Delhi District Court
Ashok Kumar Khanna vs . on 28 May, 2014
IN THE COURT OF SH. RAVINDER SINGHII, METROPOLITAN
MAGISTRATE (NI) ACT - 07
DWARKA COURTS, NEW DELHI.
Case No. : 3388/13
Unique Case ID No: 02405R0142032013
Ashok Kumar Khanna
R/o A203, Fakhruddin Apartment,
Plot No. 18, Sector10,
Dwarka, New Delhi. .............COMPLAINANT
Vs.
Pardeep Kumar Khanna
R/o 123, Vasundhra Apartments,
Sector9, Rohini,
New Delhi. 110085 .....................ACCUSED
Date of Institution: 24.05.2013
Plea of the accused: Pleaded Not Guilty
Date of Reserving Judgment: 11/04/2014
Date of Judgment: 28/05/2014
Sentence/final Order: Acquitted
JUDGMENT
1. By way of present judgment I shall decide the present complaint case under Section 138 of Negotiable Instrument Act 1881 (as amended up to date, herein after said as NI Act) filed by the complainant Ashok Kumar Khanna against the accused Pardeep Kumar Khanna FACTS OF THE PRESENT COMPLAINT CASE
2. The factual matrix as per the allegations in the complaint which are necessary for disposal of the present case are that, the accused approached the complainant for monetary help in January, 2010 as the accused was in dire need of money and the complainant without doubting the intention of the accused gave him the loan amount as CC No. 3388/13 Ashok Kumar Khanna Vs. Pardeep Kumar Khanna Page1/16 the accused is the real brother of the complainant. It is further alleged that in total the complainant granted a loan of 40, 00,000/ to the accused. It is further alleged that out of the said loan amount Rs 32,60,000/ was paid by the complainant to the accused by way of cheques on different dates and the amount of Rs. 7,45,000/ was paid by the complainant to the accused by way of cash. Details of the alleged payment made by the complainant to the accused as per complaint is reproduced below:
Serial Cheque No. Date of issue Name of issue Date of Amount in No. Bank clearing Rupees 1 210574 23.01.2010 State Bank of 29.01.2010 40,000/ Patiala Shastri Bhavan, New Delhi 2 210576 01.02.2010 do 03.02.2010 1,00,000/ 3 210580 16.02.2010 do 18.02.2010 40,000/ 4 210583 21.03.2010 do 06.04.2010 50,000/ 5 210585 30.04.2010 do 03.5.2010 50,000/ 6 210588 11.06.2010 do 14.06.2010 50,000/ 7 210593 30.06.2010 do 02.07.2010 50,000/ 8 210598 18.08.2011 do Amount 50,000/ withdrawn by Pradeep Khanna 9 210600 01.09.2011 do do 60,000/ 10 210601 01.09.2011 do 03.09.2011 5,00,000/ 11 210604 21.10.2011 do 24.10.2011 2,00,000/ 12 210605 21.10.2011 do Amount 50,000/ withdrawn by Pradeep Khanna 13 210606 02.12.2011 do do 20,000/ 14 210599 19.11.2011 do 03.12.2011 5,00,000/ 15 210612 09.12.2011 do 20.12.2011 7,00,000/ 16 210609 12.12.2011 do 20.12.2011 2,00,000/ 17 210610 15.12.2011 do 23.12.2011 6,00,000/ Total 32,60,000/ CC No. 3388/13 Ashok Kumar Khanna Vs. Pardeep Kumar Khanna Page2/16 Details of payments made through Cash by complainant to accused Serial No. Date Amount 1 23.07.2010 50,000/ 2 13.08.2010 25,000/ 3 20.08.2010 35,000/ 4 17.09.2010 40,000/ 5 27.09.2010 25,000/ 6 06.10.2010 20,000/ 7 13.10.2010 20,000/ 8 26.10.2010 20,000/ 9 01.11.2010 40,000/ 10 15.11.2010 10,000/ 11 23.11.2010 20,000/ 12 24.11.2010 10,000/ 13 04.12.2010 20,000/ 14 14.12.2010 30,000/ 15 03.12.2011 20,000/ 16 08.02.2011 15,000/ 17 17.02.2011 1,00,000/ 18 14.03.2011 50,000/ 19 30.03.2011 25,000/ 20 11.04.2011 20,000/ 21 16.05.2011 15,000/ 22 20.06.2011 80,000/ 23 28.06.2011 10,000/ 24 23.07.2011 20,000/ 25 11.08.2011 20,000/ Total 7,45,000/
