Delhi District Court
Cc No. 543012/2016 Atul Wadhwa vs Mahavir Sethia 1 Of 22 on 29 September, 2021
IN THE COURT OF MS. SAKSHI JAISWAL,
MM05 (NI ACT)/ CENTRAL/THC/DELHI
In case of:
SH. ATUL WADHWA
R/o 1593A, RANI BAGH
NEAR AGGARWAL SWEET
NEW DELHI 110034 .............. Complainant
VERSUS
SH. MAHAVIR SETHIA (HUF)
THROUGH ITS KARTA
SH. MAHAVIR PRASAD SETHIA
S/o SH. SHIV PARKASH SETHIA
DESHNOK, BIKANER,
RAJASTHAN334801
ALSO AT
DRIPLEX WATER ENGINEERING LTD.
VEENA REFINARY
POST AGASOD, DISTRICT SAGAR, (M.P) ..... Accused
Digitally
signed by
SAKSHI
SAKSHI JAISWAL
JAISWAL Date:
2021.09.29
14:49:13
+0530
CC No. 543012/2016 Atul Wadhwa Vs Mahavir Sethia 1 of 22
JUDGMENT
a) CNR No. : DLCT020224392016
b) Sl. No. of the cases : 543012/2016
c) Date of institution of the cases : 03.11.2008
d) Offence complained of : 138 NI Act
e) Plea of the accused : Pleaded not guilty
f) Arguments heard on : 23.09.2021
g) Final order : Acquittal
h) Date of Judgment : 29.09.2021
JUDGMENT
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE: FACTUAL MATRIX
1. This is a complaint case filed under Section 138 of Negotiable Instrument Act (hereinafter referred to as "NI Act") by Atul Wadhwa against Mahavir Sethia (HUF) through its karta Mahavir Prasad Sethia. It is the case of the complainant that he had friendly relations with the accused and in the month of December, 2007, the accused approached the complainant for friendly loan as the accused had suffered loss in business. The complainant contends that on the assurances given by the accused that Digitally CC No. 543012/2016 Atul Wadhwa Vs Mahavir Sethia 2 of 22 signed by SAKSHI SAKSHI JAISWAL JAISWAL Date:
2021.09.29 14:50:03 +0530 he will return the loan amount, the complainant advanced him a loan of Rs. 6,25,000/ on 02.01.2018 and because the complainant trusted the accused, he did not obtain any receipt of the loan. He further contends that at the time of receiving the loan, the accused issued a postdated cheque bearing no. 533785 dated 30.07.2008 for a sum of Rs. 6,25,000/ (Rupees Six Lakh TwentyFive Thousand only) drawn on Punjab National bank, Shakurbasti, Sainik Vihar, Delhi 110034 (hereinafter referred to as the "cheque in question") in favour of the complainant. That when the complainant presented the said cheque in his bank, it was returned to the complainant vide return memo dated 05.09.2008 with remarks "funds insufficient", whereafter, the complainant issued a legal demand notice dated 20.09.2008 through Registered AD/UPC which was sent on 26.09.2008, and which was served on the accused. That after service of demand notice, accused failed to pay the amount within the statutory period and, hence, the present complaint.
PROCEEDINGS BEFORE THE COURT
2. On a prima facie case being made out against the accused, the cognizance was taken on 17.12.2009 and the accused was summoned. On his appearance, notice under Section 251 Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") was framed against the accused on 09.05.2011 to which he pleaded not guilty and claimed Digitally signed by SAKSHI JAISWAL SAKSHI Date:
JAISWAL 2021.09.29 14:50:21 +0530 CC No. 543012/2016 Atul Wadhwa Vs Mahavir Sethia 3 of 22 trial. Thereafter, the accused moved an application under Section 145(2) NI Act to crossexamine the complainant, in which he raised the defence that the accused had given a signed cheque book to her wife and the cheque in question belonged to the same cheque book which was misplaced and the complainant has misused the cheque in question. The application of the accused was allowed on 01.09.2011 and matter was fixed for crossexamination of the complainant.
