Delhi District Court
Complainant vs . on 26 November, 2015
IN THE COURT OF SHRI PUNEET PAHWA
METROPOLITAN MAGISTRATE 01 (N.I. ACT)
PATIALA HOUSE COURTS : NEW DELHI
Sh. Rajender Pal
B32A, 1st Floor,
Kalkaji,
New Delhi110019.
....................... Complainant
Vs.
Metro Exim Pvt Ltd.
B31A, 1st Floor,
Kalkaji,
New Delhi19.
Through: Sanjay Joshi (Director)
...................................Accused
Case No. Date of Institution
330/1 08.04.2005
306/1 30.03.2005
925/1 29.03.2005
329/1 08.04.2005
331/1 30.03.2005
Rajender Pal Vs. Sanjay Joshi Page No. 1 of 25
Offence Complained Of. : U/s 138 NI Act
Plea of the Accused. : Not Guilty
Arguments Heard On. : 17.11.2015
Final Order. : Acquitted
Date of Judgment. : 26.11.2015
− :: JUDGMENT ::
1.Vide this common judgment, I shall dispose of above mentioned five complaints, pending between the same parties, filed by the complainant u/s 138 Negotiable Instrument Act, 1881 (hereinafter referred to as "N.I Act").
2. In brief, the conjoint facts of all the five cases are that the complainant was in the business of readymade garments. The accused Sanjay Joshi who is the Director of Metro Exim Pvt. Ltd. had asked the complainant for a friendly loan of a huge sum of Rs.16 lakhs @24% interest. The said loan was given on a short terms basis to be repaid within a specific period of six months. It is alleged that to discharge the above said liability the accused had Rajender Pal Vs. Sanjay Joshi Page No. 2 of 25 issued the following cheques which are the subject matter of present five complaints:
TABLE 'A' Sl. CC CHEQUE NO./ DATE / AMOUNT RETURN MEMO RETURN No. NO. EXHIBIT DATE MEMO /REASON OF EXHIBIT RETURN 1 306/1 i) 887698, 30.01.2005 1,00,000/ 26.02.2005 Ex. CW 1/C
ii) 252593, 07.01.2005 50,000/ Funds Insufficient Ex. CW 1/A 2 329/1 i) 874102 1,00,000/ 28.02.2005 Ex. CW 1/C
ii) 874103 1,00,000/ Funds Insufficient
iii)874104 1,00,000/
iv) 874105 1,00,000/ 26.02.2005 Ex. CW 1/A
3 330/1 i) 887700 2,50,000/ 28.02.2005 Ex. CW 1/C
ii) 887699 2,50,000/ Funds Insufficient 26.02.2005 Ex. CW 1/A 4 331/1 i) 252594, 07.12.2004 50,000/ 28.02.2005 Ex. CW 1/C
ii) 252595, 07.11.2004 50,000/ Funds Insufficient
iii) 252596, 07.10.2004 50,000/
iv) 252597, 07.09.2004 50,000/ Ex. CW 1/A 5 925/1 i) 887697, 27.12.2004 53,000/ 26.02.2005 Ex. CW 1/C Ex. CW 1/A Funds Insufficient
3. It is alleged in the complaint that when the aforesaid cheques were presented by the complainant for encashemnt, the same were dishonoured. Thereafter, the complainant approached the accused a number of times but the accused avoided to meet the complainant and even avoided to talk on phone about the outstanding loan amount. Thereafter, a legal demand notice was issued by the Rajender Pal Vs. Sanjay Joshi Page No. 3 of 25 complainant calling upon the accused to make the payment of the cheques' amount within 15 days of receipt of the notice. But when the accused failed to make payment within 15 days of receipt of the legal demand notice, the complainant was constrained to file the present complaints u/s 138 N.I. Act.
4. Finding a prima facie case against the accused, the accused was summoned. The accused entered appearance and Notice u/s 251 Cr. P.C was served upon him, to which he pleaded not guilty and claimed trial.
5. It is worth mentioning that at the post summoning stage, fresh evidence by way of additional affidavit was filed by the complainant in two complaints bearing CC No.330/1 & 331/1. He was crossexamined on additional affidavit also. The complainant has also relied upon the documents as shown in Table'B'. It is pertinent to mention here that some of the original documents although have been furnished in one file, yet the same are part and parcel of other files also.
