Delhi District Court
Cc No.629334/16 Kanwar Singh vs Jaiveer Singh on 22 January, 2020
CC No.629334/16 Kanwar Singh VS Jaiveer Singh
DLSE020102512015
Presented on : 19-03-2015
Registered on: 21-03-2015
Decided on : 22.01.2020
IN THE COURT OF
Metropolitan Magistrate
AT ,SOUTH EAST
(Presided Over by Sh. Kamran Khan)
CT CASES/629334/2016
KANWAR SINGH S/o Late Sh. Shadi Ram, R/o H. No.312, Village
Aali Near Badi Choupal, Sarita Vihar, New Delhi-110076.
VERSUS
JAIVEER SINGH TOMAR S/o Suraj Mal Singh Tomar, R/o Flat
No.1, Pocket - D, Sec - 17, Dwarka, New Delhi-110015.
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Argued by: Sh.Rakesh Gaur, counsel for complainant.
Sh. Sanjay Kumar, counsel for accused.
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JUDGMENT
Complainant has filed the present complaint under Section 138 R/w Section 142 of Negotiable Instruments Act, 1881 on the averments that, being in cordial relations, accused approached him in the month of November, 2011 for the financial assistance of Rs.21Lacs, as he was in dire need of money of the said amount. After that, complainant approached CNR No:DLSE0102512015 Page No. 1 of 20 CC No.629334/16 Kanwar Singh VS Jaiveer Singh his brother in-law Sh. Ravi Awana S/o Sh. Krishan Lal Awana for loan of Rs.21Lacs. On 02.12.2011, brother in-law of the complainant gave Rs.21Lacs to him in the form of cash as personal loan and executed an agreement dated 02.12.2011. Thereafter, complainant gave the said amount of Rs.21Lacs to the accused as personal loan on 03.12.2011. It is further the case of the complainant that at the time of accepting the financial help, accused promised to repay the loan amount within two years from the date it was granted along with 18% per annum interest rate. As per the complainant, in the month of December, 2013 he called the accused for partial payment of the loan to which accused issued one cheque bearing no.759909 dated 15.12.2013 of Rs.8Lacs drawn on South Indian Bank Limited, Najafgarh, New Delhi(hereinafter referred as "cheque in question"). However, the said cheque was returned unpaid vide returning memo dated 27.12.2013 for the reason "bonafide confirmation required/payee name dif". Thereafter, complainant sent a legal demand notice dated 25.01.2013 through his counsel on 27.01.2014. Despite the service of the legal demand notice accused failed to make the payment and hence the present complaint.
2. In pre summoning evidence, complainant had examined CW-1 Sh. Ravi Awana, who deposed to have lent Rs.21Lacs to the complainant for two years on 02.12.2011 as interest free friendly loan. CW-1 also proved loan agreement Ex. CW1/1. Complainant had appeared in the witness box as CNR No:DLSE0102512015 Page No. 2 of 20 CC No.629334/16 Kanwar Singh VS Jaiveer Singh CW-2 in pre summoning evidence. He proved his affidavit of evidence Ex. CW2/A and proved following documents:-
Ex. CW2/1 : Cheque bearing no.759909 dated
15.12.2013 of Rs.8,00,000/-.
Ex. CW2/2 : Bank returning memo dated
27.12.2013.
Ex. CW2/3 : Legal demand notice dated
25.01.2014.
Ex. CW2/4 : Postal receipt dated 27.01.2014.
3. After taking pre-summoning evidence, accused was ordered to be summoned in this case for commission of offence under Section 138 of Negotiable Instruments Act, 1881, vide order dated 16.05.2015.
4. Accused appeared and was released on bail on 15.03.2016. On finding a prima facie case, notice U/s 251 Cr.PC was served upon the accused on 15.03.2016 to which he pleaded not guilty and opted to contest.
5. An application U/s 145 (2) Negotiable Instruments Act,1881 was filed by the accused in which he submitted that he has no liability towards the complainant and the cheque in question was given as security and later on the complainant had not returned the same. Vide order dated 10.05.2016 opportunity was granted to the accused to cross examine the complainant.