3. Thereafter, the complainant lead its evidence in which the complainant tendered his affidavit in post summoning evidence as CW1/1. He reiterated the contents of his complaint in his affidavit and relied upon the following documents: Ex. CW1/A: Cheque bearing no. 533784 dated 30.07.2008 Ex. CW1/B: Return memo dated 05.08.2008 Ex. CW1/C: Legal Notice dated 20.09.2008 Ex. CW1/D: Registered AD receipts dated 26.09.2008 Ex. CW1/E: UPC Ex. CW1/F: AD Card
4. CW1 was crossexamined at length by the Ld. Counsel for the accused. After his crossexamination, CW 1 was discharged and CE was closed on 27.07.2017. It would be more appropriate to discuss the crossexamination of the complainant while appreciating the evidences advanced by both the parties. SAKSHI Digitally signed by SAKSHI JAISWAL JAISWAL Date:2021.09.29 14:50:44 +0530
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5. Thereafter, statement of accused was recorded under Section 313 CrPC on 08.10.2018 where all the incriminating evidence was put to the accused. In response, the accused denied the evidences against him and reiterated the defence taken by him in his application u/s 145(2) NI Act. He further said that the cheque book, containing the cheque in question, was issued by the bank in March 2008, while the case of the complainant is that the cheque in question was given to him by the accused in January 2008. The accused admitted his signatures on the cheque but denied filling rest of the particulars on the cheque. With respect to legal demand notice, the accused first said that he had received the notice and had also replied to the same. However, he again said that he did not receive the legal demand notice from the complainant, but he received a copy of the notice along with summons from the court.
6. Pursuant thereto, the accused lead defence evidence in which he got examined himself as DW1 and a bank witness, Sh. Pawan Kumar Aggarwal, SWO, Punjab National Bank, Branch Sainik Vihar, Pritampura as DW2.
In his examination as DW1, the accused stated that he does not know the complainant and he never took any loan from him. He further stated that he had given signed cheque book, containing the cheque in question, to his wife for daytoday expenses, which was misplaced when he SAKSHI Digitally signed by SAKSHI JAISWAL JAISWAL Date:
2021.09.29 14:51:09 +0530CC No. 543012/2016 Atul Wadhwa Vs Mahavir Sethia 5 of 22 shifted from Delhi to Bina and that he also lodged a complaint in this respect in Bina. He further stated that in Delhi, he was a tenant of one Sh. Khushi Ram, who was a friend of the complainant. He also stated that the aforesaid cheque book was issued in March 2008, which is later than the date on which the cheque in question is stated to be received by the complainant. In his crossexamination, DW1 stated that he has not filed on record the original complaint with respect to the lost cheque book although he has the original with him, and that he has filed only a photocopy of the complaint. He denied receiving the legal notice dated 20.09.2008 Ex. CW1/C but admitted the correctness of the first address mentioned on the legal notice. However, after denying the suggestion that he lodged a false complaint on receiving the legal notice in order to save himself from the liability, the accused admitted to having received the legal notice but after lodging of the complaint. He further denied issuing any cheque to the complainant including the cheque in question. During the crossexamination, DW1 was shown another cheque bearing no. 107844 dated 06.08.2008 amounting to Rs. 6,50,000 drawn in State Bank of Indore which was Ex. DW1/C1. DW1 admitted his signatures on this cheque. He denied that he initially issued the cheque Ex. DW1/C1 at the time of taking money from the complainant and that he later issued the cheque in question in July 2008 with the assurances that this cheque will be honored. He denied that he, complainant and Khushi Ram Digitally signed by SAKSHI SAKSHI JAISWAL JAISWAL Date:
2021.09.29 14:51:30 +0530 CC No. 543012/2016 Atul Wadhwa Vs Mahavir Sethia 6 of 22 used to deal in share market together. He admitted that he has not filed any case against the complainant for misusing the cheque in question.
Thereafter, DW2 was summoned along with the record showing the date when the cheque book containing the cheque in question was issued by the bank. The same was produced and exhibited as EX DW2/B. DW2 was cross examined in which he denied that certificate written at the footnote of the documents is not in accordance with Section 65B Evidence Act. He further denied that the cheque in question is not from the cheque book issued on 19.03.2008. He stated that the bank does not issue any kind of letter for issuance of cheque book and that he has not brought any record to show that the cheque book was delivered to the accused.
7. The DE was closed on 11.12.2019. Thereafter the matter was fixed for final arguments.
ARGUMENTS
8. Ld. Counsel for the complainant submitted that accused has admitted his signatures on the cheque as well as dishonour of cheque and receipt of legal notice, and as such, presumption under NI Act with respect to existence of legal debt or liability arises in his favour.