TABLE'B'
Sl. No. CC No. Type of Document Exhibit
306/1 Pay in Slip Ex. CW 1/B
Legal demand notice Ex. CW 1/D
1 329/1
(Proof of Delivery of Legal Demand Notice) Ex. CW 1/E
i) Postal Receipt
Rajender Pal Vs. Sanjay Joshi Page No. 4 of 25
330/1 ii) UPC Ex. CW 1/F
Iii) AD Card Ex. CW 1/G
331/1
Defence Procurement Order of December, 2004 (kept in Ex. CW 1/J
CC No.331/1)
925/1
Two letterheads (kept in CC No.329/1 & 331/1) Ex. CW 1/I
6. After his examination CE was closed. Statement of the accused u/s 313 Cr. P.C was recorded wherein he had denied the allegations levelled against him. Thereafter, the case was fixed for DE. In his DE the accused examined four witnesses i.e. Sh. Rishi Pal Singh as DW 1; Lt. Colonel Sumeet Walia as DW 2; Sh. Sanjay Joshi i.e. accused himself as DW 3 and; Sh. Arun Nautiyal as DW 4.
7. Basically the defence raised by the accused was that he had not taken any loan from the complainant. Although he had admitted that he had known to the complainant for the last 810 years yet he denied issuance of the cheques in question in discharge of any debt or liability towards the complainant. The accused had raised the defence that he used to go on business tours and that is why he used to leave blank cheques as security with the complainant to deliver the same to the shipping companies. The said cheques have been misused by the complainant. He further stated that since the complainant wanted to make his son a Director of accused company which was not agreed by the accused that is Rajender Pal Vs. Sanjay Joshi Page No. 5 of 25 why the complainant had misused the cheques in question. He has also raised the defence that some of the cheques were given to the complainant for investing the money in his garments business and the complainant had assured him that he would share part of the profits with the accused. Although he had admitted his signatures on the cheques yet he denied filling rest of the particulars by him. He had also stated that the letterheads filed by the complainant were not in his handwriting.
8. Ld. Counsel for the complainant has argued that the complainant has been able to prove his case beyond all reasonable doubt whereas the accused has failed to rebut the presumptions raised against him and, therefore, the accused is liable to be convicted. Ld. Counsel for the complainant has relied upon the following case law T. Vasanthakumar Vs. Vijayakumari 2015(3) LRC 255 (SC); C.C. Alavi Haji Vs. Palapetty Muhammed & Anr. (2007) 6 SCC 555; M/s General Auto Sales Vs. Vijayalakshmi 2005 CriLJ 1454 and K. Bhaskaran Vs. Sankaran Vaidhyan Balan & Anr AIR 1999 SC 3762.
9. On the other hand Ld. Counsel for the accused has argued that the accused has been able to rebut the presumptions raised against him whereas the complainant has miserably failed to bring Rajender Pal Vs. Sanjay Joshi Page No. 6 of 25 home guilt of the accused beyond all reasonable doubt as no documentary proof has been produced on record regarding advancement of loan of Rs.16 lakhs to the accused. Ld. Counsel for the accused has further argued that the version put forth by the complainant is highly unbelievable as an amount of Rs.16 lakhs was a huge amount and the complainant has failed to bring anything on record to show his source of income and as to how he had arranged such a huge amount. The cheques in question pertain to the period from September, 2004 to February, 2005 whereas the defence order placed on record itself shows that it was complied with in the month of November, 2004. If the accused had required funds for honouring the defence order he would have required those funds prior to that and not after the defence order honoured by him, which puts a doubt upon the case of the complainant. On these grounds Ld. Counsel for the accused has sought acquittal of the accused.
10. Arguments heard and file perused.
11. Bare perusal of Section 138 of the NI Act clarifies that five essential ingredients for completing the offence under Section 138 of the Act are as below:
Rajender Pal Vs. Sanjay Joshi Page No. 7 of 25i) Issuance of the cheque in discharge of a legally recoverable debt or liability;
ii) Presentation of the cheque with the bank;
iii) Returning of the cheque unpaid by the drawee bank;
iv) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, and
v) failure of the drawer to make payment within 15 days of the receipt of the notice.
12. It is pertinent to mention here that there are two presumptions of law as mandated by the Negotiable Instruments Act. According to Section 118 (a) of the Act, it shall be presumed that every negotiable instrument was made or drawn for consideration. By virtue of this clause, the Court is obliged to presume that the promissory note was made for consideration or until the contrary is proved.
