Delhi District Court
C. P. Singh vs . Vinod Prasad on 29 October, 2021
IN THE COURT OF MS. ARUSHI PARWAL, METROPOLITAN MAGISTRATE
(NI ACT)-02, CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CNR No. : DLCT020013862016
CC No. : 510612/2016
U/s: 138 N. I. Act
P.S: Timarpur
C. P. Singh vs. Vinod Prasad
JUDGMENT
1. Sl. No. of the case : 510612/2016
2. Date of institution of the case : 28.05.2016
3. Name of complainant : C. P. Singh
S/o Late Sh. Randhir Singh
R/o H. No.S-2, Ganpati
Apartments, Baba Colony, Burari,
Delhi - 110084
4. Name of accused, parentage
and address : Vinod Prasad
S/o Sh. Jaipal Prasad
R/o B-181, Arjun Nagar, Nangli
Vihar, Najafgarh, New Delhi -
110043
5. Offence complained of : 138 N. I. Act
6. Plea of accused : Accused pleaded not guilty
7. Final order : Acquitted
8. Date on which order was
reserved : 20.09.2021
9. Date of pronouncement : 29.10.2021
Digitally signed
ARUSHI by ARUSHI
PARWAL
PARWAL 15:36:55
Date: 2021.10.29
+05'30'
CC No.: 510612/16 1/15 C. P. Singh vs. Vinod Prasad
BRIEF REASONS FOR DECISION OF THE CASE
Factual Background of the case:
1. Briefly stated facts of this case as per complaint are that as the accused knew the complainant and was having good friendly relations as well as well visiting terms since last more than 10-12 years, the accused had won the confidence of the complainant. In the first week of January 2016, the accused approached the complainant to give him a friendly loan of Rs.15,00,000/- (rupees fifteen lakhs) for his extreme personal need for his business for a period of four months only. It has been further stated that having taken into consideration friendly relations with the accused and further having trust and faith upon the accused, the accused received a friendly loan of Rs.15,00,000/- in the second week of January, 2016 from the complainant with assurance to return the same in the month of April, 2016. It has been further stated that the accused had also given original documents of his property bearing property No. B-181, Arjun Nagar, Nangli Vihar, Najafgarh, New Delhi-110043, to the complainant, to keep the same for security purpose till the aforesaid friendly loan was returned by the accused. The complainant had assured the accused that after receiving the aforesaid loan amount from him, all original papers of the accused would be returned.
2. It has been further stated that in order to repay the above friendly loan, the accused had also given/issued two post-dated cheques bearing No.675042 dated 21.04.2016 and cheque bearing No.675043 dated 29.04.2016 for Rs.7,50,000/- each, both drawn on State Bank of India, Branch Nangli Sakarawati, New Delhi and the accused had assured to the complainant that the said cheques will be honoured on their presentation. As per assurance of accused, the complainant presented the aforesaid cheque bearing No.675042 dated 21.04.2016 of Rs.7,50,000/- with his banker i.e., United Bank of India, Timarpur Branch, Delhi but the same was returned with remark "Insufficient Funds" vide return memo dated 25.04.2016. Thereafter, the complainant also presented the aforesaid another cheque bearing No. 675043 dated 29.04.2016 of Rs.7,50,000/- with his banker i.e., United Bank of India, Timarpur Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2021.10.29 15:37:20 +05'30' CC No.: 510612/16 2/15 C. P. Singh vs. Vinod Prasad Branch, Delhi but the same was also returned with remark "Insufficient Funds" vide return memo dated 02.05.2016. It has been further stated that after the fate of the said cheques, the complainant contacted the accused but the accused bluntly refused to make the payment to the complainant which shows that the accused intentionally and deliberately cheated the complainant and had no intention to pay the said amount to the complainant and had issued the said cheques knowing fully that the accused had insufficient funds in his account. On finding no other alternative, the complainant sent a legal notice dated 06.05.2016, by registered post, through his counsel, which was duly served upon the accused and instead of making payment, the accused had sent a false and vague reply of the notice through his counsel. The accused has thus committed the offence punishable under Section 138 of Negotiable Instrument Act, as amended up to date. Hence, the present complaint was filed under Section 138 of Negotiable Instruments Act (NI Act).
