Delhi District Court
Premjeet vs . Chander Pal Singh on 12 May, 2023
IN THE COURT OF SH. MAYANK GOEL:MM-02, NI ACT,
TIS HAZARI COURTS:DELHI
____________________________________________________________________________
Ct. Case No. 3268/2017
PREMJEET Vs. CHANDER PAL SINGH
PS Ranhola
U/s. 138 Negotiable Instrument Act
Prem Jeet,
S/o Late Sh. Jai Bhagwan,
R/o H. No. 33, Village & PO Baprola,
New Delhi. ........................ COMPLAINANT
Vs.
Chander Pal Singh,
S/o Late Sh. Ganga Sahai,
R/o A-42, Brahampuri Colony,
Near Kali Mata Mandir,
Ranhola,
Delhi-110041. .............................. ACCUSED
___________________________________________________________________________________
Ct. Case No. 3268/2017
PREMJEET Vs. CHANDER PAL SINGH
PS Ranhola Page No. 1 of 19
U/s. 138 Negotiable Instrument Act
JUDGMENT
1) Offence complained of : Section 138 Negotiable Instrument Act 2) Plea of accused : Pleaded not guilty 3)Date of institution of the case : 29.05.2017 4) Final order : Convicted. 5) Date of reserving of order for judgment : 10.05.2023 6) Date of final order : 12.05.2023
___________________________________________________________________________________ Ct. Case No. 3268/2017 PREMJEET Vs. CHANDER PAL SINGH PS Ranhola Page No. 2 of 19 U/s. 138 Negotiable Instrument Act Brief reasons for decision:
1) The necessary facts for disposal of present case as reflected in the complaint is that the accused is known to the complainant through a common friend namely Sh. Navin Parjapati, who is running a computer centre at Baprola Village, Delhi, and said Sh.
Navin Parjapati had introduced the accused to the complainant and accordingly, good friendly relations were developed between the complainant and the accused for the last 3-4 years. That first time, the accused approached the complainant in first week of June 2014 and requested him to lend an amount of Rs. 1,00,000/- for six months as friendly loan for the personal use of the accused as the accused wanted to electrify his house at that point of time and the said amount was paid by the complainant to the accused in cash on 20.06.2014 being in friendly relations. That secondly in the month of July 2014, the accused again approached the complainant for taking an amount of Rs. 1,00,000/- as friendly loan on the account that his wife was seriously ill and further settling a litigation which was pending in respect of his house. That the accused assured the complainant that he would pay the entire loan amount of Rs.2,00,000/- i.e. Rs. 1,00,000/- taken earlier and present asked amount of Rs.1,00,000/- to the complainant within six months and being a good friend of the accused, the complainant again gave a further sum of Rs. 1,00,000/- as friendly loan to the accused on 15.07.2014. That in the month of August 2014, the accused again approached the complainant and again requested him to advance an amount of Rs.50,000/- as friendly loan on the account that the wife of the accused was suffering from serious disease. That the accused assured the complainant that he would return the entire loan amount of Rs. 2,50,000/- within a period of three months and on 28.08.2014, the complainant advanced a further sum of Rs. 50,000/- to the accused as friendly loan in cash. That in the middle of October 2014, the accused again approached the complainant and again requested him to advance an amount of ___________________________________________________________________________________ Ct. Case No. 3268/2017 PREMJEET Vs. CHANDER PAL SINGH PS Ranhola Page No. 3 of 19 U/s. 138 Negotiable Instrument Act Rs.1,50,000/- as friendly loan on the account that the wife of the accused was suffering from serious disease and further he wanted to settle the litigation of his house, as told by him to the complainant on earlier occasion. That the accused assured the complainant that he would return the entire loan amount of Rs.4,00,000/- within a period of three months and on 28.10.2014, the complainant again further advance a sum of Rs. 1,50,000/- to the accused as friendly loan in cash. That in the second week of December 2014, the accused again approached the complainant and again requested him to advance an amount of Rs. 2,00,000/- as friendly loan on the account that the wife of the accused was seriously ill. That the accused assured the complainant that he would return this loan amount of Rs. 2,00,000/- as well as the loan amount of Rs. 4,00,000/- with a month and on 15.12.2014, the complainant again advanced a further sum of Rs. 2,00,000/- only to the accused as friendly loan and till that period, the accused had taken a total loan of Rs. 6,00,000/- from the complainant. That the complainant approached the accused in the end of January 2015 and requested him to repay the friendly loan amount then the accused told the complainant that he has already applied for the personal loan of Rs. 30,00,000/- under Pradhan Mantri Jan Dhan Yojana and he further assured the complainant that the said personal loan