13. According to Section 139 of NI Act "it shall be presumed, unless the contrary is proved that the holder of a cheque received the cheque for discharge in whole or in part, of any debt or other liability." Under Section 139 NI Act there is a legal presumption Rajender Pal Vs. Sanjay Joshi Page No. 8 of 25 that the cheque was issued for discharging a liability and that presumption can be rebutted only by the person who drew the cheque. This presumption can be rebutted by the accused by adducing evidence. So the burden of proof is on the accused.
14. The first and foremost ingredient of Section 138 N.I. Act is that the cheque in question must have been issued in discharge of legally enforceable debt or liability. It is also a settled law that to rebut the presumptions raised against the accused, the onus of the accused to prove the same is merely preponderance of probabilities and once this onus is discharged, it shifts back upon the complainant to prove the guilt of the accused beyond all reasonable doubt.
15. Now it is to be seen whether the accused has been able to rebut the presumptions raised against him or not? To rebut the presumptions raised against the accused, Ld. Counsel for the accused has crossexamined the complainant at length.
16. In his crossexamination the complainant deposed that when he had advanced the loan of Rs.16 lakhs, he was running a readymade garments shop in the name and style of Mod Associates, Mod Textiles and Mod Exclusive. He was earning Rajender Pal Vs. Sanjay Joshi Page No. 9 of 25 Rs.36 lakhs per year from all source of income. He stated that he was an income tax payee. He stated that he had advanced the loan of Rs.16 lakhs to the accused company Metro Exim Pvt. Ltd. in installments in cash. A question was put to the witness that had he shown the said loan amount in his accounts? He stated that he used to maintain books of account during the period of advancement of loan and some of the transactions pertaining to the loan amount of Rs.16 lakhs were reflected in the books of account. The witness was confronted with document Ex. CW 1/I (two in number) ( i.e. Acknowledgement of loan amount of Rs.4 lakhs and issuance of 8 PDCs for refund of the said amount kept in CC No.329/1 & Acknowledgement of loan amount of Rs.5 lakhs and issuance of 2 PDCs for refund of the said amount kept in CC No.331/1) and Ex. CW 1/J, which is a defence order placed by Directorate of General Office of Ordinance Services in the month of December, 2004 with the accused. It is pertinent to mention here that copies of the aforesaid documents have been kept in each file and have been exhibited differently. The witness denied the suggestion that these documents are forged and not in handwriting of the accused. Voluntarily he stated that Ex. CW 1/I is in the handwriting of the accused.
17. The complainant denied the suggestion that he and his son Rajender Pal Vs. Sanjay Joshi Page No. 10 of 25 Ankit were the employee in Star Exim Pvt. Ltd., who is the sister concern of Metro Exim Pvt. Ltd. He deposed that he had not given the loan of Rs.16 lakhs to the accused company after seeing any resolution for loan passed by the accused company. He stated that he had only seen the balance sheet of the accused company and also defence order Ex. CW 1/J. He stated that he did not get the copy of the balance sheet of the accused company to provide the loan. He did not remember when and how much loan he had issued to the accused company. He denied the suggestion that he was given eight cheques bearing no.252592 to 252600, of Rs.50,000/ each, by the accused company to start a new business of readymade garments. He stated that all the cheques in question were issued during the same period of 23 months. He admitted that he had paid the income tax on the amount of interest which accrued to him. He also stated that he had shown the income of interest in his accounts.
18. The complainant was further crossexamined by Ld. Counsel for the accused on additional affidavit filed by him in his post summoning evidence. During his crossexamination the witness stated that he did not remember the date of issuance of the document issued by the Defence Ministry, exhibited as Ex. CW 1/C in additional affidavit. It is pertinent to mention here that Ex.
Rajender Pal Vs. Sanjay Joshi Page No. 11 of 25CW 1/C & Ex. CW 1/J are one and the same document however, the same have been exhibited differently. He stated that only after perusing Ex. CW 1/C he had given the loan to the accused in the month of December, 2004 or 2005. He admitted that he had given the loan to the accused company after reading, considering and verifying the document Ex. CW 1/C. He further stated that there was an order to supply 18 to 20 containers in the supply order. After his examination CE was closed and the case was fixed for DE.