6. Complainant was duly cross examined by ld.
CNR No:DLSE0102512015 Page No. 3 of 20CC No.629334/16 Kanwar Singh VS Jaiveer Singh Counsel for the accused and his cross examination was recorded as CW-1. Complainant Evidence was closed vide separate statement of complainant on 19.12.2016.
7. Thereafter, accused was examined under Section 313 Cr.PC for explaining the circumstances appearing against him in complainant's evidence. He has denied the complainant's case and pleaded false implication and opted to lead evidence in his defence but no evidence was led by the accused and vide separate statement of the accused, defence evidence was closed on 22.07.2019.
8. I have heard ld. Counsel for the parties and have perused the case file carefully and meticulously.
9. Initiating the arguments, learned counsel for the complainant argued that, in discharge of the liability, accused issued the cheque in question (Ex. CW2/1) in favour of the complainant which got dishonoured due to the reason "bonafide confirmation required/payee name dif". After getting the information regarding the dishonour of cheque, vide cheque returning memo Ex.CW2/2, complainant served a legal demand notice Ex.CW2/3 to the accused. However, even after having the knowledge of dishonour of cheque, the accused did not make the payment. Further, it was argued that in the application U/s 145 (2) of Negotiable Instruments Act, 1881 as well as in the statement recorded U/s 313 Cr.PC two different defences were CNR No:DLSE0102512015 Page No. 4 of 20 CC No.629334/16 Kanwar Singh VS Jaiveer Singh taken by the accused. It was further pointed out that as per the agreement to sell dated 18.10.2010 Mark X, Rs.56,90,000/- stated to have been paid by the accused to the complainant whereas in the statement of accused U/s 313 Cr.PC accused stated to have paid Rs.49Lacs approximately. It was also argued that accused has not led any evidence to rebut the presumption raised u/s 139 of Negotiable Instruments Act, 1881. With these submissions, it was prayed that the accused be convicted for the offence committed U/s 138 Negotiable Instruments Act, 1881. In support of his arguments Ld. Counsel for the complainant relied on following authorities:
A) Hiten. P. Dalal vs Bratindranath Banarjee, (2001) 6 SCC 16 B) Rohitbhai Jivanlal Patel Vs. State of Gujarat and Ors. AIR 2019 SC 1876.
C) K.N. Benna vs Muniyaapan AIR 2001 SC 2895 D) Bir Singh V Mukesh, (2019) 4 SCC 197.
10. On the other hand, learned defence counsel argued that complainant is misleading the court and he is concealing the material facts and is trying to take undue advantage of Section 138 of Negotiable Instruments Act, 1881 and he is willfully harassing the accused. It was further contented that to rebut the statutory presumption U/s 139 of the Negotiable Instruments Act, 1881 an accused is not expected to prove his defence beyond reasonable doubt as is expected in a criminal trial and the said presumption can be rebutted by the accused either by adducing direct evidence to prove the non existence of any debt of liability CNR No:DLSE0102512015 Page No. 5 of 20 CC No.629334/16 Kanwar Singh VS Jaiveer Singh or by indirectly pointing out fallacies in the prosecution version. He further argued that complainant had not mentioned the source of loan in the legal demand notice and the fact that he took the loan from his brother-in-law. It was further contended that no loan document was executed between the parties despite the fact that huge loan was allegedly given by the complainant. It was also argued that Sh. Ravi Awana, who was examined as CW-1 in pre summoning evidence, was not examined by the complainant in post summoning evidence. It was also contended that in the cross examination, complainant had deposed to have monthly income of Rs.1,000-1500/- per month and hence the financial capacity of the complainant was not sufficient to lend such a huge amount as loan. It was also argued that no ITR return was filed by the complainant even after saying so in the cross examination. With these submissions, acquittal of the accused and dismissal of the complaint was prayed.
