Delhi District Court
Anurag Pandey vs Om Prakash on 5 December, 2024
IN THE COURT OF SH. SIDDHANT KUMAR,
JUDICIAL MAGISTRATE FIRST CLASS (NI ACT)-06,
SOUTH DELHI DISTRICT, SAKET, NEW DELHI
JUDGMENT
DLST020173562023 Anurag Pandey Vs. Om Prakash CT Case No. 7120/2023 PS : Neb Sarai Anurag Pandey S/o Sh.Shugan Pandey, R/o C-1-546, Sangam Vihar, Near Sehrawat Gas Agency, Deoli, South Delhi, New Delhi-110062 .............Complainant Versus Om Prakash S/o Sh. Bhawani Ram R/o H. No. G-94, Samagam Vihar, New Delhi-110062 Also At C-1/381, Sanagam Vihar, Near Nanki Public School, New Delhi-110062 .............. Accused Date of registration : 17.08.2023 Date of Judgment : 05.12.2024 Decision : Acquittal Digitally signed by SIDDHANT KUMAR SIDDHANT Date: KUMAR 2024.12.05 14:25:22 CT Case No. 7120/2023 +0530 Anurag Pandey Vs. Om Prakash Page No.1 of 14 FACTS
1. The present complaint has been filed under Section 138 of the Negotiable Instruments Act, 1881, concerning the dishonor of a cheque issued by the accused in favor of the complainant. The complainant claims that the accused had approached him in December 2022, seeking financial assistance. After considering the request, the complainant provided a sum of Rs. 2,05,000/- to the accused on 31.10.2022. The said amount was arranged partly through withdrawal from the complainant's bank account and partly from cash in hand.
2. To evidence the transaction, the complainant stated that the accused signed a receipt on a copy of his Aadhaar card, acknowledging the loan amount. This document was filed along with the complaint to substantiate the claim of a friendly loan arrangement between the parties.
3. As repayment of the loan, the accused issued a cheque bearing no. 383243 dated 03.06.2023, for Rs. 2,05,000/- drawn on his bank account, in favor of the complainant. However, when the complainant presented the cheque for clearance on 05.06.2023, it was dishonored by the bank with the remarks "Account Closed."
4. Following the dishonor of the cheque, the complainant issued a legal notice to the accused on 01.07.2023, addressed to the accused's last known address, demanding the payment of the Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date:
2024.12.05 14:25:28 +0530 CT Case No. 7120/2023 Anurag Pandey Vs. Om Prakash Page No.2 of 14 cheque amount within 15 days. Despite the notice, the accused failed to make the payment, prompting the complainant to initiate the present proceedings under Section 138 of the NI Act.
5. In support of his case, the complainant had filed evidence by way of affidavit i.e. Ex.CW-1/1 which reiterated the contents of the complaint. He relied upon the following documents filed alongwith the complaint :
(i) Copy of bank statement of accounts of complainant is Ex.CW-1/A (colly);
(ii) Copy of aadhar card of accused and his family is Ex.CW-1/B;
(iii) The original cheque as Ex.CW-1/C;
(iv) Original return memo as Ex.CW-1/D;
(v) Legal Notice as Ex. CW-1/E (colly);
(vi) Postal receipts as Ex.CW-1/F;
(vii) Original return envelop of legal notice as
Ex.CW-1/G
(viii) Internet generated tracking report as Ex.CW-1/H.
(ix) Certificate u/s 65B of IEA as Ex.CW-1/I. APPEARANCE OF ACCUSED and TRIAL
6. Summons were issued to the accused on 12.09.2023. The accused entered appearance on 06.11.2023. As the offense is bailable, the accused was granted bail on furnishing bail bonds and surety.
Digitally
signed by
SIDDHANT
SIDDHANT KUMAR
KUMAR Date:
2024.12.05
14:25:33
+0530
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Anurag Pandey Vs. Om Prakash Page No.3 of 14
7. Notice under Section 251 Cr.P.C was framed against the accused on 17.02.2024. The accused pleaded not guilty and claimed trial. He took the defense that he had not taken financial assistance of Rs. 2,05,000/- from the complainant, as alleged. Instead, he admitted to having taken a loan of Rs. 50,000/- from the complainant approximately 18-20 months ago. He claimed to have repaid this amount through monthly installments of Rs. 3,000/- and by supplying vegetables to the complainant. The accused stated that the cheque in question was issued as security for this smaller loan, and his Aadhaar card was also taken by the complainant. He denied liability for the cheque amount, denied signing or filling the particulars of the cheque, and stated that the legal notice was sent to an old address where he no longer resided. He, however, admitted that the cheque belonged to his account.