3. It is further alleged that the accused assured and promised to repay the said loan within the stipulated time and on these assurances and undertakings the complainant gave a loan of Rs. 40,00,000/ to the accused. It is further alleged that after availing the loan the accused CC No. 3388/13 Ashok Kumar Khanna Vs. Pardeep Kumar Khanna Page3/16 was very irregular in timely repayment of the loan and despite repeated request of the complainant the accused failed to adhere to the schedule of repayment of the loan amount thereby committing default in clearing the loan amount. It is further alleged that after several verbal and personal request of the complainant the accused in order to discharge his loan liability has issued three cheques bearing No. 731571, 731572 and 731573 dated 01.01.2013, 10.01.2013 and 01.02.2013 respectively amounting to Rs. 7,00,000/ 8,00,000/ and 8,00,000/ respectively all drawn on Allahabad bank, Paschim Vihar branch in favour of the complainant. It is further alleged that while handing over the cheques to the complainant the accused assured the complainant that the said cheques would be honoured however on presentation of the same all the cheques were dishonored vide separate cheque returning memos dated 15.03.2013, 18.03.2013 & 20.03.2013 all with the remarks "Funds Insufficient". The complainant thereafter has given a legal notice of demand dated 12.04.2013 to the accused which was sent to the accused by the registered post on 13.04.2013 and the same was served upon the accused thereby calling upon the accused to make the payment of the cheques amount. It is alleged that the accused has failed to pay any sum in response to the legal demand notice as a result of which the complainant has filed the present complaint for prosecution of the accused U/s 138 of the NI Act.
4. After complaint was filed, the complainant Ashok Kumar Khanna has lead his pre summoning evidence by way of an affidavit and after hearing the Ld. Counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused by the Court vide order dated 01.06.2013 for the offence U/s 138 of NI Act. On appearance of the accused a separate notice U/s 251 Criminal Procedure Code (herein after said the Code) dated 27.07.2013 was given to the accused to which he pleaded not guilty and claimed trial. Thereafter, an opportunity to file an application U/s 145 (2) of NI Act was given to the accused. Thereafter CC No. 3388/13 Ashok Kumar Khanna Vs. Pardeep Kumar Khanna Page4/16 Ld. Counsel for the accused moved an application U/s 145 (2) of NI Act and the same was allowed and the case was listed for cross examination of the complainant.
COMPLAINANT'S EVIDENCE
5. Sh Ashok Kumar Khanna, the complainant got himself examined as CW1 and adopted his evidence affidavit Ex. CW1/A. CW1 also relied upon documents Ex. CW1/1 to Ex. CW1/9. Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 are the original cheques in question. Ex. CW1/4, Ex. CW1/5 and Ex. CW1/6 are the Cheque returning memos. Ex. CW1/7 is the legal notice of demand dated 12.04.2013. Ex. CW1/8 is the registered post receipt vide which the aforesaid notice was sent. Ex. CW1/9 is the reply of the accused. CW1 was cross examined by the Ld. Counsel for the accused. Thereafter, the complainant's evidence was closed at request.
STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CODE
6. After Complainant's evidence the statement of accused was recorded U/s 313 of the Code in which all the incriminating evidence were put to the accused Pardeep Kumar Khanna. The accused stated that he and the complainant are real brother but he denied that he has taken any loan of Rs. 40,00,000/ from the complainant. It is further submitted by the accused that he has taken a loan of Rs 27,00,000/ from the complainant in September 2011 as he needed the same. It is further submitted by the accused that prior to September 2011 also he used to have financial dealings with the complainant and he has repaid that amount. The accused further admitted that he has taken 32,60,000/ from the complainant by way of cheques on different occasions. The accused also stated that no amount of Rs. 7,45,000/ was taken by him in cash from the complainant. The accused further stated that he has given the signed cheques in question to the complainant in year September 2011 as a security at the instance of the complainant at the time of taking of the loan of Rs. 27,00,000/ .