9. Per contra, Ld. Counsel for the accused submitted that the accused had lost his cheque book containing the signed cheque in question and the same has been misused by the complainant. Ld. Counsel for the accused also argued that Digitally signed by SAKSHI SAKSHI JAISWAL JAISWAL Date:
CC No. 543012/2016 Atul Wadhwa Vs Mahavir Sethia 7 of 22 2021.09.29 14:51:47 +0530 as per the allegations of the complainant, the cheque in question was given to him by the accused in January 2008 when the alleged loan was advanced, however, the cheque book containing the said cheque was issued by the bank to the accused in March 2008. Counsel for the accused further submitted that the aforesaid defence of the accused stands proved through the bank record produced by DW2 which is Ex. DW2/B and which clearly shows that said cheque book was issued on 19.03.2008, which, thereby, means that the cheque in question was not with the accused in January 2008. This fact alone disproves the receipt of cheque by the complainant and, consequently, the liability of the accused u/s 138 NI Act. He has further argued that the fact of advancement of the loan has been disproved by the various contradictions in the testimony of the complainant and furthermore, that the complainant did not even have the financial capacity to give loan of Rs. 6,25,000/.
10. In response to this, Ld. Counsel for the complainant submitted that initially another cheque bearing no. 107844 drawn on State Bank of Indore dated 06.08.2008 amounting to Rs. 6,25,000/ was issued by the accused at the time of taking the loan but the said cheque had bounced due to use of double sign and when this fact was informed to the accused, he then issued the cheque in question to the complainant. He also submitted that due to inadvertence, this fact could not be mentioned in the Digitally signed SAKSHI by SAKSHI JAISWAL JAISWAL Date: 2021.09.29 14:52:07 +0530 CC No. 543012/2016 Atul Wadhwa Vs Mahavir Sethia 8 of 22 complaint. Ld. Counsel also pointed out that the accused has never lodged any complaint against the complainant for the alleged misuse and has also not replied to the legal notice of demand sent by the complainant to the accused. Ld. Counsel further argued that the complainant has successfully proved all the ingredients of the offence u/s 138 NI Act and the evidence lead by the accused does not rebut the presumption raised in favour of the complainant by virtue of Section 118 read with Section 139 NI Act.
11. I have heard counsel for both the parties, perused the record and have gone through the relevant provisions of the law.
INGREDIENTS OF THE OFFENCE AND DISCUSSION
12. At this stage, it would be relevant to discuss the relevant provisions of law in order to ascertain the legal standard required to be met by both the parties. In order to establish an offence under Section 138 of Negotiable Instrument Act, the complainant must prove the following ingredients: First Ingredient: The cheque was drawn by a person on an account maintained by him for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period Digitally signed by SAKSHI SAKSHI JAISWAL JAISWAL Date:
2021.09.29 14:52:26 +0530 CC No. 543012/2016 Atul Wadhwa Vs Mahavir Sethia 9 of 22 of its validity;
Second Ingredient: The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability;
Third Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;
Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank;
Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
APPRECIATION OF EVIDENCE
13. The accused can only be held guilty of the offence under Digitally signed by SAKSHI SAKSHI JAISWAL JAISWAL Date:
2021.09.29 14:52:40 +0530 CC No. 543012/2016 Atul Wadhwa Vs Mahavir Sethia 10 of 22 Section 138 NI Act if all of the abovementioned ingredients are proved by the complainant.
14. There is no dispute qua the fact that the cheque in question was drawn by the accused on the account maintained by him and the same was presented for encashment within its validity period. Thus, first ingredient stands proved. It is also not disputed that the cheque in question was dishonoured due to insufficiency of fund, as the same has not been denied by the accused in his examination u/s 313 CrPC. Thus, third ingredient stands proved. As far as receipt of legal notice (Ex. CW1/C) is concerned, the accused has denied receiving the same. However, the accused has not disputed the genuineness and the correctness of the postal receipts and AD card (Ex. CW1/D, Ex. CW1/E, Ex. CW1/F respectively) in his examination u/s 313 CrPC. He further admitted in his crossexamination that he received legal notice after lodging of the complaint with respect to loss of the cheque in question. Therefore, receipt of legal notice and, consequently, fourth ingredient also stands proved. There is no dispute either with respect to fifth ingredient. As such, the first, third, fourth and fifth ingredients of the offence under section 138 NI Act stands proved against the accused.