8. The complainant adopted his evidence by way of affidavit in his examination-in-chief, reiterating the contents of the complaint. During cross-examination on 21.05.2024, the complainant affirmed that he had given Rs. 2,05,000/- to the accused on 31.10.2022 and that the accused had provided a signed copy of his Aadhaar card and his son's Aadhaar card on the same date. The Aadhaar card bearing the accused's signature dated 31.12.2022 was marked as Exhibit CW-1/B with the signature identified as Point 'A.' The complainant stated that the cheque particulars were filled in his presence by a person accompanying the accused.
Digitally
signed by
SIDDHANT
SIDDHANT KUMAR
KUMAR Date:
2024.12.05
14:25:38
+0530
CT Case No. 7120/2023
Anurag Pandey Vs. Om Prakash Page No.4 of 14
9. The complainant denied the suggestion that the loan amount was Rs. 50,000/- given on 19.05.2022 and that the accused had repaid the loan through weekly installments of Rs. 3,000/-. He admitted that the accused had filed a police complaint dated 25.05.2023, recorded as DD No. 78A, for which he was summoned to the police station. He further admitted that the police complaint mentioned that the cheque was given as security. The complainant denied filing the present case with mala fide intention. After the cross-examination of CW-1, the complainant's evidence was closed on the same date.
10. The statement of the accused under Section 313 Cr.P.C was recorded on 25.07.2024. The accused reiterated his defense, denying having taken a loan of Rs. 2,05,000/- from the complainant and maintaining that he had only borrowed Rs. 50,000/-, which was repaid through weekly installments. He stated that the cheque in question was blank and signed when handed over as security. He also alleged that the complainant had taken copies of his Aadhaar card, as well as the Aadhaar cards of his wife and son, which were blank at the time of signing. He denied liability for the cheque amount and claimed that the receipt on the Aadhaar card was fabricated after he had signed it.
11. On 26.09.2024, the accused chose not to lead any defense evidence. Accordingly, after recording his statement, the defense evidence was closed on the same date.
Digitally
signed by
SIDDHANT
SIDDHANT KUMAR
KUMAR Date:
2024.12.05
14:25:43
+0530
CT Case No. 7120/2023
Anurag Pandey Vs. Om Prakash Page No.5 of 14
ARGUMENTS
12. Learned counsel for the complainant contended that the date mentioned in paragraph 3 of the complaint, indicating the loan transaction date as 31.10.2022, was a typographical error and should be read as 31.12.2022. He emphasized that the accused admitted that the cheque belongs to an account maintained by him and, in his statement under Section 313 Cr.P.C, also admitted his signature on the cheque. The counsel argued that these admissions invoke the statutory presumption of liability under Section 139 of the NI Act.
13. The counsel further relied on the loan receipt signed by the accused on the copy of his Aadhaar card as proof of the loan transaction. To support the complainant's financial capacity, he referred to the bank statement submitted on record, which showed withdrawals corresponding to the alleged loan amount. He argued that these withdrawals were made to facilitate the payment to the accused.
14. Contrarily, learned counsel for the accused vehemently denied the allegations of a friendly loan of Rs. 2,05,000/-. He pointed out that the complainant himself contradicted his case, as the date of the loan transaction mentioned in paragraph 3 of the complaint (31.10.2022) differs from the date stated during cross- examination (31.12.2022). He argued that this discrepancy casts serious doubt on the complainant's version of events.
Digitally
signed by
SIDDHANT
SIDDHANT KUMAR
KUMAR Date:
2024.12.05
14:25:47
+0530
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Anurag Pandey Vs. Om Prakash Page No.6 of 14
15. The defense also highlighted the lack of an agreement or witnesses to corroborate the alleged loan transaction. Referring to the bank statement submitted by the complainant, the counsel argued that it did not show any direct transfer of funds to the accused. The marked transactions were UPI payments made to unrelated third parties, undermining the complainant's claim of having withdrawn funds for the alleged loan.
16. Regarding the Aadhaar card receipt, the counsel submitted that it was signed blank by the accused and later misused by filling in details to fabricate the loan receipt. The accused firmly denied liability for the cheque amount and maintained that the cheque was given only as security for a smaller loan of Rs. 50,000/- that had already been repaid.
