Delhi District Court
Hans Raj vs . Pyare Lal on 23 August, 2022
IN THE COURT OF MR. VAIBHAV CHAURASIA
METROPOLITAN MAGISTRATE - 04 : NORTH WEST DISTRICT
ROHINI DISTRICT COURTS : NEW DELHI
Hans Raj Vs. Pyare Lal
PS Budh Vihar
U/s 138 Negotiable Instruments Act
Date of Institution : 06.10.2016
Date of Judgment : 23.08.2022
JUDGMENT
(1) Serial number of the case : 23378/2016
(2) Name of the complainant : Sh. Hans Raj
S/o.: Sh. Satram Dass
R/o.: Y-2, Phase-I,
Budh Vihar, Delhi-110086
(3) Name of the accused : Sh. Pyare Lal
S/o Sh. Ram Saran
R/o F-1/5, Phase-I,
Budh Vihar, Delhi-110086
(4) Offence complained of/ proved : U/S 138 Negotiable Instruments Act,
1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : Acquitted
(7) Reserved for judgment on : 05.08.2022
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. In brief, it is the case of the complainant that complainant and accused are personally known to each other; that in the month of January 2015, the accused have approached the complainant at his residence and have requested the sum of Rs. 11 lakhs; that in view of friendship, the complainant gave the accused the interest free Case no. 23378/2016 Hans Raj Vs. Pyare Lal Page 1 of 10 loan of ₹ 11 lakh in cash on 20.02.2015; that in the month of May 2015, the complainant approached the accused and demanded his money back and in view thereof also in August 2016 and therefore the accused issued one cheque bearing no. 185994 dated 22.08.2016 for the sum of ₹ 11 lakh drawn on PNB, Sector 7, Rohini; the same was presented with the banker of the complainant which was returned dishonoured with remarks "funds insufficient" and thereafter legal notice was sent dated 02.09.2016 and despite the legal notice, accused have not repaid the loan amount. Hence, the present complaint was filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter "the Act").
2. The complainant led pre-summoning evidence by way of affidavit (Ex CW1/A) and relied upon documents i.e., : cheque bearing no. 185994 dated 22.08.2016 for Rs. 11 lakh/- drawn on PNB, Sector 7, Rohini, Delhi (Ex.CW1/1); the bank return memo dated 23.08.2016 (Ex CW1/2); legal notice dated 02.09.2016 (Ex CW1/3), postal receipt (Ex CW1/4 and Ex. CW1/5), and tracking report (Ex. CW1/6) which were duly considered by the Ld Predecessor and the accused was summoned vide order dated 27.10.2016 for offence u/s. 138 NI Act.
3. After the accused entered appearance, he was admitted to bail and notice was framed against him on 28.08.2017 by the Ld Predecessor wherein the accused stated his defence that the cheque in question bears only his signature and rest of the content of the cheque were not filled in his handwriting. The complainant misused the cheque in question which was given to him as a security towards the loan amount of Rs. 6 lakhs on interest rate of 5% as per general agreement dated 12.07.2016. He Case no. 23378/2016 Hans Raj Vs. Pyare Lal Page 2 of 10 had already repaid the loan amount along with interest to the complainant but the complainant did not return the cheque in question and filed the present false case against him. He did not owe any liability towards the complainant. He had received legal notice.
4. After the application of the accused under Section 145 (2) NI Act was allowed by the Ld Predecessor vide order dated 28.08.2017, the accused was permitted to cross- examine the complainant.
5. During his evidence, the complainant was duly cross examined by the counsel for accused in which he stated that he is into business of dairy cattle. He do not file income tax. He owns about ₹ 20,000 per month. He gave ₹ 11 lakh to the accused on 20.02.2015. He had sold the property bearing no. Y - 1/2, Budh Vihar, Phase-I, Delhi from which he gave the money to the accused. He denied that the accused only took ₹ 6 lakhs from him or that he gave the cheque in question to him as a security cheque. He denied that he had not returned a security cheque to the accused after receiving the complete payment of ₹ 6 lakh. The question was put to the witness with respect to agreement Mark CW1/D1 which was exhibited between the complainant and the accused in respect of transaction of ₹ 6 lakh to which the complainant agreed and admitted that it was executed and it was said that he will receive the money in two - three days. He denied that he did not return the cheque in question after receiving the payment as same was lost by him. He further denied that the said cheque has been misused by him by filling the amount of ₹ 11 lakh to extort the accused person. He denied that the accused have no liability towards him for any Case no. 23378/2016 Hans Raj Vs. Pyare Lal Page 3 of 10 payment. Further he admitted that accused gave him two checks, out of which he had returned one cheque to him.
