Delhi District Court
Vipin Yadav vs . Mohinder Singh Nehra on 7 May, 2022
IN THE COURT OF SH. RAHUL JAIN,
METROPOLITAN MAGISTRATE, DWARKA COURTS, DELHI
C.C No. 3025/2017
Vipin Yadav Vs. Mohinder Singh Nehra
Sh.Vipin Yadav
S/o Late Sh.Virendar Yadav
R/o H.No. 229, Village Bagdola,
Sector08, Dwarka,
New Delhi110077.
..............Complainant
Versus
Sh.Mohinder Singh Nehra
S/o Late Sh. M.R.Nehra
R/o Flat no. 412,
Rastriya Appartment, CGHS,
Plot no. 15, Sector18A, Dwarka,
New Delhi110077.
............Accused
Date of Institution : 25.02.2017
Plea of the accused : Pleaded Not Guilty
Date of Reserving Judgment : 23.04.2022
Date of Judgment : 07.05.2022
Final order : Conviction
JUDGMENT
BRIEF STATEMENT OF THE REASONS FOR DECISION :
1. Vide this judgment, this Court shall dispose off complaint for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 filed by the C.C No. 3025/2017 Vipin Yadav Vs. Mohinder Singh Nehra Page 1/13 complainant Mr. Vipin Yadav against accused namely Mr. Mohinder Singh Nehra. In gist, it is alleged in complaint that complainant advanced friendly loan to the accused of Rs.5,00,000/ (Rupees Five Lakh only) on 16.06.2014 for a period of 18 months. After repeated request from the complainant after the elapse of time period of loan, the accused issued the present two cheques in question Ex.CW1/2.and CW1/3 of Rs. 2.5 Lacs each. Complainant presented the cheque, but same were dishonored vide memos Ex.CW1/4 and Ex. CW1/5 with reasons 'funds insufficient'. The complainant sent a legal demand notice on 23.01.2017 vide Ex.CW1/6 via postal receipt Ex.CW1/7 and since no reply or payment was made within statutory period of legal demand notice, hence, this complaint.
PRESUMMONING EVIDENCE & NOTICE
2. Presummoning evidence was led by the complainant side and after hearing complainant side, accused was summoned for offence punishable under Section 138 of The Negotiable Instruments Act, 1881. After appearance of accused, it was ensured that copy of complaint has been supplied. Notice was put to the accused by my predecessor for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 on 16.08.2017 wherein he denied availing any loan from the complainant and defended that the cheque was given to father of the complainant as security since father and the accused used to business together. Further, he said that he did not take the security cheques back as father of the complainant had expired and that goods taken from father of the complainant were already returned. The present cheques were misused. The complainant admitted only his signature on the cheque and stated that the rest of the particulars were not filled by him. Thereafter, matter was fixed for complainant's evidence and accused side was granted opportunity to crossexamine the complainant's evidence.
C.C No. 3025/2017Vipin Yadav Vs. Mohinder Singh Nehra Page 2/13 COMPLAINANT'S POST NOTICE EVIDENCE
3. Complainant stepped in witness box as CW1 adopted his affidavit of presummoning as his evidence reiterating almost all facts of complaint, stating all exhibits available on record and in gist in his crossexamination he deposed that accused was having friendly relations with his father and admitted that his father was having business of shuttering material used in construction. Further , he also admitted that there were business transactions between his father and accused since last 5 years. He further stated that " I do not have any idea if there was any cheque left with my late father kept with him as security" and again on his cross on second date "it is correct that the cheques in question were given to my father as security for the loan amount". When questioned on his financial capacity and source of funds, the witness stated that Rs. 3.5 Lacs were given after withdrawal from his account and remaining Rs. 1.5 lacs were kept at his home.
4. Complainant closed his postnotice evidence on 30.11.2019 and thereafter, matter was fixed for recording statement of accused.