CC No. 3388/13 Ashok Kumar Khanna Vs. Pardeep Kumar Khanna Page5/16The accused further stated that the cheques in question were presented by the complainant without informing him. The accused further admitted the receipt of the legal demand notice and stated that he has even replied the same. The accused further stated that he owes no liability towards the complainant and the complainant by misusing his security cheques has filed the present complaint case. The accused all together denied all his liability.
DEFENCE EVIDENCE
7. Thereafter, the case was fixed for defence evidence. Accused has examined himself as DW1 and relied upon certificate Ex. CW1/D1 issued by the complainant in his favour and complaints made by him to the police Ex. DW1/A, Ex. DW1/B and Ex. DW1/C. DW1 was duly cross examined by the Ld Counsel for the complainant. Thereafter, defence evidence was closed at request of the accused and the case was listed for final arguments.
FINAL ARGUMENTS
8. Final arguments were addressed on behalf of both the parties. I have heard the Ld. Counsels for both the parties and have given my anxious and thoughtful consideration to submissions made, further I have also perused the entire record carefully. Before proceeding further it is imperative for me to go through the relevant provisions of law "138. Dishonour of cheque for insufficiency, etc., of funds in the account: Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with CC No. 3388/13 Ashok Kumar Khanna Vs. Pardeep Kumar Khanna Page6/16 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 purpose of this section, "debt or other liability" means a legally enforceable debt or other liability.
APPRECIATION OF EVIDENCE IN THE LIGHT OF THE INGREDIENTS OF SECTION 138 OF THE NI ACT AND THE DEFENCE RAISED BY THE ACCUSED
9. It is not disputed by the accused that the cheque's in question Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 are drawn on the account maintained by him. Further signature's on the cheques in question Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 have also not been disputed by the accused. Therefore, In light of the evidence on record it stands duly proved that the cheques in question Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 were issued by the accused from his own account and the same are also signed by the accused. Further the presentation, dishonor of the cheques in question Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 and the cheque returning memos Ex. CW1/4, Ex. CW1/5 and Ex. CW1/6 have also not been challenged by the accused. Therefore, considering the entire evidence on record it also stands duly proved that the cheques in question Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 were dishonored vide cheque returning memos Ex. CW1/4, Ex. CW1/5 and Ex. CW1/6 respectively all with the reason "Funds Insufficient". Further the CC No. 3388/13 Ashok Kumar Khanna Vs. Pardeep Kumar Khanna Page7/16 receipt of the legal demand notice Ex. CW1/7 has also been admitted by the accused. The accused has also stated that he has even replied the legal demand notice given by the complainant. The reply of the accused is also placed on record by the complainant as Ex. CW1/9. Therefore, it also stands proved that the legal demand notice Ex. CW1/7 was duly served upon the accused and the same has also been replied by the accused.
10. Perusal of the entire evidence reveals that only defence which has been taken by the accused is that he has taken loan from the complainant in September, 2011 and has repaid the same and the signed cheques in question Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 have been issued by him to the complainant in September 2011 as security and not in order to discharge the loan liability as alleged by the complainant .
11. The crux of penal liability under Section 138 of the NI Act is that the Cheque in question must be issued for the discharge of any legal debt or liability. Existing of legal debt or liability is sine qua non for constituting the offence.
12. Before I advert to the above said defence taken by the accused, it is imperative for me to notice the provisions of Sections 118(a) and 139 of the NI Act which read as under:
"118. Presumptions as to negotiable instruments.-- Until the contrary is proved, the following presump tions shall be made
(a) of consideration.--that every negotiable instru ment was made or drawn for consideration, and that every such instrument when it has been accepted, in dorsed, negotiated or transferred, was accepted, in dorsed, negotiated or transferred for consideration;"
"139. Presumption in favour of holder.--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.