amount would be disbursed to him within next two months but the complainant refused to wait for further two months, then thereafter, on much insistence of the accused, the complainant got agreed to wait for further two months when the accused offered an interest @ 18% per annum w.e.f. 01.01.2015 on total amount of friendly loan which was due i.e. Rs. 6,00,000/-. That in the month of May 2015, the accused issued a cheque of Rs. 2,00,000/- bearing no. 025531 dated 19.05.2015 for part repayment of friendly loan tot he complainant but later on, he requested the complainant that he is not having sufficient amount in his account and requested not to present the same on its due date. That in the month of December ___________________________________________________________________________________ Ct. Case No. 3268/2017 PREMJEET Vs. CHANDER PAL SINGH PS Ranhola Page No. 4 of 19 U/s. 138 Negotiable Instrument Act 2015, the accused issued a post-dated cheque bearing no. 025539 for a sum of Rs.5,47,000/- dated 15.01.2016 in favour of the complainant and he sought some more time to repay the interest upon the due amount and assured him that he would be having sufficient amount in his account to honour the said cheque on its due date but on 14.01.2016, the accused told the complainant that his personal loan is about to sanction and requested the complainant not to present the cheque on its due date and later on the said cheque become outdated and could not be used. That the accused approached one person namely Sh. Sunil, who is also a common friend of the accused and the complainant to advance him a friendly loan of Rs. 3,00,000/- for a period of six months on the account that he has not any income and he was facing financial crises and he was in dire need of money as his wife was regularly being ill and he was having litigation regarding his house/property and further he told that as he had applied for a personal loan under Pradhan Mantri Jan Dhan Yojana, the broker namely Bijender and Chandan Dubey had demanded a sum of Rs. 3,00,000/- and he further told the complainant that if he would not give the brokerage amount, his personal loan would not be sanctioned and then he would not be able to repay the friendly loan of Rs. 6,00,000/- to the complainant as the personal loan was the last hope for the accused. That the accused further assured to said Sunil also that he would repay his amount of Rs. 3,00,000/- with interest @ 18% per annum and after considering the factual position of the complainant and the accused, being a good friend of both and to short out the problem of complainant and accused, said Sh. Sunil advanced the friendly loan of Rs. 3,00,000/- to the accused on 15.02.2015 in the presence of the complainant and the accused issued a post dated cheque of Rs.3,00,000/- in favour of said Sunil Kumar, being cheque no. 025532 dated 15.08.2015 drawn on Bank of Maharashtra, Baprola Branch, Delhi, and the accused gave a written undertaking on 13.02.2015 on a Stamp Paper of Rs. 10/- regarding ___________________________________________________________________________________ Ct. Case No. 3268/2017 PREMJEET Vs. CHANDER PAL SINGH PS Ranhola Page No. 5 of 19 U/s. 138 Negotiable Instrument Act taking of loan of Rs. 3,00,000/- from said Sunil. That after expiry of the time given to the accused for repaying the loan amount, the complainant and said Sh. Sunil approached the accused to repay their respective loan and the accused requested for more time and further he requested to said Sunil not to present the abovesaid cheque given by him to said Sh. Sunil not to present the abovesaid cheque given by him to said Sh. Sunil on its due date and he again assured the complainant and said Sh. Sunil on its due date and he again assured the complainant and said Sh. Sunil that the personal loan would be sanctioned to him as soon as possible and after sanctioning the personal loan under Pradhan Mantri Jan Dhan Yojana, he would repay the entire loans of the complainant as well as said Sh. Sunil. That the complainant and said Sunil were not having any option but to wait and faith upon the accused and thereafter also both of them approached the accused on different occasion to repay their respective friendly loans. That in the month of February 2016, when the complainant and said Sh. Sunil approached the accused to repay their respective loan amount, the accused show a set of documents regarding sanctioning of a personal loan of Rs. 30,00,000/- in his favour and print outs of the said documents were seems to be taken from the website of the Department of Financial Services, Ministry of Finance, Government of India, and also handed over a set of photocopy of same set and further sought extension of time to repay the loan amount with interest @ 18% per annum. That in the month of June 2016, when the complainant and said Sunil approached the accused to repay their respective loan amount, the accused showed a receipt dated 27.05.2016 by