Delhi District Court
Mukesh Kr. Kwatra vs . Chanchal Mehta on 3 February, 2020
IN THE COURT OF MS. SNIGDHA SARVARIA : MM01 (SHAHDARA) :
KARKARDOOMA COURTS : DELHI.
Comp. ID No. 286/16
DATE OF INSTITUTION : 03.12.2012
DATE RESERVED FOR JUDGMENT: 28.01.2020
DATE OF JUDGMENT : 03.02.2020
IN THE MATTER OF:
Sh. Mukesh Kumar Kwatra
S/o Sh. Somnath Kwatra
R/o 194/5E, Bhola Nath Nagar,
Street No. 14, Shahadra, Delhi110032
.......Complainant
VERSUS
Mr. Chanchal Mehta
S/o Sh. Sita Ram Mehta
R/o H5/21, Ram Nagar,
Krishna Nagar, Delhi110051
Also at:
Mehta Boot House,
J7, Railway Road,
Shahadra, Delhi32
..........Accused
JUDGMENT:
a) Srl. No. of the case & Date of institution : 286/16 & 03.12.2012
b) Date of commission of offence : after the 15th day of service of legal demand notice
c) Name of the complainant : Sh. Mukesh Kr. Kwatra
d) Name of the accused : Sh. Chanchal Mehta
e) Nature of offence complained of : S. 138 NI Act
f) Plea of the accused person : Accused pleaded not guilty
h) Final Order : Convicted.
i) Date of order : 03.02.2020 COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881 Page 1 of 16 Comp. ID No. 286/2016 Mukesh Kr. Kwatra Vs. Chanchal Mehta BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:-
Brief facts
1. The brief facts of the present complaint filed U/s. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act") are that the accused alongwith his father were having friendly and close relations with the complainant since long being resident of Shahdara and accused is running the business of sale of footwears in the name and style of Mehta Boot House at J-7, Railway Station, Shahadra, Delhi. It is further stated that the accused is also in the business of chit fund / committee and complainant was a member of that committee. It is further stated that complainant had invested an amount of Rs. 12 Lakhs in the said committee but the said amount has not been paid by the accused after completion of that committee. It is further stated that in the month of June, 2009, accused was also involved in the business of construction and started constructing flats for the purpose of sale purchase in Shahadra and other adjoining areas. It is further stated that in the month of July, 2009, accused had approached the complainant and sought friendly loan of Rs. 25 Lakhs from him and at that time accused had told that he would be needing that amount gradually and on account of trust and his old friendship with accused, complainant had given a sum of Rs. 7 lakhs to the accused at that time and thereafter from July 2009 to 2011 complainant had handed over a total sum of Rs. 25 lakhs as friendly loan to the accused. While receiving the loan, the accused assured the complainant that accused will refund the total amount of Rs. 50 lakhs at the earliest. In the insolvency petition no. CS 385/11 before Sh. Ritesh Singh, Ld. ADJ, NE, KKD Courts accused had accepted the factum of receiving loan of Rs. 25,00,000/-. In April 2011, complainant approached the accused for returning the entire loan amount and accused assured to pay the said amount within four months. However, instead of returning the hard earned money of the complainant, the accused filed the aforementioned insolvency petition. The counsel for accused had withdrawn the aforesaid involvency petition on 9.7.2012 after filing of written statement by the complainant herein. After withdrawal of said involvency petition, the accused had approached the complainant and Sh. Raj Mohan Sharma on 12.7.2012 at the residence of Sh. Raj Mohan Sharma and assured the complainant and Sh. Raj Mohan Sharma of returning their amount within one month and requested not to take any legal action Page 2 of 16 Comp. ID No. 286/2016 Mukesh Kr. Kwatra Vs. Chanchal Mehta against the accused. On 14.8.2012, after expiry of one month, the complainant and Sh. Raj Mohan Sharma contacted the accused on a phone on which accused assured them that accused will pay money to them very soon. On 18.8.2012, complainant and Sh. Raj Mohan Sharma approached accused at his shop at Mehta Boot House J7 Railway Road, Shahadra, Delhi for returning their money on which in discharge