Proceedings before Court
3. On the basis of pre-summoning evidence, accused was summoned for the offence under Section 138 of NI Act. The accused put in his appearance on 12.04.2018 and notice of accusation was framed upon the accused under Section 251 Cr.P.C. by Ld. Predecessor of the undersigned. Accused pleaded not guilty and claimed trial. In his plea of defence, the accused denied the signatures on cheques in question as his. He admitted to receiving the legal demand notice. He further stated that his one bag containing property documents and 5-6 other cheques, alongwith cheques in question, got misplaced and he had lodged a report in this regard with police officials. He further stated that he did not know the complainant herein and had never borrowed any amount from him. His cheques had been misused.
4. In support of his case, the complainant examined himself as CW-1 and adopted his pre-summoning evidence, wherein he has primarily re-iterated contents of the complaint. He has relied upon the documents i.e. original cheques bearing no.675042 dated 21.04.2016 (Ex.CW1/A) and no.675043 dated 29.04.2016 (Ex.CW1/B), cheque returning memo dated 25.04.2016 (Ex.CW1/C) and cheque Digitally signed ARUSHI by ARUSHI PARWAL PARWAL 15:37:45 Date: 2021.10.29 +05'30' CC No.: 510612/16 3/15 C. P. Singh vs. Vinod Prasad returning memo dated 02.05.2016 (Ex.CW1/D), copy of legal demand notice dated 06.05.2016 (Ex.CW1/E), original postal receipt (Ex.CW1/F), reply to legal demand notice received by complainant (Ex.CW1/G), original courier receipt (Ex.CW1/H) and the complaint (Ex.CW1/I).
5. The complainant was duly cross-examined by Ld. Defence counsel. During cross examination, he deposed that his son knew the accused due to same trade of business. He further deposed that he knew Vinod Prasad (the accused) personally, used to go his house, had family terms with him and the accused always attended the ceremony of his family. He further deposed that he did not know the name of wife of the accused or how many children he had. He admitted that he had never visited the house of the accused and stated that his son had business terms with the accused and used to go the factory of the accused. He further deposed that he knew the accused since 10-12 years and the accused contacted him in the first week of January, 2016 for a friendly loan. The accused visited his house and requested him to grant a friendly loan for 15 lacs. Thereafter, in the second week of January, he gave loan of Rs.15 lacs to the accused in cash. He stated that when he was in government service, he used to file ITR but after retirement he had not filed ITR. This amount was of his retirement benefit which he paid to accused. He further deposed that the government had paid him the retirement fund of approximately Rs.13 lacs, by cheque and he had deposited the same in his account. He used to withdraw the cash usually from his bank and he had withdrawn approximately Rs.13 lacs from the bank from time to time. At the time of cross- examination, the complainant had deposed that approximately Rs. 35,000/- balance was there in his account. He further deposed that he had sold his agricultural land in the year 2006-07 for a sum of Rs.23 lacs (which was his share in HUF) and said payment was received by him by way of cheque and was deposited in the same bank account of his. He admitted that he had not intimated the same to Income Tax Authority. He deposed that he could not tell as to what was the highest amount ever withdrawn by him from the bank. He further deposed that was having an amount of Rs. 5-7 lacs (approximately) in cash with him at the time of transaction in question. He had paid the amount in question to accused after repayment of loan of Rs.11 lacs by Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2021.10.29 15:38:10 +05'30' CC No.: 510612/16 4/15 C. P. Singh vs. Vinod Prasad his nephew, namely, Ram Kishan which was borrowed by him from him and rest of the amount was lying with him. Further, there was no talk regarding interest at the time of transaction in question with accused. He admitted that no receipt regarding the alleged payment to accused was prepared. He stated that the accused had issued two cheques along with original property documents pertaining to the house in which accused is residing i.e. H.No.181, Arjun Nagar, Delhi. He further stated that those documents were still in his possession. He further deposed that he could not say as to who had filled the cheques in question but the same must have been filled by accused himself. He admitted that the same were not filled in his presence. He denied having knowledge about the educational qualifications of the accused. He denied that no amount was ever borrowed by accused from him or that cheques in question were not issued to him. He denied that it was a false case and that he was deposing falsely.
Thereafter, CE was closed on 04.12.2018.
6. Statement of accused, under section 313 Cr.P.C. r/w section 281 Cr.P.C., was recorded in which he replied that he was innocent. He stated that he had not issued the cheque in question to the complainant herein. He further stated that he did not know the complainant herein, had not taken any loan from the complainant and did not have any liability towards the cheque in question. He further stated that he had taken his money back from the son of the complainant namely Sh. Praveen Kumar as he had delivered the goods to him and he had to settle the account but as on date, he could not tell the exact amount which he had to take from the son of the complainant. He further stated that his bag had been lost in which the cheque, paper and cash but the cheques were not signed by him. He had filed the complaint regarding the loss of his bag.