15. Thus, the only remaining ingredient of the offence u/s 138 NI Act and which is the main bone of contention between SAKSHI Digitally signed by SAKSHI JAISWAL Date: JAISWAL 2021.09.29 14:52:58 +0530 CC No. 543012/2016 Atul Wadhwa Vs Mahavir Sethia 11 of 22 both the parties is that whether there was any legally enforceable debt or liability of the accused towards the complainant. In the present case, the issuance of the cheque in question is not denied and the accused has admitted his signatures on the cheque. As per the scheme of the NI Act, once the accused admits signature on the cheque in question, certain presumptions are drawn in favour of the complainant, which result in shifting of onus. Section 118(a) of the NI Act lays down the presumption that every negotiable instrument was made or drawn for consideration. Another presumption is enumerated in Section 139 of NI Act. This provision lays down the presumption that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability.
16. The combined effect of these two provisions is a presumption that the cheque was drawn for consideration and given by the accused for the discharge of debt or other liability. Both the sections use the expression "shall", which makes it imperative for the court to raise the presumptions, once the foundational facts required for the same are proved. Reliance is placed upon the judgment of the Hon'ble Supreme Court, Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16.
17. Further, it has been held by a threejudge bench of the Digitally signed by SAKSHI JAISWAL SAKSHI Date:
JAISWAL 2021.09.29 14:53:16 +0530 CC No. 543012/2016 Atul Wadhwa Vs Mahavir Sethia 12 of 22 Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption contemplated under Section 139 of NI Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence. The principles pertaining to the presumptions and the onus of proof were recently summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC418 as under:
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner:
25.1. 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.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to Digitally signed by SAKSHI SAKSHI JAISWAL JAISWAL Date:
2021.09.29 14:53:31 +0530 CC No. 543012/2016 Atul Wadhwa Vs Mahavir Sethia 13 of 22 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.
25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come in the witness box to support his defence."
18. The presumptions raised under Section 118(b) and Section 139 NI Act are rebuttable presumptions. A reverse onus is cast on the accused, who has to establish a probable defence on the standard of preponderance of probabilities to prove that either there was no legally enforceable debt or other liability.
19. In the present case, the accused has raised the following defences in order to rebut the presumption raised u/s 118 read with Section 139 NI Act: I. Defence of non advancement of loan It is the case of the accused that the complainant has filed a false case and he had never given any loan to the accused. In order to prove this defence, the accused crossexamined SAKSHI Digitally signed by SAKSHI JAISWAL JAISWAL Date:
2021.09.29 14:53:48 +0530 CC No. 543012/2016 Atul Wadhwa Vs Mahavir Sethia 14 of 22 the complainant. During his crossexamination, the complainant deposed that he was friends with Khushi Ram to whom the accused had requested for a loan and Khushi Ram had introduced the accused to him. He further deposed that Khushi Ram and the accused had jointly told him that accused needed the money for investing in the share market.
Both of these statements of the complainant are in direct contradiction with the evidence of the complainant contained in the affidavit wherein it was stated that the accused had approached the complainant for loan as the accused was suffering from financial crisis. Complainant had not even mentioned Khushi Ram in his complaint, let alone state that he had advanced loan to the accused at the instance of Khushi Ram. He further failed to examine Khushi Ram in his support.
As there is no independent witness of the alleged transaction and no documentary evidence to prove the same, then these circumstantial and connected facts become relevant in order to give credibility to the allegations of the complainant and they should be established beyond reasonable doubt. However, these facts are itself shrouded in a cloud of mystery due to contradictory statements made by the complainant at different instances. Veracity of the statement made by the complainant in his affidavit evidence qua these facts is, Digitally signed by SAKSHI JAISWAL SAKSHI Date:
JAISWAL 2021.09.29 14:54:05 +0530 CC No. 543012/2016 Atul Wadhwa Vs Mahavir Sethia 15 of 22 hence, not established. Consequently, a doubt is cast upon the allegation of the complainant of advancement of loan due to these factual lacunaes.
II. Defence of financial incapacity of the complainant to advance loan The accused has raised this further defence that the complainant did not have the financial capacity to advance a loan of Rs. 6,25,000/ as his annual income at the relevant time was Rs. 1.5 lakh per annum.