which it was acknowledged that a sum of Rs. 2,60,000/- by which it was acknowledged that a sum of Rs. 2,60,000/- had been received by one Sh. Bijender Singh R/o 40B, Roshanpura, Najafgarh, New Delhi, from the accused in view of sanctioning a personal loan of Rs. 30,00,000/- under Pradhan Mantri Jan Dhan Yojana and the accused handed over a photocopy of the same to the ___________________________________________________________________________________ Ct. Case No. 3268/2017 PREMJEET Vs. CHANDER PAL SINGH PS Ranhola Page No. 6 of 19 U/s. 138 Negotiable Instrument Act complainant and further sought extension of a short time and assured the complainant that he would repay their respective loan with interest @ 18% per annum as soon as personal loan sanctioned to him. That the complainant and said Sh. Sunil being left with any option agreed for the same. That in the month of August 2016, when the complainant and said Sunil approached the accused, the accused showed and handed over a copy of police complaint vide DD No. 37B dated 01.07.2016 of PS Ranhola, Delhi, against Bijender and Chandan Dubey and further he told the complainant that Bijender and Chandan Dubey and further he told the complainant that Bijender and Chandan Dubey have cheated him in the name of sanctioning of personal loan against which he has lodged the said complaint. That the complainant and said Sunil that in the last week, Bijender and Chandan Dubey had approached the accused for withdrawl of the said complaint against them and they offered an amount of Rs. 15 lakh to the accused as per the receipt-cum-agreement dated 27.05.2016 and he further sought some time to repay the loan amount with interest @ 18% per annum and again without having any other option, the complainant and said Sunil agreed with the version of the accused. That finally in the month of February 2017, when the complainant and said Sunil approached the accused to repay their respective loan amount with interest @ 18% per annum, the accused narrated his new problem that he was having only one cheque bearing no. 000008, Ex. CW 1/1, and he could issue for a total loan amount of both complainant and Sunil with interest and one much persuasion of the accused without having any other option, the complainant and said Sunil believed the version of the accused and with the consent/discussion of complainant and said Sunil, the accused issued a cheque bearing no. 000008, Ex. CW 1/1, dated 17.03.2017 of Rs. 12,00,000/- drawn on Bank of Baroda, District Centre Janakpuri, New Delhi, having account no. 27600100008916 in discharge of his legally enforceable liability towards the ___________________________________________________________________________________ Ct. Case No. 3268/2017 PREMJEET Vs. CHANDER PAL SINGH PS Ranhola Page No. 7 of 19 U/s. 138 Negotiable Instrument Act complainant and Sh. Sunil. That the accused had issued the said cheque of Rs.12,00,000/- as full and final settlement of all the loan amount including interest amount in respect of respective loan amount advanced by the complainant and said Sh. Sunil to the accused and on 06.02.2017 at 10:48 AM, the accused requested the complainant on mobile phone and assured the complainant that he would be having sufficient amount in the month of April 2017 and requested the complainant to present the cheque in the month of April, 2017. On presentation by the complainant with its banker, the said cheque dishonored with the remarks "funds insufficient" as reflected vide returning memo dated 10.04.2017, which is Ex. CW1/2. Thereafter, legal demand notice dated 19.04.2017, Ex. CW 1/3, was served upon the accused calling him to pay the cheque amount but despite the service of the legal notice, the accused has not paid the cheque amount within the stipulated period of 15 days as per NI Act. Thereafter, complainant has filed the present written complaint case u/s 138 r/w 142 of the Negotiable Instruments Act, 1881.
2) Cognizance of offence under section 138 NI Act was taken against the accused and summons were issued. Notice of accusation u/s 251 Cr.P.C. was served upon the accused and plea of defence of the accused was also recorded on the same day in which he had not pleaded guilty and claimed trial. It is stated by accused that the cheque-in-question bears his signatures but he had not filled up the other particulars in the cheque. He further stated that he have lost four cheques bearing no. 000007 to 000010 of Bank of Baroda and he have also lodged the complaint to that effect having LR No. 1262067/2016 dated 31.12.2016 in PS Ranhola. He further stated that he was not legally liable to pay any debt to the complainant otherwise also. He ___________________________________________________________________________________ Ct. Case No. 3268/2017 PREMJEET Vs. CHANDER PAL SINGH PS Ranhola Page No. 8 of 19 U/s. 138 Negotiable Instrument Act further stated that he do not owe any liability towards the complainant qua the cheque-in-question.