6. The statement of accused was thereafter recorded under Sec 313 CrPC on 31.01.2017 wherein the entire incriminating evidence was put to the accused and he reiterated his defence. He stated The cheque in question bears only his signature and rest of the content is not filled by him. He did not take any loan from the complainant. He is to take ₹ 20,000 ₹ 25,000 on interest many times. He was regularly paying the interest. The complainant got sold his house and took ₹ 585,000 from the sale consideration towards the entire balance amount and he received the balance sale consideration. He did not remember whether he gave the check in question to the complainant since he's illiterate. But he had an agreement in respect of money. He had given the cheque as guarantee. He admitted to have received a legal notice.
7. The accused though revealed his intention to lead his defence evidence however despite opportunity he chose not to lead any evidence in her defence. Statement of accused to that effect was recorded.
8. Final arguments advanced by Sh. Yogesh Pandey, Ld counsel for the complainant and by Sh. Aman Saroha, Ld. Counsel for the accused have been carefully considered alongwith the entire evidence on record.
9. To prove an offence under Section 138 NI Act, it is required to be proved that:
(i) The accused issued a cheque on an account maintained by him/her with a bank for payment of money to another from out of that account;
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(ii) That cheque has been issued for the discharge (either in whole or in part) of any debt or other liability;
(iii)That cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) That cheque has been returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him/her from the bank regarding the return of the cheque as unpaid; and
(vi) The drawer of such cheque failed to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
10. In the case at hand, the accused has not disputed that the cheque in question has been issued on an account maintained by her with a bank and hence the ingredient (i) is deemed to proved as not disputed.
11. In respect of ingredient (iii) and (iv), the complainant has testified that the cheque in question ie Ex CW1/1 dated 22.08.2016 was returned dishonoured on 23.08.2016. During his cross-examination, no questions were put to the complainant nor any suggestions were given to him as to the cheque not having been presented to the bank within the period of its validity. Hence the ingredient (iii) ie the factum of the cheque Case no. 23378/2016 Hans Raj Vs. Pyare Lal Page 5 of 10 in question having been presented during the period of its validity is deemed to be proved as not disputed.
12. Further, with the factum of dishonour of the cheque in question being not disputed by the accused and rather as having been admitted by him in his statement under Sec 313 CrPC, the ingredient (iv) is also deemed to be admitted as not disputed.
13. In respect of the legal notice, as CW1, the complainant has testified that upon dishonour of cheque in question, he sent notice dated 02.09.2016 (Ex CW1/3) to the accused for return of the cheque amount vide speed post and courier on 02.09.2019 ie within 30 days of dishonour of the cheque. The complainant also relied upon postal receipt (Ex CW1/4 and Ex. CW1/5), and tracking report (Ex. CW1/6). The accused has however admitted receipt of the notice of demand. Therefore ingredient of demand stands satisfied.
14. In respect of ingredient (vi), it is pertinent to note that admittedly the accused has not made any payment to the complainant in respect of the cheque in question till date. Hence even the ingredient (vi) stands proved.
DEBT/LIABILITY
15. It is a well settled position of law that once execution of the 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 consideration by raising a probable defence. If the accused is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant who will be obliged to prove it as a matter of Case no. 23378/2016 Hans Raj Vs. Pyare Lal Page 6 of 10 fact and upon its failure to prove would dis-entitle him to the grant of relief on the basis of the negotiable instrument. 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. In such an event, the accused is entitled under law to rely upon all the evidence led in the case including that of the complainant as well. 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." (Reliance placed on Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal, (1993) 3 SCC 35 )
16. The NI Act also provides under Section 139 that 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. Thus, 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. It is a settled position that when an accused has to rebut the presumption under Section 139 , the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some Case no. 23378/2016 Hans Raj Vs. Pyare Lal Page 7 of 10 cases the accused may not need to adduce evidence of his/her own. (Reliance placed on Rangappa vs Sri Mohan, (Criminal Appeal no 1020 of 2010 decided by the Hon'ble Supreme Court).
