Delhi District Court
C.C. No.4137/17 Ajit Prasad vs Devender Aggarwal Page 1 Of 7 on 16 August, 2022
IN THE COURT OF MS. NEHA PANDEY,
MM-06,NORTH, ROHINI COURTS, DELHI
Ct.No. 4137/17
Sh. Ajit Prasad Bansal
S/o Shri Netram Bansal
R/o A-10, G.T.Karnal Road,
Adarsh Nagar, Delhi-110033 ...Complainant
Versus
Sh. Devender Aggarwal
S/o Shri Ramrechpal Aggarwal
R/o R-99/1, Model Town,
Delhi-110009. ...Accused
Date of Institution : 15.09.2017
Offence complained of : u/s 138 N.I. Act
Date of final arguments : 03.08.2022
Date of decision : 16.08.2022
Decision : convicted
JUDGMENT:
1. Vide this judgment, I shall dispose the present complaint filed under Section 138 N.I. Act against the accused. Before going further, it is necessary to dwell upon the brief facts of the case.
Brief facts:
2. It is the case of the complainant that he and accused are friends and shared family relations. The accused in the Month of July, 2016 approached the complainant for the financial assistance of Rs. 15,00,000/- and the complainant arranged the same at the interest of 24% per annum. It is C.c. No.4137/17 Ajit Prasad Vs Devender Aggarwal Page 1 of 7 further stated that an agreement dated 28.07.2016 Ex.CW1/1 was also executed between him and the accused in this regard. It is further submitted that in discharge of said liabilities, the accused issued three cheques bearing no. 682924, 682925 and 682929, all three dated 24.07.2017 for an amount of Rs. 5 lacs each drawn on UCO Bank, Model Town Branch, Delhi which are Ex.CW-1/2, Ex.CW-1/3 and Ex.CW-1/4 respectively. The accused assured the complainant that after expiry of 3 months loan period, he will make the payment, but, accused did not make any payment despite repeated requests and asked the complainant to present the cheques in question for payment. Thereafter, the complainant presented the same but the same were returned back on account of "funds insufficient" vide cheque returning memo dated 25.07.2017 which is Ex.CW-1/5. The accused even upon the intimation regarding the dishonor of the said cheques, did not make any payment and therefore, the complainant was left with no other options and he accordingly, issued a legal demand notice dated 05.08.2017 which is Ex.CW-1/6 and was dispatched through Postal Receipts Ex.CW-1/7 and Ex.CW-1/8 which were duly served upon the accused but he failed to make payment within statutory period. Hence, the present complaint was filed before this court.
3. Cognizance in the present complaint was taken against the accused vide order dated 18.09.2017, the accused entered his appearance on 05.04.2018. The Notice u/s 251 Cr.P.C against accused was framed on 07.06.2018 wherein, the accused denied the case of complainant and claimed trial. He stated that the cheques in question bears his signtures but he stated to have already made full payment to the son of complainant and denied receiving any legal demand notice in the present matter.
4. The accused was granted opportunity to cross examine the complainant by this court vide order dated 07.06.2018. Complainant examined himself in support of his case as CW-1 & exhibitted documents Ex.CW-1/1 to Ex.CW-
C.c. No.4137/17 Ajit Prasad Vs Devender Aggarwal Page 2 of 71/10 and tendered his evidence in chief by way of affidavit Ex.CW1/A. No other witness was examiend by the complainant and complainant evidence was closed vide his statement dated 18.08.2018. Statement of accused under Section 313 Cr.P.C was recorded on 12.10.2018 and no evidence was led in defence.
5. After conclusion of trial, final arguments were addressed by Ld. Counsels for the parties which are as under:
6. Ld. Counsel for the complainant submitted that the signatures of the accused on the cheque in question being not denied and the accused had not led any probable defence in the present matter to rebut the presumption under Section 139 N.I. Act, and thus, he should be convicted for under Section 138 N.I. Act.
7. Contrary to this, it has been submitted by Ld. Defence counsel that the complainant has failed to establish the existence of legal debt as payment was duly returned to complainant. It is further submitted that the case of the complainant being a false case, the accused should be acquitted in the present matter.
The Law:
8. Before proceeding to the merits of the case, it is considered important to lay down the basic provisions of law with respect to section 138 of the Act which are as follows:-
9. Section 138 of Negotiable Instruments Act, 1881 makes dishonour of cheques an offence. It provides that "where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the C.c. No.4137/17 Ajit Prasad Vs Devender Aggarwal Page 3 of 7 bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both".
10. Careful reading of section 138 of the Act reflects that there are three key ingredients which need to exist for there to be an offence under section 138 Negotiable Instruments Act, 1881. The three ingredients for requirements of section 138 are as follows :
(i) There is a legally enforceable debt.
(ii) The drawer of the cheque issued the cheque to satisfy part or whole of
the debt.
(iii) The cheque so issued has been returned due to insufficiency of funds.