LEGAL POSITION
17. The accused initially denied his signatures on the cheque during the framing of notice under Section 251 Cr.P.C. However, in his statement recorded under Section 313 Cr.P.C, the accused admitted that the cheque belonged to his account and bore his signatures. No evidence was led by the accused to substantiate his earlier denial or to establish that the cheque was not signed by him. Consequently, the cheque and the signatures thereon stand admitted. Once the signatures on the cheque are admitted, the statutory presumption under Section 139 of the Negotiable Instruments Act, 1881, is triggered, whereby it is presumed that the cheque was issued in discharge of a legally enforceable debt Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date:
2024.12.05 14:25:52 +0530 CT Case No. 7120/2023 Anurag Pandey Vs. Om Prakash Page No.7 of 14 or liability.
18. The presumptions in favor of the complainant in cases u/s 138 NI Act were explained by the Hon'ble Supreme Court in Basalingappa v. Mudibasappa, 2019 SCC OnLine SC 491. The relevant portion is stated below -
"(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defense. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defense. 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 they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defense, Section 139 imposed an evidentiary burden and not a persuasive burden."
19. In order to rebut the presumptions, the burden of proof is upon the accused to prove on a preponderance of probabilities that there was no liability for the amount of impugned cheque. Therefore, in the present matter, the onus of proof is upon the accused to raise a probable defense and to rebut the presumption of the existence of a legally recoverable debt. If the accused is successful in rebutting the presumptions against him then the burden of proof shifts towards the complainant to prove his case Digitally signed by SIDDHANT SIDDHANT KUMAR Date: KUMAR 2024.12.05 CT Case No. 7120/2023 14:25:57 +0530 Anurag Pandey Vs. Om Prakash Page No.8 of 14 without the aid of presumptions. Reliance is made upon the judgment of Hon'ble Supreme Court of India in Rajesh Jain v. Ajay Singh Special Leave Petition (Crl.) No.12802 of 2022. The relevant para reads - "Once the presumption under Section 139 was given effect to, the Courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the Court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section
138. If the Court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, without taking aid of the presumption. The Court would then take an overall view based on the evidence on record and decide accordingly".
APPRECIATION OF EVIDENCE
20. In cases under Section 138 of the Negotiable Instruments Act, 1881, once the execution of the cheque is admitted, a statutory presumption under Section 139 arises that the cheque was issued in discharge of a legally enforceable debt or liability. However, this presumption is rebuttable, and the burden of proof is on the accused to establish a probable defense by a preponderance of probabilities. If the accused successfully rebuts Digitally signed by SIDDHANT SIDDHANT KUMAR Date: KUMAR 2024.12.05 14:26:02 CT Case No. 7120/2023 +0530 Anurag Pandey Vs. Om Prakash Page No.9 of 14 the presumption, the onus shifts back to the complainant to prove the existence of a legally recoverable debt independently, without the aid of the presumption.
21. In the present case, the defenses raised by the accused are analyzed as follows :-
(i) Defense of Loan of Rs. 50,000/- The accused claimed that he had only taken a loan of Rs. 50,000/- from the complainant 18-20 months ago, which he repaid through monthly installments of Rs. 3,000/- and by supplying vegetables. However, no evidence was led by the accused to substantiate this claim. Moreover, the complainant categorically denied the suggestion regarding this smaller loan during his cross-examination. In the absence of any supporting evidence or credible material, this defense remains unproven and is therefore rejected.
(ii) Discrepancy in the Date of Transaction. A significant defense raised by the accused pertains to the discrepancy in the date of the loan transaction. Paragraph 3 of the complaint mentions the loan transaction date as 31.10.2022, while during final arguments, the complainant's counsel argued that the correct date was 31.12.2022, attributing the earlier date to a typographical error. This explanation, however, was raised for the first time during final arguments and not at any prior stage of the trial. During his cross-examination, the complainant explicitly acknowledged the date mentioned in the complaint (31.10.2022) but did not offer any clarification Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date:
2024.12.05 14:26:07 +0530 CT Case No. 7120/2023 Anurag Pandey Vs. Om Prakash Page No.10 of 14 about the discrepancy. The complainant had ample opportunity during evidence to address this issue but failed to do so. This inconsistency raises a serious doubt about the complainant's case on the standard of preponderance of probabilities.
(iii) Defense of Bank Transactions. The accused argued that the complainant's bank statement does not reflect any transfer of Rs. 2,05,000/- to the accused's account or any corresponding cash withdrawal. Upon examining the bank statement, it is evident that the marked transactions are UPI payments made to third parties and do not show any direct transfer to the accused. Furthermore, the descriptions and dates of the marked transactions do not align with the alleged loan transaction. This lack of corroboration further undermines the complainant's claim of having paid the loan amount to the accused.