13. The Division bench of Hon'ble Supreme Court in Krishna Ja CC No. 3388/13 Ashok Kumar Khanna Vs. Pardeep Kumar Khanna Page8/16 nardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54, has held that the accused can discharge the burden of presumption U/s 118 and U/s 139 of the NI Act by raising a probable defence on the strength of 'preponderance of probabilities' and 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 relies.
14. In RANGAPPA versus SRI MOHAN AIR 2010 SC 1898 the Hon'ble Supreme Court has held that it is a settled position that when an accused has to rebut the presumption under Section 139, the stan dard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which cre ates doubts about the existence of a legally enforceable debt or liabili ty, the prosecution can fail. The accused can rely on the materials sub mitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused need not even adduce evi dence of his/her own.
15. From the reading of the above said provisions and the judg ments the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) and Section 139 of the NI Act would arise that it is supported by a con sideration. Such a presumption is rebuttable. The accused can prove the nonexistence of a consideration by raising a probable defence. If the accused discharges the initial onus of proof showing that the ex istence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the Complainant who will be obliged to prove it as a matter of fact and upon its failure to prove would disenti tle him to the grant of relief on the basis of the negotiable instrument. The burden upon the accused of proving the nonexistence of the consideration can be either direct or by bringing on record the pre ponderance of probabilities by reference to the circumstances upon which he relies. In case, where the accused fails to discharge the initial CC No. 3388/13 Ashok Kumar Khanna Vs. Pardeep Kumar Khanna Page9/16 onus of proof by showing the nonexistence of the consideration, the complainant would invariably be held entitled to the benefit of pre sumption arising under Section 118(a) and Section 139 of the NI Act in his favour
16. Coming back to the present case, in the case in hand it is the case of the complainant that in the month of January, 2010 the accused has approached him for financial assistance and as the accused was his real brother loan of Rs. 40,00,000/ lakhs was granted by him to the accused. From the complaint it is also evident that there was no single transaction of loan between the complainant and the accused and in fact loan was allegedly granted by the complainant to the accused on different occasions starting from the year 2010 till the year 2011. Further it is the case of the complainant that after several verbal and personal request of the complainant the accused has issued the cheques in question Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 in discharge of his loan liability. Throughout the trial the accused has admitted that he was having regular financial transactions with the complainant but the accused also stated that he has cleared his earlier loan and has taken a fresh loan of Rs. 27,00,000/ from the complainant in September 2011 which has also been cleared by him and the blank signed cheques in question Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 have been issued by him as a security to the complainant in the year September 2011 and not in discharge of his loan liability as alleged by the complainant. To corroborate his stand apart from cross examining the complainant (CW1) the accused has also examined himself a DW1. During the Course of arguments Ld Counsel for the accused also argued that the new loan transaction between the complainant and the accused has taken place in the year September 2011. It is further argued by the Ld Counsel for the accused that the cheques in question Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 were also handed over by the accused to the complainant as a Security at the time of taking of loan in the year September 2011. Ld. Counsel for the complainant further submitted that the reply of the accused Ex. CW1/9 placed on CC No. 3388/13 Ashok Kumar Khanna Vs. Pardeep Kumar Khanna Page10/16 record by the complainant also reiterates that the cheques in question Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 were given by the accused to the complainant as security.
17. During the cross examination of the complainant as CW1 a certificate Ex. CW1/D1 dated 08.09.2010 issued by the complainant in favour of the accused is placed on record by the accused which has been admitted by the complainant. On perusal of the said certificate it is revealed that the same is certificate given by the complainant to the accused stating that the accused has repaid his loan taken from the complainant through cheque and cash from time to time and the accused is not having any outstanding as on 08.09.2010. However interestingly the complainant in his complaint has also relied on loan granted by him to the accused prior to 08.09.2010. Therefore the arguments of the accused that he has repaid his earlier loan and has again taken a new loan from the complainant find force as there is no occasion for the complainant to issue the said certificate Ex. CW1/D1 dated 08.09.2010 in favour of the accused.