19. DW 1 Sh. Rishi Pal deposed in his examinationinchief that he was the Account Officer in the accused company and the complainant used to visit the office of the accused company. He further deposed that Star Exim Pvt. Ltd. was the sister concern of the accused company i.e. Metro Exim Pvt. Ltd and both the companies have the common office. The complainant was having friendly relations with the MD Sanjay Joshi i.e. accused. He deposed that the financial condition of the complainant was not sound at that period. The complainant had offered the accused to start a new business of readymade garments. The complainant had received 8 PDCs of Rs.50,000/ each, totalling to Rs.4 lacks, from the accused to make the delivery of goods from the market showing these cheques. He deposed that the accused used to Rajender Pal Vs. Sanjay Joshi Page No. 12 of 25 remain on business tours and he had left the blank cheques with the complainant to handover the same to his clients as security cheques. He further deposed that the accused also used to leave blank letterheads signed by him at his office for business purposes and to handover the same to the clients to secure their consignments. He stated that the accused had handed over the blank cheques and letterheads to the complainant and his son to handover the same to the clients of the company.
20. During his crossexamination the DW 1 admitted that he was an Account Officer in the accused company and had joined the company on 01.10.2000. He stated that till November, 2004 there was a supply of ten containers.
21. DW 2 Lt. Colonel Sumeet Walia, was confronted with the document Ex. DW 2/A (i.e. photocopy of amendment/supply order dated 01.12.2004) and Ex. DW 2/B. After seeing Ex. DW 2/A the witness stated that the amendment in respect of the containers is from quantity 15 to 10 and the value for the 10 containers would be Rs.16 lakhs. After seeing the document Ex. DW 2/B the witness admitted that the cheque slip is from the office of PCDA, New Delhi and it mentions bill dated 02.12.2004 against supply order dated 19.11.2004 for a total sum of Rs.15,99,980/.
Rajender Pal Vs. Sanjay Joshi Page No. 13 of 2522. DW 3 i.e. accused himself deposed in his examinationin chief that he was the Director of Metro Exim Pvt. Ltd. and was involved in the business of shipping and freight forward, having its office at B31, 1st Floor, Kalkaji, New Delhi19. He deposed that the complainant was known to him for the past 8 to 10 Yrs. He deposed that the complainant had got provided him the office on rent. He deposed that the complainant and his son Ankit Bhataiani were also employed with Star Exim Pvt. Ltd. as a part time. He stated that he did not start any business with the complainant and he had asked the complainant to return his cheques but he did not return those cheques. He stated that when the complainant did not return those eight cheques, he had issued a legal notice dated 01.03.2005 through his counsel and had requested him to return those cheques. He further stated that he had also made a complaint to the Police Commissioner, Delhi vide letter dated 01.03.2005. He stated that he used to remain on business tour and had handed over the cheques to the complainant to handover the same to his shipping clients as security of consignment. He stated that the two documents i.e. Acknowledgement of loan amount of Rs.4 lakhs and issuance of 8 PDCs for refund of the said amount and Acknowledgement of loan amount of Rs.5 lakhs and issuance of 2 PDCs for refund of the said amount, are not in his handwriting and Rajender Pal Vs. Sanjay Joshi Page No. 14 of 25 are forged one.
23. During his crossexamination DW 3 stated that he had not filed on record any document to show that he was carrying on business of freight forwarding. He stated that there was a partnership deed but the same was lost. He further stated that he had not issued any employment slip to the complainant or his son Ankit Bhatiyani. He stated that he used to maintain salary register however, the same has not been filed on record. He had around 15 16 employees in his company. He admitted his signatures on Ex. CW 1/1 however, stated that the contents of the same are not in his handwriting. He stated that he had not lodged any FIR against the complainant regarding misusing his cheques.
24. DW 4 Sh. Arun Nautiyal i.e. Ex. Proprietor of Star Exim and Director of Metro Exim Pvt. Ltd, stated that there was some garment business and some security cheques of Rs.50,000/ each, totalling to Rs.4 lakhs. During his crossexamination he stated that he had not brought any document to show that he was the proprietor of Star Exim. He stated that he was no more a Director in Metro Exim Pvt. Ltd nor that company exist any more. Although he stated that he used to maintain records yet denied of brining the same on account of the matter being very old. He admitted that no transaction took place in his presence. He Rajender Pal Vs. Sanjay Joshi Page No. 15 of 25 deposed that accused Sanjay Joshi had told him that the complainant wanted his son to be made a Director in the company apart from the garment business.