3) In post summoning evidence, the complainant examined himself as CW 1, Sunil Kumar as CW 2, and HC Ranjeet, PS Ranhola, as CW 5 for proving his version of the case and were duly cross examined by Ld. Counsel for the accused.
4) Thereafter memorandum of statement of the accused u/s 313 Cr.P.C. r/w Sec 281 Cr.P.C. was also recorded in the case wherein the accused stated that he owe no liability towards the complainant. He further stated that he had asked for Rs.60,000/-. He further stated that he had already paid the entire loan amount. He further stated that he do not know how they have taken his cheque. He further stated that he do not know how they calculated the amount of Rs. 12,00,000/-. He further stated that he lodged an NCR against the cheque-in-question as the same was stolen. He further stated that he can produce the same.
5) In his defence, the accused examined himself as DW1 and was duly cross-examined by Ld. Counsel for the complainant.
6) Thereafter, Learned Counsel for complainant made final oral submissions and the accused filed written arguments.
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7) It is stated by the Ld. Counsel for the complainant that the accused has admitted that the dishonoured cheque-in-question bears his signature and legal presumption of consideration u/s 139 of NI Act would act against the accused. It is further stated by Ld. Counsel for the complainant that the testimony of complainant during cross- examination by Ld. Counsel for the accused is consistent and the accused failed to shake his credibility and veracity. It is further stated by Ld. Counsel for the complainant that the accused approached the complainant for a friendly loan time to time to the complainant and the complainant advanced a loan of Rs. 6,00,000/- in total to the accused. It is further stated by Ld. Counsel for the complainant that the complainant also got arranged Rs. 3,00,000/- as a loan from one common friend namely Sh. Sunil to the accused. It is further stated by Ld. Counsel for the complainant that the accused in discharge of his liability for the loan amount of Rs.9 lakh in total alongwith agreed interest issued a cheque bearing number 000008 dated 17.03.2017 of Rs.12 lakh drawn on Bank of Baroda, Janakpuri branch, New Delhi, Ex. CW 1/1, which was dishonoured with the remarks "funds insufficient". It is further stated by Ld. Counsel for the complainant that legal demand notice was duly served to the accused and despite that the accused did not make the payment of the cheque amount. It is further stated by Ld. Counsel for the complainant that the accused had given the complaint to SHO PS Ranhola vide DD No. 37B dated 01.07.2016, which is Mark A and the said complaint is duly admitted by the accused during his cross-examination. It is further stated by Ld. Counsel for the complainant that in Para No. 4 of the said complaint, the accused had specifically mentioned that he had taken a loan of Rs. 6 lakh from the complainant and in Para No. 5, it is specifically mentioned that he had taken a loan of Rs. 3 lakh from one person namely Sh. Sunil. It is further stated by Ld. Counsel for the complainant that the accused had filed one civil suit against the complainant which is Ex. DW 1/C1(OSR). It is further ___________________________________________________________________________________ Ct. Case No. 3268/2017 PREMJEET Vs. CHANDER PAL SINGH PS Ranhola Page No. 10 of 19 U/s. 138 Negotiable Instrument Act stated by Ld. Counsel for the complainant that in Para No. 3 of the plaint, the accused had specifically mentioned that he had given certain cheques to the complainant as a security. It is further stated by Ld. Counsel for the complainant that at the time of framing of notice u/s251 Cr.P.C., it is stated by accused that he had not given the cheque-in-question to the complainant rather his 4 cheques including the cheque-in-question were lost and he had also lodged LR bearing no. 1262067/2016 dated 31.12.2016 in PS Ranhola. It is further stated by Ld. Counsel for the complainant that all these statements are contradictory in itself and the accused had admitted the case of the complainant in his complaint, Mark A. It is further stated by Ld. Counsel for the complainant that the complainant had duly proved his case and accused may kindly be convicted in the present case.
8) This is the factual matrix of this case. Let us now examine the legal benchmark which is to be satisfied in order to constitute an offence under section 138 NI Act:
(i) That the persons must have drawn a cheque on an account maintained by him in a bank for payment of certain amount of money to another person from out of that account.