18. Now coming to the question as to when the cheques in question Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 were handed over by the accused to the complainant. Interestingly, the said question is answered from the bare perusal of the legal demand notice Ex. CW1/7 placed on record by the complainant which shows that the Cheques in question Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 were handed over by the accused to the complainant at the time of execution of an agreement between the complainant and the accused on 29.09.2011 and not after several verbal and personal request of the complainant as alleged in the complaint. The relevant portion of the legal demand notice CW1/7 is reproduced hereunder:
"......Therefore a total sum of Rs. 40,00,000/ (fourty lacks) was given as loan to you.
3. That further in lieu of the this payment, a receipt cum agre e ment was executed between the you and my client on CC No. 3388/13 Ashok Kumar Khanna Vs. Pardeep Kumar Khanna Page11/16 29 th Septe m ber 2011 at Delhi.
4. That along with the said agreement you also issued six post da t ed cheques which also included the interest part of Rs. 7 lakhs. You offered that in case of failure of repayment of the said amount, and in case you fail to give monthly instal ments, finally, my client will be entitled to recover the amount of 40,00,000/ along with interest of Rs. 7 lakhs . The details of the said cheques as follows: 731571, for Rs 7 Lakhs 731572, for Rs 8 Lakhs 731573, for Rs 8 Lakhs 731574, for Rs 8 Lakhs 731575, for Rs 8 Lakhs 731576, for Rs 8 Lakhs"
All checks were from your Saving Bank Account No. 20417342896 maintained with Allahabad Bank, Paschim Vi har, New Delhi
5. That you failed to pay monthly installment and neither you paid any part of the said loan amount. Despite repeated requested of my client, you did not give any heed to his re quests......"
"7. That h aving no other option my client deposited cheques in his bank................."
19. Therefore, from the perusal of the Legal Demand Notice Ex. CW1/7 it is patently clear that an agreement was executed between the complainant on 29.09.2011 and the cheques in question Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 have also been handed over by the accused to the complainant at the same time along with the said agreement. Further it also stand proved that the loan was to be repaid by the accused in monthly installments and not through post dated Cheques. Interestingly the execution of the agreement dated 29.09.2011 has also been admitted by the complainant (CW1) during his cross examination. The relevant portion of the same is reproduced hereun der:
".........It is correct that an agreement was executed between me and the accused on 29.09.2011 as mentioned in para 3 of my legal demand notice Ex. CW1/7..........."
20. Surprisingly this agreement dated 29.09.2011 has never been brought on record by the complainant. The complainant has not given CC No. 3388/13 Ashok Kumar Khanna Vs. Pardeep Kumar Khanna Page12/16 any plausible explanation as what prevented him from bringing the said agreement executed between the parties on record especially when the cheques in question Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 have been handed over by the accused to the complainant at the same time along with the said agreement dated 29.09.2011. This clearly shows the contradictions in the stand of the complainant from his stand taken in the Complaint and the evidence affidavit which never talks about any agreement. Therefore, the stand of the complainant losses ground as it is evident that the complainant has concealed ma terial facts and has also not approached the Court with clean hands.
21. Now what needs to be considered is whether these post dated cheques in question Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 which were handed over by the accused to the complainant at the time of execu tion of the agreement dated 29.09.2011 would be for the discharging of any existing legal debt or liability or not?
22. In Shanku Concrete Pvt. Ltd. Vs. State of Gujrat, 2000, Crl.L.J. 1988= 2000 (3) Crimes 602 the Hon'ble Gujrat High Court held that if the post dated cheques are issued as collateral security for due performance of the contract then on its dishonour no offence is made out. In that case, the accused took loan to be returned after six months after agreement. Accused also issued post dated cheques of the due date. The Hon'ble Court held that when the cheques were given there was no liability or debt as the liability was to accrue after the expiry of six months from the taking of the loan. So the post dated cheques given earlier were mere a collateral security without any debt or liability, so on the basis of dishonour of cheques no offence is made out and it was only a civil liability.