11. After hearing Ld. Counsel for the parties and having perused the case file carefully and meticulously this court is of the opinion that in order to bring home the guilt against the accused, complainant is duty bound to prove the following ingredients:-
a) Drawing of cheque by a person on any account maintained by him with a banker for payment to another person out of that account.
b) The cheque has been issued for the discharge, in whole or in part, of any legal and enforceable debt or other liability.CNR No:DLSE0102512015 Page No. 6 of 20
CC No.629334/16 Kanwar Singh VS Jaiveer Singh
c) Presentation of the cheque by the payee or the holder in due course to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier.
d) Returning the cheque unpaid by the drawer 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.
e) Giving notice within 30 days of receipt of the information by the payee from the bank regarding the return of the cheque as unpaid, demanding payment of the cheque amount.
f) Failure of the drawer to make payment to the payee or the holder in due course of the amount covered by the cheque within 15 days of the receipt of notice.
12. It goes without saying that it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence U/s 138 of Negotiable Instruments Act, 1881.
13. In the case in hand, it is not in dispute that the cheque in question is drawn by the accused from his bank account. Further, it is also not in dispute that the accused is the signatory of the cheque in question. Presentation of the cheque in question by the complainant is also not in dispute. Returning memo Ex. CW2/2 is also undisputed i.e., the cheque in question was returned unpaid for the reason "Bonafide Confirmation Reqd/ payee name dif". In the statement U/s 313 Cr.PC accused has submitted that payment of the cheque in question was CNR No:DLSE0102512015 Page No. 7 of 20 CC No.629334/16 Kanwar Singh VS Jaiveer Singh stopped. Complainant sent the legal demand notice, dated 25.01.2014 (Ex.CW2/3) to the accused on 27.01.2014. Though, in the statement u/s 313 Cr.PC, accused stated to have not received the legal demand notice but the address disclosed by the accused during the trial is the same address on which the legal demand notice was sent. As the legal demand notice, Ex. CW2/3, was sent on the correct address of the accused, therefore, a presumption of due service is drawn U/s 27 of General Clauses Act which provides that where the notice is sent to the correct address, the same shall be presumed to have been duly served. In M/s Darbar Exports and other Vs Bank of India, 2003 (2) SCC (NI) 132 (Delhi), the Hon'ble High Court of Delhi held that a presumption of service of notice is to be drawn where the notice is sent through registered post as well as UPC on correct address. Further, the Hon'ble Supreme Court in C.C. Alavi Hazi Vs Palapetty Muhammad & Anr, (2007) 6SCC 555 has held that"Any drawer who claims that he did not receive the notice by post, can, within 15 days of receipt of summons from the court in respect of the complaint U/s 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of complaint U/s 138 of the Act, cannot obviously contend that there was no proper service of notice as required U/s 138, by ignoring statutory presumption to the contrary U/s 27 of the CNR No:DLSE0102512015 Page No. 8 of 20 CC No.629334/16 Kanwar Singh VS Jaiveer Singh General Clauses Act and Section 114 of the Evidence Act.". Thus, the legal demand notice Ex. CW2/3 is held to have been duly served upon the accused. Finally, the complaint has been filed on 19.02.2014 i.e.,within the limitation period. Therefore, essential ingredients mentioned from (a) to (f) [except point b] in para no.11 above have been duly satisfied.
14. The only question remaining for determination is whether legally valid and enforceable debt existed qua the complainant and the cheque in question was issued in discharge of said liability / debt. It is pertinent to note that Section 139 of Negotiable Instruments Act, 1881 provides a statutory presumption that the cheque was handed over in respect of the debt or other liability. Under Section 118 of the Negotiable Instruments Act, 1881 every negotiable instrument is presumed to have been drawn and accepted for consideration. In the case of K.N. Benna vs Muniyaapan AIR 2001 SC 2895, it was observed as follows:
"Thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. This Court in the case of Hiten. P. Dalal vs Bratindranath Banarjee reported in (2001) 6 SCC 16 has also taken an identical view."
15. The Hon'ble Supreme Court, in the case of Hiten. P. Dalal vs Bratindranath Banarjee (2001) 6 SCC 16, observed as CNR No:DLSE0102512015 Page No. 9 of 20 CC No.629334/16 Kanwar Singh VS Jaiveer Singh follows:
"Because both Section 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras vs. A. Vaidyanatha Iyer, (AIR 1958 SC 61), it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused" (ibid).