25. Basically the defence of the accused is two fold; i) That the complainant and his son were employee in Star Exim which is the sister concern of the accused company i.e. Metro Exim Pvt. Ltd. Both the companies were being run from the same premises and the complainant and his son used to have frequent visits to the office of the accused. Since the complainant and his son were very well know to the accused and the accused had handed over blank signed cheques to the complainant for the purpose of giving them to his clients. ii) That the complainant had approached the accused to start a new business in partnership with the accused and to start the said business the accused had issued eight cheques for Rs.50,000/ each, out of those eight cheques four cheques are subject matter of CC No.331/1 and one cheque is subject matter of CC No.306/1.
26. It is well settled that to rebut the presumptions raised against the accused the onus upon the accused is mere preponderance of probabilities and if the defence raised by the accused or the story forth by him appears to be probable then the onus shifts back upon Rajender Pal Vs. Sanjay Joshi Page No. 16 of 25 the complainant to prove the guilt of the accused beyond all reasonable doubt.
27. If we carefully peruse the complaints it can be said that the only thing which has been mentioned in the complaints is that the complainant had advanced a huge sum of Rs.16 lakhs @ 24% interest to the accused, which was to be repaid within a specific period of six months. No other detail as to when the said loan was given by the complainant is there nor there is any detail as to how the complainant had arranged such a huge amount of Rs.16 lakhs.
28. Admittedly the present complaints were filed in the year 2005 i.e. more than 10 years back and an amount of Rs.16 lakhs was a huge amount considering that the same was given in the year 2005. In the crossexamination of the complainant, the complainant had stated that he was earning Rs.36 lakhs yearly from all sources of his income and he was an income tax payee. However, he has not brought any document on record to substantiate his claim that he was earning Rs.36 lakhs per annum nor he had filed any ITR. He also admitted that he used to maintain books of account during the period he had advanced loan and some of the loan transaction of the loan advanced to the accused, were reflected in the books of account. But the same was not brought on record by him. He Rajender Pal Vs. Sanjay Joshi Page No. 17 of 25 admitted that he had not filed any document which shows that he had issued the loan to the accused. He also stated that he did not remember when and how much loan he had issued to the accused company.
29. The only documents on which the complainant is relying upon are the two letterheads allegedly issued by the accused in his own handwriting which are Ex. CW 1/I (colly) and one is Ex. CW 1/J which is the defence procurement order given to the accused. However, there are mark contradictions in the crossexamination of the complainant witness and also the complaints. Moreover, the affidavit filed by the complainant lacks in material particulars as to how he had arranged such a huge amount of Rs.16 lakhs and also when and in what manner the said loan was given to the accused. Once this defence was raised by the accused and a specific question to that effect was put to the complainant, the onus shifted back upon the complainant to prove his source of income and also to bring any cogent evidence on record to show that the loan was actually advanced to the accused. The above said three document which are Ex. CW 1/I (two in number) & Ex. CW 1/J are not sufficient enough to bring home the guilt of the accused beyond all reasonable doubt.
Rajender Pal Vs. Sanjay Joshi Page No. 18 of 2530. This court find force in the arguments raised by Ld. Counsel for the accused that if the loan was given by the complainant after seeing the documents Ex. CW 1/C which was the Order given to the accused in December, 2004, then the loan must have been given in December 2004. But the four cheques which are subject matter of CC No.331/1 bear the date '07.09.2004, 07.10.2004, 07.11.2004 & 07.12.2004' i.e. Prior to the date of advancement of alleged loan. Whereas, it is the case of the complainant himself that the loan was given for a period of six months. If the same was given in the month of December, 2004 then same would have been repayable after a period of six months i.e. approximately in the month of May or June 2005. This contradiction put a doubt upon the case of the complainant.
31. Moreover, the alleged loan transaction further becomes doubtful in view of the fact that as per the case of the complainant the loan was given for an amount of Rs.16 lakhs whereas the total cheques' amount in all five complaints comes out to Rs.13,03,000/. Now if the loan was given for Rs.16 lakhs that too @ 24 % interest then how could the same have been repaid by issuing cheques totaling to Rs.13,03,000/. This is not understandable and creates a huge dent in the case of the complainant.