23. Therefore, it is trite to say that the dishonour of cheque issued against the existing debt or liability only attracts the offence U/s 138 of the NI Act. Any cheque issued against the future uncertain debt or liability or as advance cannot become the basis of prosecution of the CC No. 3388/13 Ashok Kumar Khanna Vs. Pardeep Kumar Khanna Page13/16 offence U/s 138 of NI Act.
24. In the case in hand also it is evident from the evidence on record that the loan was to be repaid in monthly installments and the post dated cheques in question Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 were handed over by the accused to the complainant in the September, 2011 i.e. at the time of execution of the agreement dated 29.09.2011 thereby making it clear that the cheques in question have been given as collateral security. Further the said post dated cheques have been presented for payment which formed the subject matter of the present complainant case. So it is clear, that the cheques in question Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 were not towards any existing debt or liability. From the evidence adduced and the documents placed on record by the complainant it is clear indicative of the fact that the cheques in question Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 were given as a security to the complainant.
25. Therefore the accused has been able to raise probabilities and rebut the presumption raised against him from the documents placed on record by the complainant himself, as it is clear that the cheques in question Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 have been issued by the accused in the year 2011 simultaneously at the time of execution of the agreement dated 29.09.2011 and that too as a security and cheques issued for the purpose of security does not fall within the purview of Section 138 of the NI Act.
26. The Hon'ble Supreme Court in M.S.Narayana Menon @Mani Vs. State of Kerala & Anr, 2006 (6) SCC 39 has held that if the Cheque is issued as security then the same would not attract the criminal lia bility U/s 138 of NI Act
27. Therefore, I hereby hold that cheques in question Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 were not issued by the accused in discharge of any existing legal debt or liability, same being the security cheques.
CC No. 3388/13 Ashok Kumar Khanna Vs. Pardeep Kumar Khanna Page14/1628. All the aforesaid circumstances/factors rebut the presumptions provided under Section 139 of the NI Act because they raise credible doubt over the veracity of the complainant's claims and satisfy the test of rebuttal on the strength of preponderance of probabilities thereby weakening the claim of the Complainant. Furthermore a statutory presumption under Section 139 of NI Act though has an evidentiary value, the question as to whether the presumption stood rebutted or not must be determined keeping in view the other evidences on record. The defence raised by the accused is sufficient to discharge the initial burden of proof raised on him. This court do not find any force in the arguments advanced by the learned counsel for the Complainant that the accused has failed to rebut the presumption under Section 139 of the NI Act. Presumptions are not in itself evidence but it only enables a party in whose favour it exists to show that he has a prima facie case. In the case in hand the presumptions under section 139 of NI Act alone cannot be the sole basis to prove the case of the complainant. The materials and evidence available on the record brought by the complainant do not bridge the gap. Therefore, I hereby hold that the complainant has not been able to prove and substantiate the allegations that the cheques in question Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 were issued by the accused in discharge of his legal debt or other liability.
29. Furthermore, mere non payment of cheques amount within 15 days of receipt of legal notice is not itself sufficient to fasten any liability U/s 138 of the NI Act as it is established that the cheques in question Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 were not issued by the accused in discharge of his legal liability.
30. Accordingly, In view of the facts, evidence lead by both the parties coupled with my discussion above, I hereby hold that the Complainant has not been able to prove and substantiate its allegation against the accused and all the ingredients for the offence under section 138 of the NI Act have not been proved against the accused. Accordingly, CC No. 3388/13 Ashok Kumar Khanna Vs. Pardeep Kumar Khanna Page15/16 accused Pardeep Kumar Khanna S/o Sh. Madan Lal Khanna is hereby acquitted for the offence u/s 138 NI of the Act.
File be consigned to record room after due compliance.
This Judgment contains 16 pages and every page of this judgment has been signed by me.
Announced in the open Court (RAVINDER SINGH II)
Dated 28.05.2014 MM (NI Act 07)
Dwarka/New Delhi.
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