of his liability of Rs. 37 lakhs in total towards the complainant the accused issued post dated cheques of Rs. 5 lakhs bearing no. 328651 dated 01.10.2012 drawn on Syndicate Bank, Chhota Bazar, Shahadra, Delhi and further assured the complainant to return remaining amount of Rs. 32 Lakhs very soon. (including Rs. 12 lakhs of the committee). Accused had also issued cheque to Sh. Raj Mohan Sharma. On 5.10.2012, when the aforesaid cheque was presented for encashment by the complainant it was returned back with endorsement 'Image not clear present again with paper'. On 10.10.2012, the cheque was again presented for encashment but it was returned dishonored with remarks 'account inoperative / dorment' vide return memo dated 11.10.12. When complainant contacted the accused to return the entire amount, accused refused to return the amount. Thereafter, the complainant sent a legal demand notice dated 1.11.2012 through Regd. AD Post, and speed post and courier, which was deemed to be served upon the accused as he refused to accept it. Despite receiving of legal demand notice, accused has neither replied the said notice nor paid the due amount. Therefore, the accused has committed an offence, which is an offence under the provision of Section 138 of NI Act.
Proceedings Before Court
2. In the present complaint summons were issued against the accused. The accused entered appearance and notice of accusation was framed against the accused on 17.04.2013 to which accused pleaded not guilty and claimed trial. Defence of the accused was also recorded on the same date wherein he denied his signatures on cheque in question and receiving of legal demand notice. He stated that the present case is a false case filed to extract money from him. He showed his unawareness of the reason for dishonor of cheque in question.
3. In support of his case, the complainant examined himself as CW-1 and tendered his evidence by way of affidavit as Ex. C1 and was cross-examined. He Page 3 of 16 Comp. ID No. 286/2016 Mukesh Kr. Kwatra Vs. Chanchal Mehta proved cheque no. 328651 dated 01.10.2012 drawn on Syndicate Bank, Chhota Bazar, Shahadra, Delhi issued in favour of the complainant as Ex.CW1/A; return memo dated 06.10.2012 as Ex CW1/B with remarks 'Image not clear present again with paper'; return memo dated 11.10.2012 Ex. CW1/C with remarks 'Account inopeartive / Dorment'; Legal notice dated 01.11.2012 as Ex.CW1/D; postal receipts as Ex. CW1/E to Ex.CW1/G and courier receipt as Ex. CW1/H and Return Post Envelopes as Ex. CW1/I and Ex.CW1/J and present complaint as Ex. CW1/K. Complainant also examined CW2 Sh. Raj Mohan Sharma. CW1 and CW2 were cross examined at length. Thereafter, complainant closed complainant's evidence on 11.11.2014.
4. Statement of accused under S. 313 Cr.P.C was recorded on 09.02.2015 wherein he stated that he had never taken any loan from the complainant. The cheque in question was never issued by him to the complainant and even the same is not signed by him. He further stated that cheque was misused by the complainant by taking it from someone else. He denied any assurance given to the complainant qua encashment of cheque as he had not issued any cheque to the complainant. He denied receiving legal demand notice. He stated that the present complaint is false and has not been filed within stipulated period as legal demand notice is 01.11.2012 and complaint has been filed on 03.12.2012. He stated that complainant has deposed against him as complainant is an interested person and wants money from the accused. He stated that he has nothing to pay to the complainant and has no concern with the complainant regarding money.
5. Accused examined himself as DW1 and was also cross examined. He closed his defence evidence on 01.08.2016.
6. When the matter was at the stage of final arguments, accused had filed an application for sending the cheque in question alongwith specimen hand writing / signature of the accused for opinion of handwriting export / CFSL as he had denied his signature on cheque in question. The said appication was allowed vide order dated 13.09.2018. FSL result was received on 21.12.2019.
