Delhi District Court
Kamal Kant vs . Ashish Bhabhauria Cc No. 6725/2018 ... on 23 December, 2021
IN THE COURT OF MS. PRIYA JANGHU, METROPOLITAN
MAGISTRATE,
SOUTH-WEST, DWARKA, DELHI
In Re:
CNR No. DLSW02-008196-2018
CC No. 6725/2018
Kamal Kant
S/o Late Sh. S.N. Singh
R/o. A-18, UG Floor,
Anand Vihar, Uttam Nagar,
New Delhi-110059
............ Complainant
Versus
Ashish Bhabhauria
S/o Sh. Kuldeep Singh
R/o H. No. 9(1), Village Than,
P.O. Kangoo, Teshsil : Nandaun,
Distdrict : Hamirpur,
Himachal Pradesh-177040 ............. Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
(3) Date of institution of case : 12.02.2018
Digitally signed
(4) Date of conclusion of arguments: 22.12.2021 by PRIYA
JANGHU
PRIYA Date:
JANGHU 2021.12.23
16:57:36
+0530
Kamal Kant vs. Ashish Bhabhauria CC No. 6725/2018 Page no. 1 of 15
(5) Date of Final Order : 23.12.2021
(6) Final Order : Acquitted
JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under:-
The complainant alleges that he and the accused were having friendly relationship and were well known to each other. It is alleged that in the first week of August'2015, the accused approached the complainant for loan amount of Rs.2,40,000/- for some personal requirement. It is further alleged that on 05.08.2015, the complainant advanced loan of Rs.2,40,000/- in cash for a period of one year to the accused. Thereafter, on 15.03.2016 another loan of Rs. 4,00,000/-
was advanced to the accused in cash. Again after 15 days of advancing the said loan, the complainant advanced another loan of Rs.2,60,000/- to the accused in cash after request for the same was made by the accused.
3. It is further alleged that the accused in discharge of his loan liability issued three cheques i.e cheque no. 621837 dated 08.03.2017 for a sum of Rs. 3,99,000/- and cheque in question bearing no. 621830 dated 07.12.2017 amounting to Rs. 5,01,000/- both drawn on Punjab National Bank, Malak Kangoo, HP-177040 to complainant towards repayment of loan, with an assurance of its encashment and third cheque was cancelled by the accused due to mis-writing over the said cheque.
Digitally signed by PRIYA Kamal Kant vs. Ashish Bhabhauria CC No. 6725/2018 Page no. 2 of 15 PRIYA JANGHU JANGHU Date:
2021.12.23 16:57:46 +0530 The complainant presented the cheque in his account maintained at Bank of India, Uttam Nagar, New Delhi, which was returned with the remarks "Account closed"
vide bank return memo dated 15.12.2017. Thereafter, complainant served a legal notice dated 13.01.2018 upon the accused through his counsel demanding the said amount. Despite service of aforesaid notice, no money was repaid by the accused and instead accused has sent a reply to the legal demand notice stating that he had already repaid the loan amount. Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
4. In his pre-summoning evidence, complainant examined himself on affidavit Ex. CW-1/A. He reiterated the contents of complaint and placed on record, one original cheque in question bearing no. 621830 dated 07.12.2017 amounting to Rs. 5,01,000/- drawn on Punjab National Bank, Malak Kangoo, HP-177040 as Ex. CW-1/1 , cheque returning memo dated 15.12.2017 as Ex. CW-1/2, legal demand notice dated 13.01.2018 as Ex. CW-1/3, receipt of speed post as Ex. CW-1/4 (colly), reply to the legal demand notice as Ex.CW1/5, tracking report as Ex. CW1/6 and Ex.CW1/7.