7. Accused had lead evidence in his defence, whereby he had examined himself as DW-1 and Deputy Bank Manager from PNB (Khari Bawli Branch) as DW-2. As DW-1, the accused has deposed that he was illiterate and was doing the business of three wheelers parts. He further deposed that he did not know the complainant, had not taken any loan from the complainant and did not issue any cheques to the complainant. His bag had been stolen from Vishnu Garden on 31.01.2016 and he had Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2021.10.29 15:38:37 +05'30' CC No.: 510612/16 5/15 C. P. Singh vs. Vinod Prasad reported the matter to the police on 31.01.2016 through on-line. The photocopy of the information report is on record and marked as Mark DW1/X. he further deposed that when the police did not take any action against the information report dated 31.01.2016, he again filed a complaint to SHO Khayala New Delhi to take the step against Mr. Praveen Kumar and Mr. C.P. Singh (complainant) on 14.05.2016. The photocopy of the said complaint is on record and marked as Mark DW1/X1. He deposed that he did not know where he reported the matter on-line, either in Police station or any police post and denied not having made any such complaint which is already marked as Mark DW1/X1. He further deposed that these two cheques which have been filed as Ex.CW1/A and Ex.CW1/B had been stolen from his office which were in his bag. He denied signing or filling up the cheques in question. He further stated that he had not given any document of the property bearing No. B-181, Arjun Park, Najafgarh and that the original papers of the property were with the Punjab National Bank Branch Gali Batasha Khari Bawali Delhi. He denied having any liability against the cheques in question.
8. The accused was duly cross-examined by Ld. Counsel for the complainant. During cross examination, he deposed that he knew Mr. Praveen Kumar, who is son of the complainant, for last more than 10 years and was having a business dealing with Mr. Praveen Kumar, who was having a shop and he used to supply the parts of three wheelers. He further deposed that only Mr. Praveen Kumar was having visiting terms and he used to visit almost every day for 2-3 hours at his office. When he had asked for some money which was due against Mr. Praveen Kumar, then a dispute arose between Mr. Praveen Kumar and himself, however, he had not issued any bill to Mr. Praveen Kumar for the money due upon him, since he was not having TIN number. He further deposed that he had not issued any legal notice for the demand of payment except he had raised demand telephonically. When the cheques in question were presented, he did not receive any message from the bank and he only came to know about the presentation of cheques in question when he received a legal notice dated 06.05.2016. He denied having received a friendly loan of Rs.15 lacs from the complainant and that both the cheques in question were issued by him in his handwriting and with his signatures. He further denied that there was no objection Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2021.10.29 15:39:09 +05'30' CC No.: 510612/16 6/15 C. P. Singh vs. Vinod Prasad from the bank side regarding his signatures or that cheques were dishonoured due to funds insufficient. He denied that he had given original documents of above said property and those documents were still in the possession of the complainant. He denied that he was deposing falsely to escape from the liability of the complainant.
9. Sh. Brij Bhushan (Deputy Manager, PNB, Gali Batasha, Khari Bawli, Delhi-06) was examined as DW-2. He deposed that his Branch had given a loan of Rs.40 lacs to Indu Devi, proprietor of BSA Industries and Indu Devi is wife of Sh. Vinod Prasad. He had brought the summoned record in original i.e. GPA dated 23.05.2000 for the property no.180, Village Nangali, Sakrawati, Delhi, exhibited as Ex.DW2/1 (running in 9 pages) (OSR). At the time of issuance of the loan, the aforesaid GPA alongwith Will, Agreement to Sell, Affidavit, Receipt are all dated 23.05.2000. He had also brought the original record of plot no.181-D, Village Nangali, Sakrawati, Delhi which include the receipt dated 23.02.2006, Will, GPA, Agreement to Sell, Possession letter, Affidavit in original, exhibited as Ex.DW2/2(colly) (running in 6 pages) (OSR). Apart from this, the witness had also brought chain of aforesaid property are also brought, i.e. GPA executed by Madan Jha of property no. 181-D, Village Nangali, Sakrawati, Agreement to sell dated 17.11.1990, affidavit dated 19.11.1990 and receipt dated 17.11.1990, Ex.DW2/3 (colly) (running in 5 pages) (OSR). He had also brought the copy of e-FIR filed by Vinod Prasad dated 31.01.2016, in which there is lost report of the cheque book and POA of D-180, Arjun Park, New Delhi. Same is Mark X. He deposed that Arjun Park is known as Nangali, Sakrawati, Delhi. The original receipt dated 17.09.1990, which is Ex.DW2/4. He further deposed that the CC limit had been disbursed on 19.09.2016 and since then, the aforesaid original documents are with the bank.