(ii) That the cheque should have been issued for discharge in whole or in party of any debt or other liability.
(iii) That the cheque has been presented to a bank within a period of three months from the date on which it was drawn.
(iv) That cheque is returned by the bank unpaid because of the amount of money standing to the credit of account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account or any other reason.
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(v) That the payee or the holder in due course of the cheque makes a demand for the payment of said amount by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of the information by him from the bank regarding the return of cheque as unpaid.
(vi) That the drawer of the said cheque fails to make payment of the said amount to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
9) It is only when all the aforementioned ingredients are satisfied, that the person who had drawn the cheque can be deemed to have committed an offence u/s 138 of NI Act.
10) As per section 114, Indian Evidence Act,1872 which is applicable to communication sent by the post, the court are to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the General Clauses Act envisages that when a registered notice is posted , it is presumed to have been served unless rebuttal is given.
11) Final arguments addressed on behalf of the Ld. Counsel for the complainant have been heard and carefully considered along with the entire evidence on record as well as the written submissions of the accused.
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12) In Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513, the Hon'ble Supreme Court, held as under:
"The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the nonexistence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should disprove the nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or their non existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on the complainant. The accused may also rely upon presumptions of fact, for instance, ___________________________________________________________________________________ Ct. Case No. 3268/2017 PREMJEET Vs. CHANDER PAL SINGH PS Ranhola Page No. 13 of 19 U/s. 138 Negotiable Instrument Act those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act."
13) In M.S Narayana Menon Vs. State of Kerala, (2006) 6 SCC 39, the Apex Court dealing with the statutory presumption under Sections 118(a) and 139 of the N. I. Act inter alia held as under:
"29. In terms of Section 4 of the Evidence Act whenever it is provided by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. The words "proved" and "dis proved" have been defined in Section 3 of the Evidence Act (the interpretation clause)......
30. Applying the said definitions of "proved" or "disproved" to the principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the nonexistence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.
XXX XXX XXX
32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies.
___________________________________________________________________________________ Ct. Case No. 3268/2017 PREMJEET Vs. CHANDER PAL SINGH PS Ranhola Page No. 14 of 19 U/s. 138 Negotiable Instrument Act XXX XXX XXX Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the s standard of reasonability being that of the 'prudent man'."
14) It is a well settled proposition of law that once execution of Negotiable instrument is admitted, the presumption under Section 118(a) NI Act would arise that it is supported by a consideration. However, such presumption is rebuttable and the accused can prove the non-existence of a consideration by raising a probable defence. The burden upon the accused of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. To disprove the presumption, the accused has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist.
15) The gist of two above mentioned precedents is that the accused is in trial under Section 138 NI Act is left with two alternatives for his defence. He can either show that consideration and debt did not exist for which direct evidence could be adduced which is seldom available or he can show by relying upon circumstantial evidence that under the particular circumstances of the case the nonexistence of consideration and debt is so probable that prudent man ought to suppose that no consideration and debt existed. It is evident that standard of proof to rebut the statutory presumption is not to prove it beyond the reasonable doubt as required in a criminal complaint. The ___________________________________________________________________________________ Ct. Case No. 3268/2017 PREMJEET Vs. CHANDER PAL SINGH PS Ranhola Page No. 15 of 19 U/s. 138 Negotiable Instrument Act onus to that effect on the accused is not onerous and what is required is a probable defence which could primarily find its foundation in preponderance of probabilities. In order to raise a probable defence, the accused can also rely on the evidence adduced by the complainant. However, a bare denial of the statutory presumption by the accused will not suffice.
16) In present case, accused admitted his signature and account number with respect to cheque-in-question. The main defence of the accused is that he had not issued the cheques-in-question to the complainant and his 4 cheques including the cheque-in- question were lost and he had already lodged LR report regarding the same and moreover, he had no legal liability towards the complainant qua the cheque-in- question and he had taken only an amount of Rs. 60,000/- from the complainant and duly repaid the same.