STATEMENT OF ACCUSED
5. The statement of accused was recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 separately. Incriminating evidence was put to him. Accused denied all the allegations and stated that he had already made the entire payment to the father of the complainant and that he could not get the cheques back as father of complainant had died suddenly. He further stated that he does not have the liability of the cheque amount as he had already paid to the father of the complainant and same is reflected in his ITR of financial year 20122013 & 20132014. He also C.C No. 3025/2017 Vipin Yadav Vs. Mohinder Singh Nehra Page 3/13 admitted that amount in the cheques was filled by him. He admitted to have received the legal notice.
6. Accused was given opportunity to lead defence evidence and he himself stepped into the witness box as DW1. DW1/ accused reiterated in his chief that he was having business transaction with the father of the complainant and used to take shuttering material for construction from him. He stated that he used to have financial transactions with the father. He admitted that he had neither informed the bank to stop payment nor lodged any police complaint for misuse of cheque. He also admitted that he neither replied to the legal notice not filed any complaint regarding misuse of cheque even after receipt of legal notice. The Defence Evidence was closed on 25.03.2022.
7. Final arguments from both sides heard on 23.04.2022. Case file perused.
POINTS FOR DETERMINATION : 8.1 Whether the complainant has been able to establish ingredients of offence punishable under Section 138 of The Negotiable Instruments Act, 1881 beyond shadow of reasonable doubt against the accused or not? 8.2 Final order.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS :
9. To bring home conviction for offence punishable under Section 138 of The Negotiable Instruments Act, 1881, the complainant is obliged to prove :
(a) The cheque(s) was/were drawn/issued by the accused person(s) to the complainant on an account maintained by him/her/them/it with the C.C No. 3025/2017 Vipin Yadav Vs. Mohinder Singh Nehra Page 4/13 bank for discharge, in whole or in part, of any debt or liability.
(b) The cheques(s) was/were presented to the bank within a period of six months or within period of its/their validity.
(c) The cheque(s) so presented for encashment was/were dishonored.
(d) The payee/complainant of the cheque(s) issued a Legal Demand Notice within 30 days from the receipt of information from the bank regarding dishonourment of the cheque(s).
(e) The drawer of the cheque(s) failed to make the payment within 15 days of receipt of aforesaid Legal Demand Notice.
(f) The complaint was presented within one month after the expiry of above 15 days.
UNDISPUTED/UNCONTROVERTED FACTS :
10. At the outset, it is pertinent to mention herein that it is not in dispute that cheque in question belong to the accused, it bears his signatures, it was drawn on an account maintained by the accused with a bank and cheque in question was dishonored as alleged. The accused even admitted that the amount was filled by him. So, there is no need of discussion qua said ingredients and same can be regarded as being duly proved on record and being noncontroverted. The accused during his cross examination admitted having received the legal demand notice and hence there is no need of discussion of said ingredient in a complaint filed under the section 138 Negotiable Instruments Act.
CONTENTIONS QUA CONSIDERATION : 11.1(a) The contentions which have been raised by defence is that he never availed a loan of Rs.5,00,000/ (Rupees Five Lakh only) as alleged. The cheques C.C No. 3025/2017 Vipin Yadav Vs. Mohinder Singh Nehra Page 5/13 were stated to have been issued to the father as security for shuttering material taken from him on rent. The cheques weren't returned even though accused returned the shuttering material as accused claimed he did not take cheques back due to sudden demise of the father. It was the contention of the accused that the complainant has admitted that the cheque was given as security to the father and therefore the accused side has been able to rebut the presumption of consideration available in favour of the complainant as there was no consideration in question. It is contended that accused should be acquitted in this matter. 11.1(b) On the other hand, it is the contention of the complainant side that accused has taken multiple defences without proving any. It is argued that the accused firstly stated that he gave the cheques for security for shuttering material taken from the father of complainant and did not ask for return of the cheque as father had suddenly expired. Then, during his statement recorded u/s 313 Crpc , he suddenly brought new defence that he had made entire payment to the father of the complainant and that the same if reflected in his ITR 201213 & 201314 and thus impliedly admitted to have taken loan from the complainant. Next defence was that the he did not take back the cheques from the father of the complainant as some amount of Rs. 45,000/ was due towards him. The complainant thus argued that the accused has firstly been pleading inconsistent stands and in any case has not put any probable defence. The complainant further submitted that since no amount was paid, the accused drew cheque in discharge of the liability, hence, all ingredients of commission of offence punishable under Section 138 of The Negotiable Instruments Act, 1881 stands established on record, therefore, accused should be held guilty in this matter.