11. It is a well settled principle of criminal jurisprudence that a criminal trial proceeds on the presumption of innocence of the accused i.e. an accused is presumed to be innocent unless proved guilty. Thus, normally the initial burden to prove is on the complainant/ prosecution to prove the guilt of the accused. Also, the standard of proof is beyond reasonable doubt. However, in offences under section 138 of the Act, there is a reverse onus clause contained in sections 118 and 139 of the Act.
12. Section 118(a) of the Act provides that until the contrary is proved, it shall be presumed that "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."
C.c. No.4137/17 Ajit Prasad Vs Devender Aggarwal Page 4 of 713. Further, Section 139 of the Act lays down 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."
14. Thus, section 139 of the Act puts the burden on the accused to prove his defence. However, the accused has to prove his defence on the balance of probabilities and not beyond reasonable doubt. Once the presumption is displaced, the accused is liable to be acquitted.
Point of consideration: Whether the cheques in question Ex. CW-1/2, Ex. CW-1/3 and Ex. CW-1/4 were issued by the accused in discharge of his legal liability in favour of complainant?
Findings:
15. In the present matter, since the signature on cheques in question being not disputed by accused in his statement u/s 313 Cr.P.C as well as under section 251 CrPC. In order to answer the above said question, the court has to see whether the accused has succeeded in rebutting the presumption raised against him under section 139 r/w 118 NI Act or not?. And for this inquiry, it is important to go through the examination of the complainant and defence witnesses.
16. The Complainant CW-1 adopted his affidavit Ex.CW-1/A in lieu of examination-in-chief and relied upon documents Ex.CW-1/1 to Ex.CW-1/10. In cross-examination by the defence counsel, he stated himself to be doing business of properly dealing with his brother in law Lajpat Rai Gupta in the name & style of Unique Propery, Adarsh Nagar, Delhi. He stated to have known the accused for last 15-20 years residing in same locality. He stated to have given loan in question to accused on 28.07.2016 in cash at his home in presence of his son Sahil Bansal. He denied preparing the documents Ex.
C.c. No.4137/17 Ajit Prasad Vs Devender Aggarwal Page 5 of 7CW-1/1 and he stated that the same was prepared by accused himself. He admitted the document Ex. CW-1/1 does not bear signatures of any witness. He denied receiving the loan amount from the accused within the period of 3 months.
17. No other witness was examined on behalf of the complainant.
18. The statement of the accused u/s 313 Cr.P.C was recorded on 12.10.2018 wherein he admitted receiving payment of Rs. 15,00,000/- from the complainant for a period of 3 months without any interest. He further stated that no acknowledgment in writing was given to the complainant and stated that three cheques in question were given as security which when he sought to take back after making payment of entire amount, the complainant stated that the same are not available at his home. He further stated that no acknowlegment was given by the complainant of receiving back the loan amount. He denied receiving any legal demand notice in the present matter.
19. No evidence was led in defence.
20. From the testimony of the complainant as well as defence witness and perusal of record, in the opinion of this court, the accused has failed to rebut the presumption raised against him u/s 118 r/w 139 NI Act.
21. In the present case, the signature of the accused on the cheques in question is not disputed. Regarding the service of legal demand notice, the accused has failed to put any question regarding his address not being proper and he has thus failed to show that the legal demand notice was not received by him apart from mere oral denial. Perusal of record reveals that the tracking report Ex.CW-1/10 which was sent on the address of the accused were returned back with the report "delivered". Thus, the service of legal demand C.c. No.4137/17 Ajit Prasad Vs Devender Aggarwal Page 6 of 7 notice Ex. CW-1/6 can safely be presumed upon the accused in terms of Section 27 of General Clause Act. The accused has not been able to bring anything on record to rebut the presumption against him u/s 139 NI Act. The accused's defence that the cheques in question were given as blank signed security cheques for the purpose of loan in question does not stand as he has failed to furnish any oral or any document evidence in this regard. The accused has not denied his signtures on the agreement Ex. CW-1/1 and regarding his defence to have made the payment of entire Rs. 15,00,000/- to the complainant, the accused has failed to bring any evidence oral or documentary in this regard. No prudent person will make the payment of huge amount of Rs. 15,00,000/- without taking receipt in this regard or without taking back his security cheques. The conduct of the accused in the present matter does not appear to be conduct of reasonable man. The accused has failed to prove the repayment of loan amount of Rs. 15,00,000/- to the complainant as alleged by him. The accused stated to have returned this loan amount to the son of complainant but again said person was not examined by the accused to prove his defence. The accused apart from mere denial and repeating his story of giving the cheque in question as security has failed to bring anyting on record to raise doubts in the story of complainant.
22. Accordingly, essentials of Section 138 N.I. Act being satisfied by complainant, the accused Devender Aggarwal stands convicted for the offence under Section 138 N.I. Act in the present case.
ANNOUNCED IN THE OPEN COURT ON 16th August 2022 (NEHA PANDEY) METROPOLITAN MAGISTRATE-06, NORTH,ROHINI COURTS, DELHI C.c. No.4137/17 Ajit Prasad Vs Devender Aggarwal Page 7 of 7