Here, it would be relevant to refer to the case of Basalingappa vs. Muudibasappa (supra), wherein the Hon'ble Supreme Court observed that a complainant in a cheque bounce case is bound to explain his financial capacity, when the same is questioned by the accused, by leading evidence to that effect. Further, in the case titled as Sheela Sharma vs. Mahender Pal (2016 SCC Online Del 4696), it was observed by the Hon'ble Delhi High Court that:
"31. In cases where the complainant claims to have advanced a friendly loan in cash, and where the transaction of loan is not evidenced by any other documentary or other reliable evidence, no doubt, the aspect whether the availability of funds in cash with the complainant/lender, and its advancement as loan to the accused have been reflected in the income tax returns of the complainant/lender, or not, become relevant. If, the availability of funds, and the loan transaction itself is not so reflected, that factor is taken note of by the Court as relevant to hold that the presumption under Section 118 SAKSHI Digitally signed by SAKSHI JAISWAL Date: JAISWAL 2021.09.29 14:54:26 +0530 CC No. 543012/2016 Atul Wadhwa Vs Mahavir Sethia 16 of 22 and 139 of the NI Act stands rebutted. However, these considerations would not be relevant, where loan transaction itself is otherwise established, either through documentary evidencesuch as, a receipt or a loan agreement, or acknowledgement executed by the accused, or by oral evidence of an independent witness who is found to be credible."
Coming to the present case, initially, the complainant had deposed in his crossexamination that his yearly income is approximately Rs. 8 lakhs. However, in his further cross examination, the complainant contradicted this statement by saying that his annual income is Rs. 22.5 lakh and prior to 3 years, his annual income was Rs. 1.52.5 Lakh. Thus, apart from casting a doubt on the credibility of the witness, these contradictions also raises a doubt with respect to the financial capacity of the complainant to advance a loan of Rs. 6,25,000/, especially when there is no receipt or any other documentary evidence on the record to prove the same, or any independent witness to the alleged transaction. The complainant also did not produce his ITR in order to prove his ability to advance the loan amount. It would also be relevant to mention here that the complainant had also stated in his crossexamination that he had given the loan to the accused after taking loan from one Naresh Sharma. This fact has nowhere been mentioned by the complainant in his evidence by way of affidavit nor there is any other evidence of it on record, neither has complainant examined Naresh Sharma for the purpose of proving the availability of funds with him to Digitally signed by SAKSHI SAKSHI JAISWAL JAISWAL Date:
2021.09.29 14:54:58 +0530 CC No. 543012/2016 Atul Wadhwa Vs Mahavir Sethia 17 of 22 give as loan to the accused. This court finds it hard to fathom that a person with an annual income of around Rs 2 lakhs would be able to advance a loan of Rs. 6,25,000/. Even if the court believes that the annual income of complainant was Rs. 8 lakhs, then also it seems improbable that complainant could advance such a hefty loan of an amount of Rs.6,25,000/, that to without any documentation or receipt. Thus, complainant failed to prove its financial capacity to pay the loan.
III. Defence of nonexistence of cheque at the time of advancement of loan It has been submitted by the accused that the cheque book containing the cheque in question was issued to the accused by the bank in March 2008 and that the case of the complainant is that the cheque in question was handed over to the complainant at the time of advancement of loan i.e., on 02.01.2008. Ld. Counsel for the accused has argued that as the cheque in question was issued by the bank itself in March 2008, then it could not have been handed over by the accused to the complainant 2 months before and as such, the case of the complainant is false and accused is liable to be acquitted. In order to further substantiate his defence, the accused lead defence evidence in which he summoned bank witness along with the record of issuance of Cheque book, containing cheques from no. 533781 to 533800, to the account in the name of the accused. The Digitally signed by SAKSHI SAKSHI JAISWAL JAISWAL Date:
2021.09.29 14:55:14 +0530 CC No. 543012/2016 Atul Wadhwa Vs Mahavir Sethia 18 of 22 bank witness, Sh. Pawan Kumar Aggarwal (DW2) produced the summoned record which was Ex. DW2/B. The document bears the stamp of the bank along with the certificate of the senior manager as to the correctness of the record. As per this document the date of issue of the cheque book containing 20 leaves and starting with cheque no. 533781 is 19.03.2008.
It would be apposite to reiterate here that the cheque in question bears no. 533785 and as per the summoned record, the same would be part of the cheque book issued on 19.03.2008. It has been categorically stated by the complainant in his complaint as well in his evidence by way affidavit and then again admitted in his cross examination, that the loan was given to the accused on 02.01.2008 and the cheque in question was given to the complainant by the accused at the time of giving of the loan. Now, in view of the new fact brought to light by the evidence of DW2 that the cheque in question was essentially not even in existence on 02.01.2008, the case of the complainant completely falls apart as the giving of the cheque by the accused to the complainant is itself disproved.