5. Upon appreciation of pre-summoning evidence, accused was summoned for an offence punishable under Section 138 of the Act and notice under Section 251 Cr.P.C. for this offence was framed upon accused on 01.08.2018 to which he pleaded not guilty and claimed trial. He admitted his signatures on the cheque in question and denied filling of the remaining details on cheque in question. He further stated that he had taken total loan of only Rs. 2,40,000/- from the complainant in small loan installments. He further stated that he had re-paid much more than the loan amount in cash and through online transfer. However, the security cheque given by him was not returned to him by the complainant and same has been misused by the complainant. He further stated that he has received a legal Digitally signed by Kamal Kant vs. Ashish Bhabhauria CC No. 6725/2018 Page no. 3 of 15 PRIYA PRIYA JANGHU JANGHU Date:
2021.12.23 16:57:56 +0530 notice to which accused has sent a reply to the complainant whereby he has denied his liability to pay anything to the complainant as he has already paid much more than the cheque amount to the complainant.
6. Complainant as CW-1 was duly cross examined by the accused. No other witness was produced by the complainant and he closed his evidence by giving a separate statement to this effect. Thereafter, statement of accused under Section 313 Cr.P.C was recorded in which all the incriminating evidence were put to him to which accused reiterated the stand taken by him in answer to notice under Section 251 Cr.P.C. Accused admitted that he had taken loan of only Rs. 2,40,000/- in cash from the complainant in small loan installments from the year 2015 to 2017 approximately and thereafter, the complainant started charging excess interest rate from the accused. He further stated that he has given blank signed cheques including the cheque in question to the complainant at the time of taking first installment of loan from the complainant. He further stated that he has made payment of about Rs.6,50,000/- to the complainant and his wife through bank channel and Rs. 4,50,000/- in cash to the complainant. However, the security cheques given by him were not returned to him. His security cheques have been misused by the complainant. Thereafter, the matter was fixed for defence evidence.
7. Accused preferred to lead evidence in his defence and has examined himself as DW-1 and his wife as DW-2. He relied upon the documents Ex. DW-1/1 (colly). DW-2 relied upon Ex.DW2/A (colly). DW-1 and DW-2 were duly cross-examined by counsel for complainant. Thereafter, vide his statement defence evidence was closed.
8. Thereafter, matter was listed for final arguments. Final arguments were heard from both the sides. It was argued by the Ld. counsel for the complainant that this is a fit case for conviction of the accused as all the essential ingredients of Digitally signed by PRIYA PRIYA JANGHU Kamal Kant vs. Ashish Bhabhauria CC No. 6725/2018 Page no. 4 of 15 JANGHU Date:
2021.12.23 16:58:04 +0530 Section 138 of the Act read with Section 139 of the Act have been fulfilled and that the same has been aptly demonstrated by the complainant before the court. It was argued that accused has taken loan several times from the complainant and also availed loan for his relatives Rajnish Thakur and Abhishek Bhabhauria. It was argued that accused admitted his signatures on the cheque in his plea of defence recorded at the time of framing of notice under Section 251 Cr.P.C as well as in his statement under Section 313 Cr.P.C. He also argued that accused never filed a complaint against the complainant for misuse of cheque in question. He also argued that accused has never made any payment to the complainant after issuing the cheque in question i.e after 07.12.20217. It was argued that 2-3 more cases are pending against the accused, filed by the complainant and one FIR is also registered against the accused and his brother. Copy of the said FIR and compromise/settlement deed with one Mr. Babu Ram Thakur, father of Rajnish Thakur is filed. It was argued that accused failed to raise the probable defence to disprove the case of complainant and to rebut the presumption under Section 139 NI Act. Therefore, accused be convicted for the offence under Section 138 of the Act. The complainant has relied upon PARAMJIT SINGH VS. SHIV KUMAR 2016 (5) RCR CRIMINAL 690.