Rajender Pal Vs. Sanjay Joshi Page No. 19 of 2532. So far as the case law being relied upon the complainant are concerned, none of the case law is applicable in the present case since the facts of those cases are materially different from the case in hand. The reasons for the non applicability of the judgments being relied upon by Ld. Counsel for the complainant have been discussed hereunder:
i) T. Vasanthakumar Vs. Vijayakumari (supra) the accused was convicted on the ground that although he had admitted taking of loan from the complainant yet his defence was that the said loan was repaid by him to the complainant.
But he had failed to bring any evidence to substantiate the same and thus failed to rebut the presumptions raised against him. Whereas, in the present case the facts are materially different from the said case.
ii) Similarly the case law C.C. Alavi Haji Vs. Palapetty Muhammed & Anr (supra) is also not applicable in the present case as the said judgment is basically on the issue of service of notice.
iii) Similarly in M/s General Auto Sales Vs. Rajender Pal Vs. Sanjay Joshi Page No. 20 of 25 Vijayalakshmi (supra) the accused was convicted as the complainant was able to substantiate his claim by bringing cogent documentary evidence by showing his ledger book. Moreover, it had also come on record that there were business dealings between the complainant and the accused and thus the accused was convicted.
iv) The judgment of K. Bhaskaran Vs. Sankaran Vaidhyan Balan & Anr (supra) is also not applicable as the same is primarily on the issue of territorial jurisdiction. Moreover, in that case the accused failed to rebut the presumptions raised against him whereas, in the present case the accused has been able to establish that the cheques were not issued in discharge of any legally recoverable debt or liability. In fact in the present case the accused has very categorically denied issuing of cheques in question to the complainant.
33. Hence, it can be said that the story put forth by the complainant appears to be highly doubtful, whereas the defence raised by the accused persons appears to be plausible and in fact probable. Thus the presumptions raised against the accused u/s 118 & 139 of N.I. Act stand rebutted and the onus shifts back upon the Rajender Pal Vs. Sanjay Joshi Page No. 21 of 25 complainant to prove the guilt of the accused beyond all reasonable doubt, which the complainant has miserably failed to do so. The complainant has failed to furnish any clinching evidence to support his case so as to bring home the guilt of the accused, beyond all reasonable doubt.
34. In Bharat Barrel & Drum Manufacturing Company v Amin Chand Payrelal (1999) 3 SCC 35 it was laid down as under:
"..The defendant can prove the nonexistence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument."
35. In Krishna Janardhan Bhat Vs. Dattatraya V. Hegde 2008 Crl.L.J. 1172, the Hon'ble Supreme Court has held that for proving the defence, accused is not required to step into the witness box and need not to examine himself. He may discharge his burden on the basis of the material already brought on records as he has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal Rajender Pal Vs. Sanjay Joshi Page No. 22 of 25 case is different. Court also held that prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relied. It was also held that where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration. Hon'ble Supreme Court also cautioned that the courts must be on guard to see that merely on the application of presumption as contemplated under Section 139 of N.I. Act, the same may not lead to injustice or mistaken conviction.
36. In Kamala S. Vs. Vidyadharan M.J. 2007 III AD (SC) 184, the Hon'ble Supreme Court again held that standard of proof in discharge of the burden in terms of section 139 of the Act being of preponderance of probabilities, the inference therefore can be drawn not only from the material brought on record but also from the reference to the circumstances upon which the accused relied upon. Categorically stating that the burden of proof on accused is not so high as that of the prosecution.
Rajender Pal Vs. Sanjay Joshi Page No. 23 of 2537. Again in Kumar Exports Vs. Sharma Carpets 2009 II AD (SC) 117, the Hon'ble Supreme Court held that accused in a trial under section 138 of the Act has two options to rebut the presumptions. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non existence 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 non existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated.
FINAL ORDER
38. Therefore, after going through the entire record and after hearing the arguments, this court is convinced that the accused has Rajender Pal Vs. Sanjay Joshi Page No. 24 of 25 been able to rebut the presumptions raised against him whereas the complainant has failed to bring home the guilt of the accused beyond all reasonable doubt. Accordingly, accused is acquitted of offence u/s 138 N.I. Act.
39. Now to come up for compliance of Section 437A Cr. P.C. Announced in the open Court on 26th November, 2015 (PUNEET PAHWA) MM (NI ACT1) PATIALA HOUSE COURTS NEW DELHI Rajender Pal Vs. Sanjay Joshi Page No. 25 of 25