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7. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
Findings
8. The following are the components of the offence punishable under Section 138 of Negotiable Instrument Act:-
(1) drawing of the cheque by a person on an account maintained by him with a banker, for payment to another person from out of that account for discharge in whole/part any debt or liability, (2) presentation of the cheque by the payee or the holder in due course to the bank, (3) returning the cheque unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque, (4) giving notice in writing to the drawer of the cheque within 30 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount, (5) failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice.
9. As regards the defence raised by the accused that he did not sign on the cheque in question. The said defence is without any merits in view of the FSL result, which is an expert opinion, received on the application of the accused, which was allowed by the court. As per the FSL result the questioned signatures on the cheque (of the drawer of the cheque) were written by the same person who wrote the standard/specimen signatures. The standard/specimen signatures were given by the accused. Therefore, as per the expert opinion signatures of the drawer of the cheque are of the accused Chanchal Mehta. The very fact that the accused did not tender the FSL result in evidence also raises adverse inference qua the defence raised by the accused. The accused cannot take benefit of his own follies. Furtermore, firstly, the cheque in question was dishonoured for the reason of 'Account inopeartive / Dorment' and not signatures of the drawer did not match; secondly, the FSL result (now Ex. Z) received on the request of the accused is contrary to this defence of the accused and thirdly, on Page 5 of 16 Comp. ID No. 286/2016 Mukesh Kr. Kwatra Vs. Chanchal Mehta perusal/comparison of the signatures of the accused on the notice under S. 251 Cr.PC; statement under S. 313 Cr.PC; deposition as DW1; bail bonds and the vakalatnama of the counsel of the accused, which are part of judicial record and the signatures of drawer on the cheque in question Ex.CW1/A and other documents sent for FSL opinion bearing signatures of the accused under S. 73 Indian Evidence Act it is easily inferable that the signatures on the cheque Ex CW1/1 and on notice under S. 251 Cr.PC; statement under S. 313 CrPC; deposition as DW1; bail bonds and the vakalatnama of the counsel of the accused, which have signatures of the accused are all signed by the accused. Once, the signatures on the cheques in question have been proved to be of the accused it is apparent that the cheques in question were issued by the accused to the complainant and version of the complainant is thus, believable and the version of the accused is unbelievable from the point of view of an ordinary prudent man.
10. The contention of the counsel for the accused that he did not fill the details in the cheque himself is also without any merits, at this juncture it would be worthwhile to discuss the provisions under S. 20 and S. 118 of the Negotiable Instruments Act, which is as under:
20.Inchoate stamped instruments.-
Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in [India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as then case may be, upon it a negotiable instrument, instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount, provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.
118. Presumptions as to negotiable instruments of consideration 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;
(b) as to date- that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance- that every accepted bill of exchange was accepted within a reasonable time after its date its date and before its maturity;Page 6 of 16 Comp. ID No. 286/2016
Mukesh Kr. Kwatra Vs. Chanchal Mehta
(d) as to time of transfer.- that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of endorsements - that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamps-that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course; provided that, where the instrument has been contained from its lawful owner, or form any person in lawful custody thereof, by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
11. Further, in Mojj Engineering Systems Limited & Ors. Vs. A.B. Sugars Ltd.; 154 (2008) Delhi Law Times 579, the Hon'ble Delhi High Court had observed as under :-
7. Even otherwise, prima facie, it was the petitioners who had handed over the undated cheque for a certain amount to the respondent in terms of a contract between the parties. Since an undated cheque cannot be encashed, it can only mean that the petitioners had authorized the complainant to enter an appropriate date on it. In Young Vs. Grote (1827) 4 Bing. 253 it was held that when a blank cheque is signed and handed over, it means the person signing it has given an implied authority to any subsequent holder to fill it up. Similarly, in Scholfield Vs. Lord Londesborough (1895-1899) All ER Rep 282 it was held that whoever signs a cheque or accepts a bill in blank, and then puts it into circulation, must necessarily intend that either the person to whom he gives it, or some future holder, shall fill up the blank which he has left. This common law doctrine was also affirmed by Justice Macnaghten in Griffiths Vs. Dalton [1940] 2 KB 264 where it was held that the drawer of an undated cheque gives a prima facie authority to fill in the date. This aspect has also been incorporated in Section 20 of the Negotiable Instruments Act, which deals with Inchoate Stamped Instruments. The Supreme Court in T.Nagappa Vs. Y.R.Murlidhar, (2008) 5 SCC 633 while discussing the scope of Section 20 held that by reason of this provision, a right has been created in the holder of the cheque. Prima facie, the holder thereof is authorized to complete the incomplete negotiable instrument. In that view of the matter, all further issues that may be raised by the petitioners regarding the nature and scope of the authority of the respondent to put any particular date on the cheque in question, are all matters for trial.