9. Per contra, ld. Counsel for accused reiterated the version of accused in answer to the notice under Section 251 Cr.P.C and in the statement under Section 313 Cr.P.C. He further argued that there were several discrepancies and inconsistencies in the statement made by complainant which casts sufficient doubt on case of the complainant regarding receiving loan amount back from the accused. It was argued that accused has taken loan of only Rs. 2,40,000/- from complainant and also transferred Rs. 5,49,000/- from his account and account of his wife to the account of complainant for repayment of the loan and interest amount . It was further argued that it is admitted by the complainant in his cross-examination that cheque in question was given to him by the accused in October 2016. It is was Digitally signed by PRIYA Kamal Kant vs. Ashish Bhabhauria CC No. 6725/2018 Page no. 5 of 15 PRIYA JANGHU JANGHU Date:
2021.12.23 16:58:11 +0530 further argued that the bank statement regarding repayment of the loan amount made to the complainant after October 2016 is already on record. The blank signed security cheques taken at the time of grant of loan was misused by the complainant. It was argued that the accused did not file any police complaint against the complainant for not returning his cheques as the complainant used to threaten the accused with misuse of his cheques. He argued that evidence of complainant suffered from material lapses and was not sufficient to establish the case against accused. He submitted that complainant has failed to prove his case beyond reasonable doubt and accused is entitled to be acquitted of offence u/s 138 of the Act. The accused has relied on BASALINAGAPPA VS MUDIBASAPPA, CRIMINAL APPEAL NO. 636 OF 2019 (arising out of SLP (Crl. ) No. 864/2018); VIJAY Vs. LAXMAN & ANR CRIMINAL APPEAL NO. 261 OF 2013 (arising out of SLP (Crl. ) No. 6761/2010); and T. VASANTHAKUMAR VS VIJAYAKUMARI CRIMINAL APPEAL NO. 728 OF 2015 (arising out of SLP (Crl. ) No. 8091 of 2011)
10. I have perused the entire record as well as evidence led by the complainant as well as by the accused.
11. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points, that:-
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned Digitally signed by PRIYA Kamal Kant vs. Ashish Bhabhauria CC No. 6725/2018 Page no. 6 of 15 PRIYA JANGHU JANGHU Date:
2021.12.23 16:58:28 +0530 unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
12. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) and secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability.
Section 118 of the N.I Act provides :
"Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made: (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows:
"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. For the offence under Section 138 of the Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall be rebutted only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it Digitally signed by PRIYA Kamal Kant vs. Ashish Bhabhauria CC No. 6725/2018 Page no. 7 of 15 PRIYA JANGHU JANGHU Date:
2021.12.23 16:58:36 +0530 exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
14. In the present case, accused has admitted his signatures on the cheques in question, in the notice U/s 251 Cr.P.C and in his statement U/s 313 Cr.P.C. Reference can be made to Judgment of Apex Court in Rangappa v. Mohan, AIR 2010 SC 1898, that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
Also in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut these presumptions by leading direct evidence and in some and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case. In light of aforestated legal position, let us carry out a scrutiny of the evidence led at the trial.
15. In the present case, the complainant by way of an affidavit led his own Digitally signed by Kamal Kant vs. Ashish Bhabhauria CC No. 6725/2018 Page no. 8 of 15 PRIYA PRIYA JANGHU JANGHU Date:
2021.12.23 16:58:43 +0530 evidence testifying the cheque was issued to him in discharge towards part liability, after he has advanced total loan of Rs.9,00,000/- in cash to the accused. The dishonour of the memo of cheque and legal demand notice were exhibited on record.
16. The principle defence taken by the accused as brought out from his defence evidence and statement under Section 313 CrPC, is that he has taken loan of only Rs.2,40,000/- from the complainant in small loan installments in cash. It is also his defence that the cheque in question alongwith other cheques were given as blank signed security cheques at the time of taking the first installment of loan from the complainant. He has repaid around Rs.6,50,000/- to the complainant and his wife through bank transfers and amount of Rs.4,50,000/- in cash to the complainant. The cheque has been misused by the complainant.
17. The defence of the accused is that he has already repaid much more than the cheque amount to the complainant, for which bank account statement of Punjab National Bank of the accused was produced for the period 14.12.2016 to 26.05.2017. Bank Statement Ex.DW-1/1 (Colly.) reflects transfer of total of Rs. 5,05,000/- ( Rs.60,000/- on 21.12.2016, Rs.1,50,000/- on 22.12.2016, Rs. 1,05,000/- on 22.12.2016, Rs.25,000/- on 23.12.2016, Rs.40,000/- on 30.03.2017, Rs.1,25,000/- on 03.04.2017) on various dates from 21.12.2016 to 03.04.2017 in the account of the complainant from the account of the accused.