The accused nowhere during whole trial denied taking of loan from the complainant but denied the amount of the loan alleged by the complainant and Sh.Sunil to be given to the accused. Ld. Counsel for the accused put suggestion to the complainant during his cross-examination which shows that Sh. Sunil had given loan to the accused i.e. "It is wrong to suggest that Sh. Sunil has given loan to the accused at Najafgarh." Ld. Counsel for the accused also put suggestion during the cross-examination which shows that accused had taken the loan both from the complainant and Sh. Sunil i.e. "It is wrong to suggest that accused had not promised the complainant and Sunil that he will pay any interest on the loan amount." Ld. Counsel for the accused also put suggestion to CW 2 i.e. Sunil Kumar which shows that accused had taken the loan i.e. "It is wrong to suggest that accused took interest free loan as the same has not been mentioned in undertaking ___________________________________________________________________________________ Ct. Case No. 3268/2017 PREMJEET Vs. CHANDER PAL SINGH PS Ranhola Page No. 16 of 19 U/s. 138 Negotiable Instrument Act Ex. CW 1/8". The accused during his examination and cross-examination gave contradictory statements. In examination in chief, it is stated by accused that he had never taken any loan except a loan of Rs. 60,000/- and the said loan of Rs. 60,000/- had already been repaid. However, during his cross-examination, the accused deposed that he took Rs. 50,000/- in the year 2014, after one month he took Rs.1,00,000/- and in July 2015, he took Rs. 60,000/- from the complainant.
The accused in his examination in chief exhibited one stamp paper with something written on it and alleging that it bears the signature of the complainant which is Ex. DW 1/3. The said document was sent to FSL to compare with the admitted signature of the complainant and as per report of FSL, the signature on Ex. DW 1/3 is different from the admitted signature of the complainant, which shows that the accused had filed the forged document before the court.
The accused had duly admitted the document Mark A, which is the complaint made by the accused to SHO PS Ranhola dated 01.07.2016 against Sh. Bijender Singh, in which the accused had duly mentioned the fact of receiving of loan of Rs.6,00,000/- from the complainant and Rs. 3,00,000/- from one person namely Sh.Sunil, which amounts to the admission of the case of the complainant. Moreover, the accused in the civil suit filed by him against the complainant mentioned that the complainant had taken certain cheques from him though in semi conscious condition due to consumption of alcohol, which shows that the cheque-in-question was never lost and accused has taken a false and concocted defence.
Here, the admission of signature and account number has itself creates the presumption u/s 139 of NI Act in favor of 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. When an ___________________________________________________________________________________ Ct. Case No. 3268/2017 PREMJEET Vs. CHANDER PAL SINGH PS Ranhola Page No. 17 of 19 U/s. 138 Negotiable Instrument Act 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 the probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail.
17) In the present complaint case, the accused has failed to rebut the presumption raised under section 139 of NI act that such liability do not exist.
18) Ld. Counsel for the complainant relied on several judgments. The proposition of law which has been clearly explained in Bir Singh V. Mukesh Kumar dated 06.02.2019 and have been subsequently relied upon by the Apex Court and other Hon'ble Courts is as follows:-
a) That the onus to rebut the presumption u/s 139 of the NI Act that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post-dated does not absolve the drawer of the cheque of legal consequences.
b) That the bare reading of the provisions of Section 20, Section 87 and Section 139 of the NI Act makes it amply clear that a person who signed the cheque and makes it over to the Payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for a payment of debt or in discharge of a liability. It has also been held that it is immaterial that the cheque may have been filed by any other person other than the drawer if the cheque has been duly signed by the drawer.
c) Even if the blank cheque leaf voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption u/s 139 of the NI Act, in ___________________________________________________________________________________ Ct. Case No. 3268/2017 PREMJEET Vs. CHANDER PAL SINGH PS Ranhola Page No. 18 of 19 U/s. 138 Negotiable Instrument Act the absence of any cogent evidence to show that the cheque was not issued in discharge of any debt.
19) In view of above discussions, this court is of considered view that accused has failed to create reasonable doubt over the veracity of story of complainant by balance of probabilities. It is noticeable that the complainant has to prove his case beyond reasonable doubt only when the accused has rebutted the presumption under section 139 NI Act which the accused has failed to do in the present case.
20) In upshot of aforesaid discussion, I return finding of conviction of accused Chander Pal Singh for offence u/s 138 of NI Act in this case.
21) Let the copy of judgment be given free of cost to the convict.
22) Let convict be heard on quantum of sentence.
Digitally signed by
MAYANK MAYANK GOEL
GOEL Date: 2023.05.12
14:03:50 +0530
Announced in open court (MAYANK GOEL)
on 12.05.2023 MM(NI ACT)-02/West District
THC Courts/Delhi
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