17. In the present case, from the evidence on record, the accused has been able to bring on record certain facts which make the case of the complainant improbable.
18. Firstly, The complainant deals in dairy business and is not an income tax payee. The advancement of loan amount of ₹ 11 lakh is very high amount and the complainant being a businessman, it is not expected at all or it would be prudent that the loan amount of ₹ 11 lakh would be advance without any execution of any receipt or would not be handed over in front of any acquaintance. The strata of society from which both the parties belong to, it can be safely concluded that the cash amount of ₹ 11 lakh is indeed an high amount.
19. Secondly, the complainant had deposed that the amount was received by selling a property, however no evidence or document have been placed on record to prove the same. It was also apparent that after the defence evidence was closed, the complainant had every opportunity to lead its case to prove his financial capacity with respect to the amount of ₹ 11 lakh.
20. Thirdly, the complainant have agreed to the execution of Mark CW1/D1 and the original of it was also placed on record by the ordersheet dated 30.07. 2022. The document was duly proved. It is apparent from the perusal of the document wherein the accused have mortgaged his property to the complainant for the amount of the 6 lakhs and the same has been returned as for the content of the document however the cheque has not been returned which has been explicitly mentioned in the document Case no. 23378/2016 Hans Raj Vs. Pyare Lal Page 8 of 10 concerned. Therefore in view of the Mark CW1/D1, the defence of the accused stance proved on the standard of preponderance of probability and same defence was taken by the accused at this stage of framing of notice as well. Further if this was not a deed of the complainant, the complainant had every opportunity to prove the same. Rather complainant have admitted the execution of document and no oral evidence could be led in such a case contrary to the clause in the Mark CW1/D1 in view of Section 91 of Evidence Act. The fact of the complainant that he was to receive the money in two-three days, the complainant had every opportunity to examine the witnesses over Mark CW1/D1, but complainant have miserably failed to do so. Henceforth in view of the above reasons and observations, the court is of the opinion that accused have been able to place on record Mark CW1/D1 and the complainant have been duly cross-examined wherein accused have been able to displace the case of the complainant upon the preponderance of probability. Accused stands acquitted.
21. Hence, by bring forth the circumstances as enumerated above, the accused has discharged the initial onus of proof showing that the existence of debt/liability/consideration was improbable/doubtful and hence the onus shifted back to the complainant to prove it as a matter of fact.
22. However, the complainant herein has miserably failed to do so.
23. It is a settled law that standard of proof on the part of an accused and that of the prosecution a criminal case is different and while 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 (Reliance placed on Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54). Case no. 23378/2016 Hans Raj Vs. Pyare Lal Page 9 of 10
24. In view of the above discussion and in the totality of the facts and circumstances of this case, the complainant has miserably failed to prove that the cheque in question was issued in discharge of any existing legally enforceable debt or other liability.
25. Hence, with the presumptions arising in favour of the complainant under Sections 118 and 139 of the Act having been rebutted by the accused by preponderance of probabilities, and with the complainant failing to lead clear, cogent and credible evidence to prove that the cheques in question were issued in discharge of any legally enforceable debt or liability, the accused Sh. Pyare Lal S/o Sh. Ram Sharan is held not guilty for the offence punishable under Section 138 of the Negotiable Act and hence, he stands acquitted.
26. Accused Sh. Pyare Lal S/o Sh. Ram Sharan is directed to furnish bail bond and surety bond in the sum of Rs.25,000/- under section 437(A) of the Code of Criminal Procedure and is directed to be present before the Ld. Appellate Court as and when notice is served upon him.
27. File be consigned to Record Room after due compliance.
Announced in the open court on 23.08.2022 (VAIBHAV CHAURASIA) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 10 pages and each page bears my signature.
(VAIBHAV CHAURASIA) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi Case no. 23378/2016 Hans Raj Vs. Pyare Lal Page 10 of 10