11.2 Submissions of both side considered.
Section 118 (a) of The Negotiable Instruments Act, 1881 provides as under : "Section 118. Presumption as to negotiable instruments. Until the contrary is proved, the following presumption shall be made: C.C No. 3025/2017 Vipin Yadav Vs. Mohinder Singh Nehra Page 6/13
(a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, was endorsed, negotiated or transferred for consideration;........."
Section 139 of The Negotiable Instruments Act, 1881 provides as under : "Section 139 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."
In matter of "Krishna Janardhan Bhat Vs. Dattatraya G. Hegde" (2008) 4 SCC 54, Hon'ble Supreme Court of India has observed : "32. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of the accused and that of the prosecution in a criminal case is different."
"34. Furthermore, whereas prosecution must prove the guilty of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of the 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 relies."
In matter of "Mallavarapu Kasivisweswara Rao Vs. Thadikonda Ramulu Firm" (2008) 7 SCC 655, Hon'ble Supreme Court of India (though it was a civil matter related to promissory note, but is relevant to refer herein) has held : C.C No. 3025/2017 Vipin Yadav Vs. Mohinder Singh Nehra Page 7/13 "17. Under Section 118 (a) of the Negotiable Instruments Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the nonexistence of consideration by brining on record such facts and circumstances which would lead the court to believe the nonexistence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal."
In matter of "Bharat Barrel & Drum Mfg. Co. V. Amin Chand Payrelal"
(1999) 3 SCC 35, Hon'ble Supreme Court of India (though it was also a civil matter related to promissory note, but is relevant to refer herein) has held : "12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118 (a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non existence of a consideration by raising a probable defence. If the defendant 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 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. The burden upon the defendant of proving the nonexistence 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 plaintiff is entitled under the law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118 (a) in his favour. The court may not insist upon the defendant to C.C No. 3025/2017 Vipin Yadav Vs. Mohinder Singh Nehra Page 8/13 disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant 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 nonexistence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist."
In matter of "Rangappa Vs. Sri Mohan" (2010) 11 SCC 441 which is a Full Bench Decision, Hon'ble Supreme Court of India while discussing above said provisions, judgments and other case law on the point has held : "26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To the extent, the impugned observations in Krishna Janardhan Bhat may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant".
"27. 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. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation.
C.C No. 3025/2017Vipin Yadav Vs. Mohinder Singh Nehra Page 9/13 However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendantaccused cannot be expected to discharge an unduly high standard or proof."
"28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, 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 doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, 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 cases the accused may not need to adduce evidence of his/her own."
11.3 So, precisely there is initial presumption of legally enforceable debt or liability against the accused side, but same is rebuttable. The standard of proof for rebuttal is preponderance of probabilities. Accused side can lead evidence in defence, even can rely on materials submitted by complainant and can rely upon circumstances also to show nonexistence of consideration or it being improbable and need not adduce evidence of his own for the same.