10. The witness was duly cross-examined by Ld. Counsel for the complainant. During cross examination, he admitted that original copy of GPA and receipt dated 31.07.1996 of property bearing no. plot no.180, measuring 20 sq. yards out of Kh. no. 16/7 situated at Village Nangali, Sakrawati was not in their record. The witness was then shown the original GPA, Will, Affidavit, Agreement for Sell, Receipt, all dated 31.07.1996 by the complainant and the witness correctly identified the said ARUSHI Digitally signed by ARUSHI PARWA PARWAL Date: 2021.10.29 L 15:39:36 +05'30' CC No.: 510612/16 7/15 C. P. Singh vs. Vinod Prasad original documents which were collectively marked as Mark Y (running in 7 pages) and the same had been placed on record.
It is pertinent to mention here that during the course of final arguments, the said documents were not found to be on record. On enquiry from Court, Ld. Counsel for the complainant submitted that the documents which were taken on record as Mark Y were actually beyond the averments in the complaint and were returned to the complainant on the same day itself by the Ld. Predecessor of the undersigned. Further, the said documents bore three different dates, i.e. 31.07.1996, 30.05.2001 and 22.01.2008. The facts regarding the objection to the said documents raised by the accused and their return were inadvertently not recorded in cross-examination of DW-
2. Hence, the said documents were actually never taken on record and did not form part of evidence of either party. Statement of counsel of the complainant to this effect was recorded on 18.03.2021.
11. DW-2 further admitted that loan was sanctioned on the basis of these documents but denied that the bank had sanctioned the CC limit loan on the forged and fabricated documents. He deposed that all the original documents placed by the complainant were not correct. He denied that he had intentionally or deliberately avoided the answer relating to property bearing no.180 measuring 20 sq. yards, Village Nangali, Sakrawati and that the CC limit loan granted to BSA Industries is contrary to the guidelines of RBI. He further deposed that the loan sanctioned to BSA industries had not been returned to the bank and BSA industries had been declared defaulter by the bank. Mr. Vinod Prasad became the guarantor for the loan sanctioned to BSA industries. He admitted that documents i.e. GPA dated 24.06.1988, Affidavit, Deed of Agreement and another GPA dated 06.06.1988, affidavit 06.06.1988, GPA, receipt dated 31.07.1996 are the photocopies and originals are not with the bank. He admitted that originals were not with the bank, however, he could not say that the originals of the same were with the complainant.
Thereafter, DE was closed on 27.02.2020.
12. Afterwards, final arguments were heard on behalf of both the parties and after hearing the arguments, trial was concluded. I have heard the counsels for both Digitally signed ARUSHI by ARUSHI PARWAL PARWAL 15:40:29 Date: 2021.10.29 +05'30' CC No.: 510612/16 8/15 C. P. Singh vs. Vinod Prasad the parties, perused the record and have gone through relevant provisions of the law and the judgments relied upon by both the parties. Certain judgments had been filed on behalf of the accused and the same have been perused.
Points for determination 13.1. Whether the complainant has been able to establish ingredients of offence punishable under Section 138 of The Negotiable Instruments Act, 1881 beyond shadow of reasonable doubt against the accused or not? 13.2. Final order.
Findings
14. Before appreciating the facts of the case in detail for the purpose of decision, relevant position of law is discussed. It is settled position of law that to constitute an offence under S.138 N.I. Act, the following ingredients are required to be fulfilled:
1) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;
2) that cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
3) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
4) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
5) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
It is only when all the aforementioned ingredients are satisfied that the drawer of the cheque in question can be deemed to have committed an offence under Section 138 of the NI Act.
Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2021.10.29 15:40:59 +05'30' CC No.: 510612/16 9/15 C. P. Singh vs. Vinod Prasad
15. In the present case, the accused has admitted that the cheques in question dated 21.04.2016 (Ex.CW1/A) and 29.04.2016 (Ex.CW1/B) are his cheques. However, he has denied his signatures on both cheques. Both cheques were dishonoured for reason "Funds Insufficient" vide cheque returning memos dated 25.04.2016 (Ex.CW1/C) and 02.05.2016 (Ex.CW1/D) respectively. As per the postal receipt and courier receipt filed, the legal demand notice (Ex.CW1/E) had been sent to the accused within 30 days from receipt of intimation of dishonor of the cheques in question. Receipt of legal demand notice has been admitted by the accused. Reply was sent by the accused to the legal demand notice and the same is Ex.CW1/G. Since payment was not made by the accused to the complainant within 15 days of receipt of legal demand notice, prima facie offence was made out against the accused and the accused was summoned for offence under Section 138 of NI Act.