8. It is not as if the cheque came to be issued without any consideration whatsoever in the first place or that there was such a glaring defect in the complaint that the decision of the Trial Court to issue summons has ex facie resulted in miscarriage of justice or an abuse of the process of Court, and therefore interference under Section 482 Cr.P.C. to quash the proceedings is warranted in the interest of justice. The question whether the consideration for which the cheque was issued was ultimately satisfied or whether the cheque was wrongly sought to be encashed, are all issues that must also be decided at the trial. The Supreme Court in the case of M.M.T.C. Ltd.
and Another Vs. MEDCHL Chemicals and Pharma (P) Ltd. and Another,(2002) 1 SCC 234 held as follows:
"13.....the well-settled law that the power of quashing criminal proceedings should be exercised very stringently and with Page 7 of 16 Comp. ID No. 286/2016 Mukesh Kr. Kwatra Vs. Chanchal Mehta circumspection. It is settled law that at this stage the Court is not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. At this stage the Court could not have gone into merits and/or come to a conclusion that there was no existing debt or liability."
The Court further held that:
"17. There is therefore no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they have to discharge in the trial. At this stage, merely on the basis of averments in the petitions filed by them the High Court could not have concluded that there was no existing debt or liability."
12. From the aforesaid discussion, it is manifest that by reason of the provision under S. 20 NI Act, a right has been created in the holder of the cheque. Prima facie, the holder thereof is authorized to complete the incomplete negotiable instrument. Mere averment to the effect that the accused/drawer of the cheque did not fill in the details on the cheque except for signing on the cheque is not sufficient. Thus, merely that allegation of issuance of incomplete negotiable instrument does not create absolute defence in favour of the accused unless corroborative evidence exists to show that by threat or fraud, a cheque was taken. There is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. Respondent has not denied his signatures on the cheques. Once he has admitted his signatures on the cheques he cannot escape his liability on the ground that the same has not been filled in by him. When a blank cheque is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blank which he has left. A person issuing a blank cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank cheque had been issued by him. Thus, this defence is of no assistance to the accused. (See also:Jaspal Singh vs State decided on 16.11.2016 by Hon'ble High Court of Delhi in Crl. Rev P. 160/2016; Lillykutty vs Lawrence - 2003 (2) DCR 610 (Ker) (DB) & Ravi Chopra vs State and Anr. - 2008 (2) JCC (NI) 169).
13. The accused denied receiving of legal demand notice. Considering that the legal demand notice was sent at H-5/21, Ram Nagar, Krishna Nagar, Delhi-110051 and J-7, Railway Road, Shahdara, Delhi-110032 as per Ex CW1/I and Ex CW1/J i.e returned envelopes the legal demand notices were refused by the accused and thus Page 8 of 16 Comp. ID No. 286/2016 Mukesh Kr. Kwatra Vs. Chanchal Mehta accused is deemed to be served with the legal demand notice, thus, clearly the said defence of the accused is without any merits and contrary to the record. Also, the defence of the accused that he did not receive legal demand notice Ex CW1/D is without any merits as in the decision in C.C. Alavi Haji v Palapetty Muhammad & Anr. (2007) 6 SCC 555, which states that in case, drawer of the cheque raises an objection that he never received Legal Notice U/s 138 of N.I. Act, he can within 15 days of the receipt of summons/ process of court make payment of the cheque amount and in case, he does not do so, he cannot complain that there was no proper service of Legal Notice U/s 138 of N.I. Act. Hence, in view of the Judgment in C.C. Alavi Haji (supra) the presumption of service of Legal Notice has arisen if not of the legal notice Ex CW1/D sent vide post then through issuance of summons by the court.