Here it would also be appropriate to refer to the submissions of the complainant visàvis that the at the time of the loan another cheque bearing no. 107844 drawn on State Bank of Indore dated 06.08.2008 amounting to Digitally signed by SAKSHI SAKSHI JAISWAL JAISWAL Date:
2021.09.29 14:55:27 +0530 CC No. 543012/2016 Atul Wadhwa Vs Mahavir Sethia 19 of 22 Rs. 6,25,000/ was issued by the accused to the complainant, and the cheque in question was, in fact, given later on after the initial cheque was returned dishonored and that due to inadvertence this fact could not be brought on record at the time of filing of complaint. The aforesaid cheque bearing no. 107844 (Ex. DW1/C1) was also put to the accused in his crossexamination. The accused admitted his signatures on Ex. DW1/C1 but denied that this cheque was issued initially at the time of loan.
Perusal of the complaint would show that there is not even a whisper of the aforesaid cheque (Ex.DW1/C1) in the entire document. As already pointed out that the complainant had on three separate occasions stated that the cheque in question was given at the time of advancement of loan to the accused, but then at the fag end of the trial, the complainant took the stand that the cheque in question was given later and not at the time of loan. The latter submissions of the complainant appear to be completely false and an afterthought as the complainant had good 10 years to bring these new alleged facts on record. It is not merely a clarification, but here, the complainant has contradicted his own averments and allegations which goes to the root of the matter.
CONCLUSION
20. Cumulatively, the whole case of the complainant has Digitally signed by SAKSHI JAISWAL SAKSHI Date:
JAISWAL 2021.09.29 14:55:40 CC No. 543012/2016 Atul Wadhwa Vs Mahavir Sethia 20 of 22 +0530 fallen apart because of contradictions in his testimony and evidences lead by the accused in his defence. The accused successfully rebutted the presumption of consideration u/s 118 read with section 139 NI Act by raising a doubt on the very factum of the loan as well as issuance of cheque to the complainant. And as per the settled law, this is all that what is required, as preponderance of probabilities is not a rigorous standard of proof, but only so much evidence as makes the court lean in, in favour of one side and not the other.
21.Once these presumptions are rebutted, the onus shifts back on the complainant to prove the existence of legally enforceable debt or liability. Although, complainant has argued that the accused has not lodged any complaint against the complainant for the alleged misuse of the cheque, the same is not enough to discharge the complainant of his burden to prove the case beyond reasonable doubt. It is a settled position of the law that the case of the complainant should stand on its own legs. It cannot take advantage of the weakness of the defence, nor can the court, on its own make out anew case for the prosecution and convict the accused on that basis. It is of paramount importance to demand evidence of unambiguous, impeccable and of unimpeachable in nature so as to entail criminal conviction of the accused. In order to pass a conviction in a criminal case, the accused ''must be'' guilty and not merely ''may be'' guilty. The mental Digitally signed by SAKSHI JAISWAL SAKSHI Date:
JAISWAL 2021.09.29 14:55:55 +0530 CC No. 543012/2016 Atul Wadhwa Vs Mahavir Sethia 21 of 22 distance between ''may be'' guilty to ''must be'' guilty is a long one and must be travelled not on surmises and conjectures, but by cogent evidence.
22.Thus, in view of the totality of the circumstance and the settled legal positions as discussed above, the case attempted to be built by the complainant, appears to be suffering from fatal infirmities. The material on record does not suggest that the accused ''must be'' guilty whichever way one looks at it. The present case appears to be a fit case where benefit of doubt can be extended to the accused. Accordingly, in view of the above discussions, this court hold that the complainant has failed to prove his case beyond reasonable doubt. The accused has been able to rebut the presumption under Section 118 and 139 NI Act arising in favour of the complainant.
23.As a result, accused Sh. Mahavir Prasad Sethia stands acquitted from the offence u/s 138 NI Act.
Digitally signed by SAKSHI JAISWAL SAKSHI Date:
JAISWAL
Announced in the open court 2021.09.29
14:56:15
+0530
on 29th September, 2021
(Sakshi Jaiswal)
MM05(NI Act), (Central)
Tis Hazari Court/Delhi
29.09.2021
CC No. 543012/2016 Atul Wadhwa Vs Mahavir Sethia 22 of 22