18. The accused examined his wife as DW-2. The bank account statement of State Bank of India of the wife of the accused i.e. DW2 were produced for the period from 18.01.2016 to 25.03.2018. Bank statement Ex.DW2/A (Colly.) reflects transfer of total Rs. 44,000/-(Rs.20,000/- on 14.02.2017, Rs.14,000/- on 15.02.2017 and Rs.10,000/- on 17.03.2017) on various dates from 14.02.2017 to 17.03.2017 in the account of the complainant from the account of the wife of the accused.
Digitally
signed by
PRIYA
PRIYA JANGHU
Kamal Kant vs. Ashish Bhabhauria CC No. 6725/2018 Page no. 9 of 15 JANGHU Date:
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19. In his examination-in-chief (by way of affidavit), the complainant i.e. CW-1 stated that accused had taken a loan of Rs.2,40,000/- on 05.08.2015, loan of Rs.4,00,000/- on 15.03.2016 and another loan of Rs.2,60,000/- after 15 days of this loan. The complainant has stated that he has advanced total loan of Rs.9,00,000/- in cash to the accused. As per the case of the complainant, the loan sought to be recovered is Rs.5,01,000/- from the accused regarding the cheque in question. The complainant did not state anything as to the sources of fund of loan in his examination-in-chief. However, only in his cross-examination, he disclosed that his entire sources of loan amount advanced to the accused is from various committees of which he was a part. He further stated that all committees are maintained by one Dr. I.B. Singh but he never examined Dr. I.B. Singh as a witness. He further stated that he is a property dealer however, he could not provide any details about any of the property sold and purchased by him in the year 2015-2016.
20. The complainant in his cross-examination did not disclose his monthly or yearly income for the financial year 2015-16. The complainant has produced two hand-written receipts showing that the accused has financed the committee maintained by the complainant only at the stage of cross-examination of the accused. However, nowhere in his complaint or evidence by way of affidavit, has the complainant mentioned about the sources of loan amount from such committees maintained by the complainant with Dr. I. B. Singh.
21. The above version of the complainant cast serious doubt on the case of the complainant as no duration of the loan has been disclosed by him in the complaint or evidence affidavit. Furthermore, no reasonably prudent person would advance a loan of Rs.9,00,000/- in cash to the another person that to again and again in short time without executing any written document or taking any security for the same. The same is contrary to ordinary human conduct. The answers given in cross-
Digitally
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examination of complainant show a prevaricating approach in disclosing the sources of his fund for the loan advanced to the accused.
22. Also in John K. Abraham Vs. Simon C. Abraham, (2014) 2 SCC236, the Apex Court held that: -
"it has to be stated that in order to draw the presumption under Section118 r/w 139 of the Negotiable Instrument Act, the burden was heavily upon the complainant to have shown that he had required funds for having advanced the money to the accused; that the issuance of cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the chequ in favour of the complainant."
It was held by Hon'ble Supreme Court in K. Prakashan V. P.K. Surenderan;(2008) 1 SCC 258, and reiterated by Hon'ble High Court in Kulvinder Singh V. Kafil Ahmed; 2014 (2) JCC (NI) 100, that if a huge amount of money is advanced as a loan then the person who has purportedly advanced the loan must show the solvency to the extent of the loan either through bank account or through other means.