14. Since issuance of cheque in question by the accused is duly proved as discussed hereinabove, hence, presumption U/s.139 of the NI Act is raised. In Rangappa v. Sri Mohan AIR 2010 SC 1898 it was observed by the Hon'ble Supreme Court as under :
"14. 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 that extent, the impugned observations in Krishna Janardhan Bhat (supra) 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. 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. 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 accused/defendant cannot be expected to discharge an unduly high standard or proof. 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 doubts 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 and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. " (emphasis added) Page 9 of 16 Comp. ID No. 286/2016 Mukesh Kr. Kwatra Vs. Chanchal Mehta
15. In view of the decision in Rangappa's case laid down by the Supreme Court, the presumption raised under Section 139 of the NI Act is of legally enforceable debt or liability and it is for the accused persons to raise a probable defence to rebut the presumption.
16. S. 139 NI 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 S. 138 of the NI Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under S. 139 NI Act is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by S. 138 NI Act can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong those 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 defendant accused cannot be expected to discharge an unduly high standard of proof.
17. The 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 S. 139 NI Act, 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 cases the accused may not need to adduce evidence of his/her own.
18. As discussed herein above, under S. 139 NI Act strong rebuttable presumptions in favour of the complainant arise but same can be rebutted by the accused by way of credible defence.
19. The defence raised by the accused is that he had never taken any loan from the complainant. The cheque in question was never issued by him to the Page 10 of 16 Comp. ID No. 286/2016 Mukesh Kr. Kwatra Vs. Chanchal Mehta complainant and even the same is not signed by him. He further stated that cheque was misused by the complainant by taking it from someone else. He denied any assurance given to the complainant qua encashment of cheque as he had not issued any cheque to the complainant. He denied receiving legal demand notice. He stated that the present complaint is false and has not been filed within stipulated period as legal demand notice is 01.11.12 and complaint has been filed on 03.12.2012. He stated that complainant has deposed against him as complainant is an interested person and wants money from the accused. He stated that he has nothing to pay to the complainant and has no concern with the complainant regarding money.
20. The Hon'ble Supreme Court in Kumar Exports vs. Sharma Carpets - (2009) 2 SCC 513 held, that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused.
Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist.
21. As regards the defence of the accused that he did not take any loan from the complainant and has no concern with the complainant and the complainant wants money from the accused, the same is without any merits as the accused has not brought forth his bank account statement and books of accounts of his business to show that from July 2009 onwards he was having good financial status and was not required to take any loan from the complainant. It has not been explained what is the motive or reason for the complainant to extract money from the accused. Also, the accused has filed Mark A copy of certified copy of petition of Insolvency before Ld. ADJ, KKD according to Schedule A of the said petition the accused has mentioned liability of Rs. 25,00,000/- towards the complainant Mukesh Kwatra (srl no. 19 of Schedule A), this document demolishes the case of the accused qua liability towards the complainant.
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22. The defence of the accused that cheque in question was never issued by him to the complainant and even the same is not signed by him is falsified by the FSL report ( now Ex Z.) according to which the accused has signed as drawer on the cheque in question.
23. The contention of the accused that the present complaint is false and has not been filed within stipulated period as legal demand notice is 01.11.12 and complaint has been filed on 3.12.2012 is without any merits as cheque is dated 01.10.2012 and return memo is dated 11.10.2012 and legal demand notice was issued on 02.11.12 and present complaint filed on 03.12.2012 has been filed within the period of limitation.
24. As regards the defence of the accused that cheque was misused by the complainant by taking it from someone else, the accused has not brought forth any document i.e. cheque book issue statement or his bank account statement to show that the cheques of the series of the cheque in question were not issued in or around the year 2012 to show that the cheque in question was not issued to the complainant in the year 2012. Also, the accused has not explained how the cheque in question came in possession of the complainant. Also, if the cheque in question was not handed over by the accused to the complainant then who handed over the cheque in question to the complainant and why has also not been explained by the accused. Thus an adverse inference is raised qua the case set up by the accused.