22. Based on the above analysis, the defenses raised by the accused regarding the discrepancy in dates and the absence of evidence of a direct loan transfer are accepted. The accused has successfully rebutted the presumption under Section 139 of the NI Act by establishing a probable defense on a preponderance of probabilities. Consequently, the burden shifts to the complainant to independently prove the existence of a legally enforceable debt or liability. The complainant is then required to prove his case beyond a reasonable doubt.
23. The complainant alleged that a friendly loan of Rs.
Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date: 2024.12.05 14:26:12 +0530 CT Case No. 7120/2023 Anurag Pandey Vs. Om Prakash Page No.11 of 14
2,05,000/- was given to the accused. However, there is no written agreement or document evidencing the loan transaction. Considering the significant amount involved, it would have been prudent for the complainant to secure some form of documentation or involve witnesses to corroborate the transaction. The absence of such evidence becomes critical, especially when the accused has disputed the loan and raised a defense of partial repayment against a smaller amount. The lack of any corroborative material or witness testimony weakens the complainant's case.
24. A significant discrepancy in the date of the loan transaction further casts doubt on the complainant's case. The complaint mentions the loan date as 31.10.2022, but during final arguments, the complainant's counsel argued that the correct date was 31.12.2022, attributing the earlier date to a typographical error. This explanation, however, was raised only at the argument stage and not during the trial. In his cross-examination, the complainant specifically confirmed the date mentioned in the complaint but failed to clarify the discrepancy. This inconsistency in the timeline remains unexplained and creates doubt about the complainant's version of events.
25. The complainant also relied on his bank statement to demonstrate financial capacity and to corroborate the payment of the loan amount. However, upon examining the bank statement, it becomes evident that the transactions marked by the complainant do not show any direct transfer to the accused's Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date:
2024.12.05 14:26:19 +0530 CT Case No. 7120/2023 Anurag Pandey Vs. Om Prakash Page No.12 of 14 account or any cash withdrawal corresponding to the alleged loan. Instead, the marked entries reflect UPI payments to third parties on different dates, unrelated to the accused. This lack of clarity in the financial records further diminishes the credibility of the complainant's case.
26. Another significant piece of evidence relied upon by the complainant is a receipt purportedly signed by the accused on his Aadhaar card copy. The accused, however, disputed the authenticity of this receipt, claiming that he had signed a blank Aadhaar card, which was later misused. Despite the accused's challenge, the complainant did not examine any independent witness to prove that the accused signed the receipt in acknowledgment of the loan. This failure to corroborate the receipt's authenticity further undermines its evidentiary value.
27. In view of the discrepancies in the complainant's evidence, including the absence of a loan agreement, inconsistency in dates, lack of proof through the bank statement, and failure to authenticate the disputed receipt, the complainant has not been able to prove his case beyond a reasonable doubt. The cumulative effect of these deficiencies creates a reasonable doubt about the existence of a legally enforceable debt or liability.
28. In view of the foregoing discussion and analysis, the court finds that the complainant has failed to establish the case beyond a reasonable doubt as required under Section 138 of the Negotiable Instruments Act. While the presumption under Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date:
2024.12.05 14:26:23 +0530 CT Case No. 7120/2023 Anurag Pandey Vs. Om Prakash Page No.13 of 14 Section 139 NI Act initially operated in favor of the complainant, the accused has successfully rebutted the presumption by raising a probable defense. The complainant's evidence, including the alleged receipt of the loan, the bank statement, and the inconsistent date of the transaction, has not been able to withstand scrutiny. The discrepancies and lack of corroborative evidence create significant doubts regarding the existence of a legally enforceable debt or liability for the amount of the impugned cheque
29. As a result, the complainant has not been able to discharge the burden of proof that shifted back after the accused rebutted the presumption. In light of the evidence and circumstances on record, this court concludes that the accused cannot be held guilty of the offense under Section 138 of the NI Act. Accordingly, the accused Om Prakash is acquitted of the charge under Section 138 of the Negotiable Instruments Act.
This Judgment contains 14 pages and each page bears the signature of Ld. Presiding Officer.
A copy of the order be uploaded on District Courts website.
Pronounced in the open court today i.e. on 05.12.2024. Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date:
2024.12.05 14:26:29 +0530 (Siddhant Kumar) JMFC (NI Act-06) South District, Saket Courts, New Delhi 05.12.2024 CT Case No. 7120/2023 Anurag Pandey Vs. Om Prakash Page No.14 of 14