16. The Negotiable Instruments Act raises two presumptions in favour of the holder of the cheque i.e. complainant in the present case; firstly, with respect to passing of consideration as contained in Section 118 (a) and, secondly, a presumption under Section 139, that the holder of cheque has received the same of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. 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.
In the present case, the accused has neither admitted the issuance of the cheques in question to the complainant nor his signatures on the said cheques, even at the time of framing of notice under Section 251 Cr.P.C. or at the time of his statement under Section 313 Cr.P.C. or in his evidence. He has further denied any liability outstanding upon him and in favour of the complainant.
17. Ld. Counsel for the complainant has argued that the accused had admitted that the cheques in question were his cheques. They were dishonoured for insufficient funds and not difference of signatures. Hence, mere denial of his Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2021.10.29 15:41:23 +05'30' CC No.: 510612/16 10/15 C. P. Singh vs. Vinod Prasad signatures by the accused will not invalidate the merits of the complaint. Moreover, the accused did not examine any handwriting expert or bank manager to disprove his signatures on the cheques in question. Hence, liability qua the said cheques has to be presumed in favour of the complainant. He has placed reliance on the judgment of Hon'ble Delhi High Court in 'Kanshi Ram Bansal v. Suman Malhotra [(2012) 2 DCR 419]'.
It is established law that the onus to prove the issuance and execution of the cheque lies upon the complainant, and the same have to be proved beyond reasonable doubt, unless the accused admits the same. Once the same are established by the complainant, either by admission or by positive evidence, the presumption under Section 139 of the Negotiable Instruments Act, 1881 arises. Hence, initial burden is upon the complainant and not the accused. The argument on behalf of the complainant that accused did not examine any witness to disprove his signatures on cheques lacks merit as the same was not for the accused to disprove but for the complainant to establish. Despite there being no admission of the accused regarding issuance of cheques in question or his signatures on the same at any point during the trial in the present case, the complainant has not examined any bank witness or other witnesses to prove that the cheques in question bear the signatures of the accused. Hence, the initial burden to be discharged by the complainant for the presumption under Section 139 of NI Act to be applied in his favour, was never discharged by the complainant. Therefore, the onus was still upon the complainant to prove that the cheques in question were issued by the accused to him for a legally recoverable debt.
18. On merits, it has been argued on behalf of the complainant that the complainant has successfully proved the commission of offence under Section 138 of NI Act by the accused. Moreover, the defence taken by the accused is moon-shine. There are a lot of contradictions in the defence taken by the accused in his reply to legal demand notice and his evidence, specifically with respect to theft of cheques. Further, the accused is a habitual defaulter and has defaulted many loan payments. Per contra, it has been argued on behalf of the accused that the complainant has failed to prove, beyond reasonable doubt, a legally enforceable debt in his favour and against the accused. There were no friendly relations between the parties, based on Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2021.10.29 15:41:48 +05'30' CC No.: 510612/16 11/15 C. P. Singh vs. Vinod Prasad which the loan was purportedly given to the accused and the same has been admitted by the complainant. There is no document on record evidencing the loan transaction or in support of the case of the complainant. The cheques in question have been filed in two different languages and shows the malafide of the complainant. It is prayed that accused be acquitted.
19. As regards the advancement of loan, the version of the complainant does not inspire confidence. The complainant has stated in his evidence that he was having friendly relations as well as visiting terms for the last 10-12 years. However, in his cross-examination, he has admitted that he had never visited the house of the accused, did not know the name of the wife of accused or how many children accused had. He admitted that he did not know about the educational qualifications of the accused. Further, he has stated that his son knew the accused and his son used to visit the factory of the accused. No evidence has been led and no witness has been examined by the complainant to establish the friendly relations between the accused and the complainant, based on which the friendly loan of Rs.15,00,000/- (rupees fifteen lakhs) is stated to be given to the accused. Admittedly, there is no receipt/document/witness on record to prove the said loan transaction. Further, no reason/explanation has been tendered by the complainant in his evidence as to why and based upon what relationship, he had advanced a huge sum of Rs.15,00,000/- to the accused without taking any receipt or acknowledgment and without even ascertaining capacity of the accused to repay. It has been stated by the complainant that property documents of house of the accused were given by the accused to him as security for the said loan. However, during the whole course of trial, the relevant documents have not come on record. The same have neither been brought on record in evidence of the complainant nor was the accused confronted with them during his cross-examination.