25. The version of the accused is also not believable as he has not given any reason as to if the cheque in question was not issued to the complainant then what he did with the cheque in question which pertains to his bank account. Thus, doubts are raised qua the defence of the accused. The defence of the accused is also without any merits as despite knowledge of the presentation of the cheque in question the accused like any ordinary prudent man neither make any police complaint against the complainant nor issued any legal notice to the complainant nor filed any case against the complainant.
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26. The defence of the accused that accused has claimed that the cheque in question was issued for discharge of liability qua the chit fund/committee, which is illegal is without any merits as it is manifest from the complaint and evidence by way of affidavit and deposition of the complainant that the cheque in question was issued to the complainant by the accused in towards discharge of friendly loan of Rs. 25,00,000/- advanced to the accused by the complainant.
27. The accused has relied upon Section 3 of the Punjab Registration of Money Lender's Act, 1938 to state that the present complaint is barred as the complainant has no licence to lend money. The said defence is also not maintainable as only a suit for recovery and application for execution of decree are barred under S. 3 of the Punjab Registration of Money Lender's Act, 1938 if the lender does not has a licence for lending. The said provision under S. 3 of the Punjab Registration of Money Lender's Act, 1938 does not bar the complaint under S. 138 NI Act.
28. The burden to prove his defence is upon the accused which as discussed hereinabove he has failed to prove. According to S. 103 of Indian Evidence Act burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. S. 103 of Indian Evidence Act provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of S. 103 of Indian Evidence Act amplifies the general rule of S. 101 of Indian Evidence Act that the burden of proof lies on the person who asserts the affirmative of the facts in issue.
29. From the foregoing discussions, the accused has not led any such cogent evidence to rebut presumptions under S. 118/139 NI Act. In view of the aforesaid discussions, the court finds that the accused has not been unable to prove any probable defence and has failed to rebut the presumption raised U/s 118/139 of the NI Act.
30. The defence of the accused that complainant has not proved consideration in lieu of cheque in question and has not shown the loan transaction in his ITR and has shown no proof of transaction in question and has not mentioned any specific Page 13 of 16 Comp. ID No. 286/2016 Mukesh Kr. Kwatra Vs. Chanchal Mehta date of transaction and has not brought on record account books and ledger is without any merits as only after the accused has rebutted the presumption under S. 139 NI Act the burden shifts on the complainant to prove the source of money out of which loan was granted to the accused etc.
31. In this regard in Rohitbhai Jivanlal Patel vs State of Gujarat decided by Hon'ble Apex Court in Crl Appeal no. 508/2019 decided on 15.03.2019, it has been held as under:
In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the accused-appellant. The aspect relevant for consideration had been as to whether the accused-appellant has brought on record such facts/material/circumstances which could be of a reasonably probable defence.
32. Since the accused has failed to rebut the presumption raised U/s. 118/139 of the NI Act, there is no need to go into complainant's evidence for proving the complainant's case. There is nothing coming out in the cross examination of complainant's witness which would probablise the defence raised by the accused or falsify the case of the complainant. Therefore, the complainant has been able to prove his case beyond reasonable doubt.
