been destroyed vide order no. 2234/HAR/West dated 25.03.2015...." (sic). The fact that the reply reads '...were lodged...' would show that NCR was in fact lodged. Accused lead his defence in the year 2018 as per record and it would not have been possible for him to call for the record of the NCR concerned, as the same stood destroyed in the year 2015, as per the reply of the RTI received by the accused (Ex. DW-1/5). It is further pertinent to note that when the accused was cross- examined under section 315 Cr.P.C. by the complainant, not even a single suggestion was given to DW-1 that Ex. DW-1/1 was a forged and fabricated document, therefore, this argument of the Ld. Counsel for the complainant cannot be entertained at this stage. Therefore, Ex. DW-1/1 had remained unrebutted during the trial and the same raises a plausible doubt on the story of the complainant that the cheques in question were given by the accused to the complainant in discharge of a liability and has demonstrated that the same were lost by the accused.
41. It is further pertinent to mention that the complainant has relied upon, for the purposes of this complaint, only on a single evidence namely Ex. CW-1/A, which are copies of the diary pages running into two pages, which is titled as 'summary 20/7/03'. These diaries are hand-written diaries. It is pertinent CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 32 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:12:23 +0530 to note that evidence brought before the court must inspire confidence and should be without any doubt. The complainant had not brought on record the complete diaries. He did not prove any bills/ invoices or any other written document or record to show that accused had incurred a liability of Rs. 49,02,856. CW-1 admitted in his cross-examination that there were no cashbooks, daybook, GL available. The accused had categorically denied his liability towards the complainant since the first time he had recorded his defence under section 251 Cr.P.C., and he had also taken a defence the cheques in question were lost. Since the onus upon the complainant is to prove his case beyond the shadow of reasonable doubt, the burden upon the accused under section 139 NI Act could have been shifted only on the basis of preponderance of possibility, the complainant should have brought more evidence to prove that the liability had existed against the accused on the date of presentation of cheque. To the dismay of this court, Ex. CW- 1/1 are grossly insufficient and lacks any probative value. It is also pertinent to note that mere admission of signature upon the diaries by the accused would not amount to admission of the entire content of Ex. CW-1/1.
42. It is also pertinent to note that ld. Counsel for the complainant has highlighted contradictions in the stand taken by the accused and in his testimony recorded during the trial. It is pertinent to note that there is no bar under the Criminal Jurisprudence for taking inconsistent defence. The only caveat is that the different defences taken by the accused should not be so mutually destructive that the existence of one defence, if proved, would CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 33 of 35 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:12:28 +0530 automatically negate the existence of the other defence. Therefore, the fact that the accused had taken a defence that the cheques in question have been lost and had also deposed that the cheques might have been stolen by the complainant cannot be termed as mutually destructive, though could be called inconsistent with each other.
43. Therefore, this court, on the basis of the above discussion relating to the liability in question being time barred, the fact that the accused had demonstrated that the cheques in question had been lost and failure of the complainant to bring on record cogent evidences in support of his case, had come to the conclusion that the accused has been able to shift his burden under section 139 NI Act on the basis of preponderance of probability. The onus was upon the complainant to prove his case beyond the shadow of reasonable doubt, which he had, in the considered finding of this court, failed to prove.
44. Accordingly, the point of determination number B is decided in the affirmative.
CONCLUSION
45. In view of the aforesaid discussion, the accused Rajender Prasad Garg is hereby held 'not guilty' and consequently acquitted of the offence under section 138 NI Act.
46. This judgment contains 35 pages. This judgment has been pronounced by the undersigned in the open court and each page bears the signatures of the undersigned.
CT Cases 1566/2017 Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 34 of 35Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.04.04 14:12:34 +0530
47. Let a copy of the judgment be uploaded on the official website of District Courts, Saket forthwith.
Digitally
Announced in the open court signed by
RISHABH
on this Court on 04th Day of April, 2024 RISHABH TANWAR
TANWAR Date:
2024.04.04
14:12:41
+0530
(Rishabh Tanwar)
MM (NI Act)-07/South District,
Saket District Court
CT Cases 1566/2017
Hari Shanker Aggrawal Vs. Rajendra Prasad Garg Page 35 of 35