Furthermore, the complainant had admitted that he had retired from government service and had received Rs.13 lakhs as retirement benefit. His admitted bank balance was Rs.35,000/- at the relevant time. No active sources of income or funds have been mentioned in the complaint. The complainant has admitted that he has not disclosed any income from other loans or agricultural property in his Income Tax Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2021.10.29 15:42:11 +05'30' CC No.: 510612/16 12/15 C. P. Singh vs. Vinod Prasad Returns. Nowhere in his evidence, any specific particulars of capacity or source or arrangement of funds of Rs.15,00,000/- for advancing the loan as stated, have been brought on record by the complainant. Considering that huge sum of money to the tune of Rs.15,00,000/- is not easily available to be given to anybody and everybody on a mere ask, it creates a doubt as to the veracity of the alleged loan transaction.
20. With respect to issuance of the cheques in question, the complainant had stated that in order to repay the friendly loan, the accused had also given/issued two post-dated cheques and the accused had assured to the complainant that the said cheques will be honoured on their presentation. In his cross-examination, he has stated that he could not say as to who had filled the cheques in question but the same must have been filled by accused himself. He admitted that the same were not filled in his presence. These two contradictory versions regarding issuance of cheques in question are evident in the evidence of the complainant himself.
21. Further, the accused has been able to raise a probable defence in his favour in the present case.
It has been held by Hon'ble Supreme Court of India in 'Rangappa v. Sri Mohan [(2010) 11 SCC 441)]' -
"14. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2021.10.29 15:42:34 +05'30' CC No.: 510612/16 13/15 C. P. Singh vs. Vinod Prasad under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
22. The accused has denied knowing the complainant or having any friendly relations with him or having taken any loan from him. None of these facts have established by the complainant beyond reasonable doubt. In his defence, the accused has stated in his evidence that his bag containing his cheques and POA were lost by him. For the same, copy of complaint lodged by the accused as on 31.01.2016 has been filed on record (Ex.DW1/X). The said complaint was lodged much prior in time to the date of cheques in question. Thereafter, another complaint was lodged by the accused after receiving legal notice from the complainant. Copy of complaint lodged by the accused as on 14.05.2016 has been filed on record (Ex.DW1/X1). This stand of the accused has been consistent in his reply to legal demand notice, his plea of defence, his statement under Section 313 Cr.P.C. and his evidence. Further, the accused has also examined a bank witness in his defence. He has deposed that property papers of the accused, regarding two of his houses, are already deposited in the bank. He has also filed the lost report of cheque book of the accused. Hence, in addition to the fact that no property papers as alleged in the complaint were ever Digitally signed ARUSHI by ARUSHI PARWAL PARWAL 15:42:58 Date: 2021.10.29 +05'30' CC No.: 510612/16 14/15 C. P. Singh vs. Vinod Prasad brought on record by the complainant, the fact that the same were deposited with the bank sufficiently rebuts the version in the complaint.
23. Considering the above facts and circumstances in toto, this court is of the considered opinion that the complainant has failed to establish the factum of a legally enforceable debt against the accused and in his favour and that the cheques in question were issued to him by the accused against the same. He has, hence, failed to discharge the onus and prove his case beyond reasonable doubt.
24. In light of the above discussion, on account of the fact that the complainant has failed establish the ingredients of offence under Section 138 against the accused beyond reasonable doubt, accused Vinod Prasad is hereby acquitted for the offence under section 138 NI Act.
Previous bail bonds of the accused stand cancelled. Surety stands discharged. Endorsement on documents of surety, if any, be cancelled. Original documents of surety, if any, be returned against due acknowledgement.
Bonds under Section 437 A Cr.P.C. have been furnished. The same are hereby accepted for a period of six months from today.
Digitally signedAnnounced in open court ARUSHI by ARUSHI
PARWAL
on 29.10.2021 PARWAL Date: 2021.10.29
15:43:22 +05'30'
(ARUSHI PARWAL)
Metropolitan Magistrate (NI Act)-02
Central, Tis Hazari Court, Delhi.
CC No.: 510612/16 15/15 C. P. Singh vs. Vinod Prasad