33. The decisions in Mallavarapu Kasivisweswara Rao Vs. Thadikonda Ramulu Firm and Ors, Civil Appeal No. 5597/2001 dated 16.5.2008, B. S. Rana Vs. State of Punjab, Crl. Misc. No. 53101-M of 2006 dated 18.3.2008, 2007 1 AD (Cr.) (DHC)2013 titled Pine Product Industries & Anr. Vs. R P Gupta & Sons & Anr. , 2007 1 AD (Cr.) (DHC)217 titled Ashwani Lochan Aggarwal Vs. State, 2014 (1) JCC (NI) 15 titled M/s. Total Finaelf India Ltd. Vs. Smt. Rashmi Parnami, 2014 (1) JCC (NI) 17 Sadiaq Hussain Vs. Akhand Bharat Chit Fund, 2012 (7) LRC 352 (Del) titled Pawan Singhal & Ors. Vs. Gauri Shanker Deora, 2012 (7)LRC 357 Page 14 of 16 Comp. ID No. 286/2016 Mukesh Kr. Kwatra Vs. Chanchal Mehta (Del) titled M. A. Rashid Vs. Gopal Chandra & Anr. , Criminal Appeal No. 1410/2017 decided on 10.10.2007 titled K. PrakashanVs. P. K. Surenderan, Criminal Appeal No. 806/2005 decided on 11.7.2005 titled K. Gyansagar Vs. Ganesh Gupta & Anr., Criminal Appeal no. 518/206 dated 11.1.2008 titled Krishna Janadhan Bhat Vs. Dattatraya G. Hegde, VI (2002) SLT 272 titled C. Antony Vs. K. G. Raghavan Nair, VI (2002) SLT 275 titled Northern Indian Glass Industries Vs. Jaswant Singh & Ors., Criminal Appeal no. 261 of 2013 titled Vijay Vs. Laxman & Another, Criminal Appeal no. 1433-1434 of 2007 titled John K. John Vs. Tom Varghese & Anr., Criminal Appeal No. 358/2003 dt. 26.6.2007 titled G. Veeresham Vs. S. Shiva Shanker and another, 2012 V AD (CRI.) (DHC) 189 titled Vipul Kumar Gupta Vs. Vipin Gupta, Criminal Appeal No. 1012 of 1999 titled M. S. Narayana Menon @ Mani Vs. State of Kerela & Anr., Criminal Appeal No. 698/2006 titled R. Kalavathi Vs. The State of Tamilnadu & Ors., Criminal Appeal No. 2045/2008 titled M/s. Kumar Exports Vs. Sharma Carpets, 2007 (1) JCC (NI) 6 Virender Singh Vs. Laxmi Narain & Anr., Criminal Appeal No. 1650/2002 titled M. Senguttuvan Vs. Mahadevaswamy, Criminal Appeal No. 1221/2007 dt. 14.9.2007 titled Phulia Tudu and Anr. Vs. The State of Bihar (now Jharkhand), 2010 (1) JCC (NI) 98 titled M/s. Alliance Infrastructure Project Pvt. Ltd. Vs. Vinay Mittal, 2010 (1) JCC (NI) 105 Som Sugandh Vs. UOI & Anr. relied upon by the accused is set out in different fact situations and thus this judgment cannot be applied to the facts of the present case and is of no assistance to the accused. It is well settled that a judgment of a Court is only an authority for what it actually decides and not what logically follows from it and judgment of the Court is not to be read mechanically as a Euclids Theorem nor as if it was a statute. The Hon'ble Apex Court has held in Deepak Bajaj vs. State of Maharashtra & another AIR 2009 SC 628 that it is well settled that a judgment of a Court is not to be read mechanically as a Euclids Theorem nor as if it was a statute.
34. The complainant has been able to prove that the cheque in question i.e. cheque bearing no. 328651 dated 1.10.2012 drawn on Syndicate Bank, Chhota Bazar, Shahadra, Delhi issued in favour of the complainant as as Ex.CW1/A was issued in discharge of legally recoverable liability owed to the complainant by the accused.
Page 15 of 16 Comp. ID No. 286/2016Mukesh Kr. Kwatra Vs. Chanchal Mehta
35. Therefore, the accused Chanchal Mehta is convicted for the offence punishable U/s. 138 of the Negotiable Instruments Act in respect of cheque Ex CW1/A. Digitally signed by SNIGDHA SNIGDHA SARVARIA (Announced in open SARVARIA Date:
2020.02.03 Court on 03.02.2020) 15:37:03 +0530 (Snigdha Sarvaria) MM-01/Shahdara/KKD.
03.02.2020 Judge Code: 0530 Page 16 of 16 Comp. ID No. 286/2016 Mukesh Kr. Kwatra Vs. Chanchal Mehta