11.4 The defence of the accused side considered in view of abovecited case laws. The initial defence of the accused has been that he never availed any amount from the complainant. The accused has been inconsistent in his defence. Firstly, the accused pleaded that the cheques were C.C No. 3025/2017 Vipin Yadav Vs. Mohinder Singh Nehra Page 10/13 issued as security for shuttering material and did not take cheques back as the father of the complainant died suddenly. Then, in his statement u/s 313 Cr.Pc he suddenly brought new defence that he had made entire payment to the father of the complainant and that the same is reflected in his ITR 201213 & 201314 and thus impliedly admitted to have taken loan from the complainant. This statement is not on oath and does not have substantive value but can be considered as indicative evidence to fill the loopholes in the chain of circumstances. However, in his deposition under section 315 CrPC, the accused stated that he did not take back the cheques from the father of the complainant as some amount of Rs. 45,000/ was due towards him. He stated that he had written the amount in the cheques but did not write the name and date due to friendly relations. The said defence of the accused is wholly untenable and nothing but an afterthought.
Also, there have been major contradictions in the testimony of the accused. In his chief he stated that he contacted the complainant after 2025 days of the death of the father and asked him to return the cheques by settling the amount of Rs. 45,000/ while during cross he stated that he had asked for cheque 1015 days before the death of the father and stated that he had asked only once. Thus , one of both his statements is untrue and thereby impeaching his credibility as a witness. The accused has not been able to show consistency and coherence in his deposition.
11.5 The accused has not been able to show any step taken by him to get the cheques back, no complaint or stop payment instructions were issued to the bank. The accused did not even lodge any protest or complainant against the alleged misuse of the cheques. Even there is no reply to the legal demand notice duly received by the accused. The accused has presented absolutely no tenable defence but mere hollow averments.
C.C No. 3025/2017Vipin Yadav Vs. Mohinder Singh Nehra Page 11/13 11.6 From the above discussion, a presumption exists in the favour of the complainant and it is the accused who is to discharge the onus. The accused has miserably failed to discharge the same. Thus the accused has not been able to rebut the presumption even by any probable defence. Even the drawing of the cheque for the amount so written is not disputed and thus there is absolutely no tenable defence. A mere statement that the cheque drawn was given to a third person does not discharge the onus on the accused. The accused has not shown any cogent evidence to show that the cheque was not against any liability. Moreover, the accused did not protest filing of the present complainant, nor any police complainant was filed promptly against the alleged misuse of the present cheques in question. Even though the legal demand notice was issued and served on the accused in, however, no protest or police complainant was filed. In the light of the documentary evidences adduced by the complainant and mere verbal statement of the accused, the defence is not tenable. The accused has been unable to rebut the presumption which exits in favour of the complainant.
FINAL CONCLUSION
12. It stands established on record in the form of evidence of the complainant given vide affidavit (which can be read in evidence at all stages as per judgment of "Rajesh Agarwal Vs. State & Anr." 171 (2010) DELHI LAW TIMES
51), documents exhibited in evidence, admission(s) of accused during notice/accusations explained to him and statement of accused recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 that complainant provided loan to the accused on 16.06.2014, accused issued cheque in question for discharge of their liability, cheque got dishonored on presentment, complainant served legal demand notice upon accused demanding the cheque amount in question, however, accused failed to make the said payment within statutory period despite service. So, all the C.C No. 3025/2017 Vipin Yadav Vs. Mohinder Singh Nehra Page 12/13 ingredients of offence punishable under Section 138 of The Negotiable Instruments Act, 1881 stands established on record. The defences raised by accused side are not sustainable as per above discussions.
FINAL ORDER
13. In view of the aforementioned facts and circumstances, this Court is of the opinion that complainant has duly proved its case against the accused for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 beyond shadow of any reasonable doubt. Accordingly, accused namely Mohinder Singh Nehra stands convicted for offence punishable under Section 138 of The Negotiable Instruments Act, 1881.
14. This judgment contains 13 pages. Every Page of this judgment has been signed by me.
15. Copy of this judgment be given free of cost to the accused / convict.
ANNOUNCED IN THE OPEN COURT (RAHUL JAIN )
TODAY i.e 07th May' 2022 METROPOLITAN MAGISTRATE
DWARKA DISTRICT COURTS
NEW DELHI
C.C No. 3025/2017
Vipin Yadav Vs. Mohinder Singh Nehra
Page 13/13