23. The complainant has also relied upon copy of two hand-written receipts in vernacular (Mark-DW-1/C-1 dated 15.03.2016 and Mark-DW-1/C-2 dated 05.08.2015) and one copy of loan agreement which is marked as DW-1/C-3 (Colly) dated 02.07.2015 which is stated to be issued/executed by the accused. The accused had admitted his handwriting and signatures on copy of receipts (Mark- DW-1/C-1 and Mark-DW-1/C-2) and has admitted the execution of the said loan agreement. The only averment of the accused regarding the same is that he was made to write and sign, the said receipts i.e Mark-DW-1/C-1 and Mark-DW-1/C-2 by the complainant as security at the time of repayment of the loan. It is further averred that the loan agreement Mark -DW-1/C-3 dated 02.07.2015 was executed for Rs. 45,000/- in the year 2015 which was repaid within one month of taking the Digitally signed by PRIYA Page no. 11 of 15 PRIYA JANGHU Kamal Kant vs. Ashish Bhabhauria CC No. 6725/2018 JANGHU Date:
2021.12.23 16:58:59 +0530 said loan in cash. However, he has never subscribed to any committee of complainant or otherwise. The same has been misused by the complainant. Such a mere averment is not sufficient to escape the terms of the documents. However, it is always open to the parties that the document was devoid of any consideration. As discussed above, through extensive cross-examination of the complainant, the accused has been able to cast the doubt of financial capacity of the complainant to advance such high amount of loan in case to the accused. This casts doubt on the existence of consideration as stated out in the receipts (Mark-DW-1/C-1 and Mark- DW-1/C-2). The copy of loan agreement Mark DW-1/C-3 was executed in year 2015 and accused has shown repayment in the year 2016-2017 made to the complainant. Copy of his bank statement, showing the repayment is also placed on record. Moreover, the said receipt is not a formally drawn up document. The tenor of the document alongwith failure of complainant to establish any financial standing, renders a document unreliable.
24. Moreover, the complainant has allegedly advanced total loan of Rs.9,00,000/- to accused in cash, which is in contravention of Section 269SS of Income Tax Act, 1961, wherein it is specifically laid down that if a loan is advanced which is more than Rs.20,000/-, it has to be by way of writing reflected in the books of account. However, in the present case, there is no document of alleged loan and complainant also stated in his cross-examination that he did not disclose the present loan in his ITR. The Hon'ble High Court in Kulvinder Singh Vs. Kafil Ahmed (supra), also held that when alleged loan in contravention of Section 269SS of Income Tax Act, 1961, it clearly creates doubt regarding truthfulness of stand taken by the complainant about advancement of loan.
25. The accused has shown repayment of around Rs.5,49,000/- done to the complainant through his account and account of his wife. The same is admitted by the complainant. However, the complainant stated that the repayment was Digitally signed by PRIYA PRIYA JANGHU Kamal Kant vs. Ashish Bhabhauria CC No. 6725/2018 Page no. 12 of 15 JANGHU Date:
2021.12.23 16:59:05 +0530 regarding some other loan advanced to the accused. Complainant has failed to prove that the repayment of Rs.5,49,000/- in account of the complainant from the account of the accused and account of his wife, was towards the repayment of another loan and not the loan in question. It is noted that the repayment is done in the year 2016-2017 and complainant has accepted in his cross-examination that cheque in question was given to him by the accused in October 2016 and it is the case of the complainant that he has advanced loan to the accused in the year 2015- 2016. It is further noted that the complainant has no where mentioned in his complaint or affidavit that the accused has issued post dated cheques to him at the time of availing the said loan.
26. Thus, the only conclusion to draw is that the sum of Rs.5,49,000/-
transferred from the account of the accused and his wife was towards the repayment of loan in question. It is interesting to note that as averred by the complainant himself, he again and again extended financial help to the accused to the tune of Rs.2,40,000/-, Rs. 4,00,000/-, Rs. 2,60,000/- within a short span of time. In the considered opinion of the court, it seems highly implausible from the view point of a reasonable and prudent man that he would again lend a huge sum to a person who has not repaid the earlier huge amount of loan.
27. In the case of 'Kulvinder Singh Vs Kafeel Ahmad' Cri.L.P.478 of 2011, decided on 04.01.2021, Hon'ble Delhi High Court has held that the basic principal in criminal law is that the guilt of the accused/respondent, must be proved beyond reasonable doubts and if there is any slightest doubt about the commission of an offence, then the benefit has to accrue to him.
28. At the same time, it is important to underscore the established canon of Criminal law that in in order to pass a conviction in a criminal case, the accused "must be" guilty and not merely "may be" guilty. The mental distance between Digitally signed by PRIYA PRIYA JANGHU Kamal Kant vs. Ashish Bhabhauria CC No. 6725/2018 JANGHU Date:
Page no. 13 of 15 2021.12.23 16:59:23 +0530 "may be" to "must be" guilty is a long one and must travel not on surmises and conjectures, but by cogent evidence. In this case, after the accused successfully rebutted the presumption of consideration by raising a doubt on the very factum of transaction. The accused has clearly presented a case which is superior in way and as per the settled law, this is all what is required, as pre-ponderance of probabilities is not a rigorous standard of proof, but only so much evidence as makes the court learn in, in favour of one side and not the other. Consequently, the benefit of doubt must go to the accused. The material on record does not suggest that the accused "must be" guilty whichever way one looks at it.
29. Apart from the testimony of the complainant, there is not even an iota of evidence on record to corroborate and prove the assertion of the complainant that the cheques in question were issued for discharging the outstanding liability towards the complainant. Complainant has not brought much evidence on record to prove his contention once the accused has rebutted the presumption. The complainant must lead affirmative cogent evidence to establish the precise and quantified liability of accused towards him on the date on which the cheque in question was presented to him for encashment. Consequently, the complainant has failed to prove whether on the date of presentation of cheque in question, the accused was under a legal liability to pay a sum of Rs.5,01,000/- to the complainant. Complainant has failed to bring on record sufficient evidence to prove that the said cheque in question was issued to discharge the legal liability towards the complainant.
30. It is a settled position of law that the case of complainant should stand on its own leg. It cannot take advantage of the weakness of the defence, nor can the Court, make out a case for prosecution and convict the accused on that basis. If the accused is not able to prove the defence taken by him, it does not mean the prosecution version is necessarily correct. Therefore, the contention of ld. Counsel Digitally signed by PRIYA Kamal Kant vs. Ashish Bhabhauria CC No. 6725/2018 PRIYA JANGHU Page no. 14 of 15 JANGHU Date:
2021.12.23 16:59:30 +0530 for complainant regarding the weak defence of the accused appears to be of no use in sailing through the case of complainant as the complainant has himself failed to prove the necessary ingredients which are required to bring home the guilt of accused U/s 138 N.I. Act.
31. In order to rebut the presumption of Section 139 of the Act, the accused is not required to bring direct evidence but should adduce sufficient cogent evidence or can rely upon the circumstances which the shows the probability of non- existence of consideration. Accused has to prove his defence on the scale of preponderance of possibility as held in Kumar Export Vs. Sharma Carpets (supra). In present matter, from the case of the complainant itself coupled with the consistence line of defence taken by him, the accused has been able to raise a reasonable probable defence and has been able to rebut the presumption under Section118/139 of the Act and the reverse onus cast upon him, has been discharged.
32. Since the accused has rebutted the statutory presumption, the onus again shifts back upon the complainant. Now the presumptions under Section118 & 139 of the Act will not again come for the rescue of the complainant and case of the complainant has to stand on his own legs. In the instant case, complainant has failed to discharge the burden of proof and could not proof his case beyond reasonable doubt.
33. In light of foregoing reasons, it is clear that accused Ashish Bhabhauria has succeeded in rebutting the presumption of legal liability and the complainant has failed to prove the same affirmatively. As a result, accused Ashish Bhabhauria Digitally signed stands acquitted from the offence under Section 138 N. I. Act. PRIYA by PRIYA JANGHU JANGHU Date: 2021.12.23 16:59:38 +0530 ANNOUNCED IN THE OPEN COURT (PRIYA JANGHU) TODAY i.e. 23.12.2021 METROPOLITAN MAGISTRATE DWARKA COURTS/ DELHI Kamal Kant vs. Ashish Bhabhauria CC No. 6725/2018 Page no. 15 of 15