16. Also, in the case of K.Bhaskaran vs Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
17. Now, in the case in hand, so far as the question of existence of basic ingredients for drawing of presumption U/s 118 and 139 of Negotiable Instruments Act, 1881 is concerned, from the aforesaid discussion, it is apparent that the accused has not denied his signatures on the cheque in question that has been drawn in favour of the complainant on a bank account maintained by the accused for a total sum of Rs.8,00,000/-. The said cheque was presented to the bank concerned within the CNR No:DLSE0102512015 Page No. 10 of 20 CC No.629334/16 Kanwar Singh VS Jaiveer Singh period of its validity and was returned unpaid for the reason mentioned in the bank returning memo. Hence, all the basic ingredients of Section 138 as also of Section 118 and 139 are apparent on the face of record. Therefore, it is required to be presumed that the cheque in question was drawn for consideration and the holder of the cheque i.e., the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the accused to establish a probable defence so as to rebut such a presumption.
18. 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". In Rangappa vs. Srimohan (2010) 11 SCC 441, the Hon'ble Supreme Court has observed:
"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 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 CNR No:DLSE0102512015 Page No. 11 of 20 CC No.629334/16 Kanwar Singh VS Jaiveer Singh 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 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."
19. In another recent judgment passed in the case of Basalingappa V/s Mudibasappa : AIR 2019 SC 1983, the Hon'ble Apex Court has summarized the principle enumerated on Section 139 of the Act, which are as under:
"23. We having noticed the ratio laid down by this court in above cases on Sections 118 (a) and 139, we now summarise the principles enumerated by this court in following manner:-
(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 defence. 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 CNR No:DLSE0102512015 Page No. 12 of 20 CC No.629334/16 Kanwar Singh VS Jaiveer Singh complainant in order to raise a probable defence. 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 defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to support his defence."
20. In Rohitbhai Jivanlal Patel Vs. State of Gujarat and Ors. AIR 2019 SC 1876 Hon'ble Supreme Court has held that :
"On the aspects relating to preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the court to conclude either that the consideration did not exist or that its non existence was so probable that the prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. This court has, time and again, emphasized that though there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfil the requirements of rebuttal as envisaged U/s 118 and 139 of NI Act." (Emphasis Supplied)
21. Now, in the case in hand the basic question to be answered is whether the accused has been able to rebut the presumption raised U/s 139 R/w Section 118 of Negotiable Instruments Act, 1881.
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22. In the case in hand, the primary defence of the accused, as per his application U/s 145 (2) Negotiable Instruments Act, 1881, is that he gave the cheque in question as security. In the statement U/s 313 Cr.PC accused further elaborated his defence by disclosing that an agreement to sell was drawn up for purchase of one DDA Plot of the complainant and after paying Rs.49Lacs approximately he got to know that the complainant has already sold the same to two other persons and at the time of executing the agreement to sell, he gave three cheques to the complainant after signing the same and filling all the particulars except the date. It is pertinent to note here that apart from the present complaint, in which there is a cheque of Rs.8Lacs, there is one another complaint pending in which the cheque amount is also Rs.8Lacs. Further, it is also an admitted fact that complainant had filed a criminal complaint U/s 138 Negotiable Instruments Act, 1881 against the accused in which the cheque amount was Rs.5Lacs and the said complaint has already been disposed off as withdrawn on 15.10.2014. The relevant order is Ex. CW1/D1.
23. On the other hand it is the case of the complainant that he gave Rs.21Lacs loan to the complainant on 03.12.2011 after borrowing the same from his brother in-law namely Sh. Ravi Awana and in the month of December, 2013 in discharge of partial liability accused issued the cheque in question which got dishonoured.
24. In the case in hand complainant had the CNR No:DLSE0102512015 Page No. 14 of 20 CC No.629334/16 Kanwar Singh VS Jaiveer Singh responsibility to not only prove that he gave loan of Rs21Lacs to the accused but also to prove that he took loan of Rs 21 Lacs from his brother in-law. In order to prove that loan of Rs.21Lacs was borrowed by the complainant from his brother in-law namely Sh. Ravi Awana, complainant has duly relied upon agreement Ex. CW1/1. However, the said agreement is of no aid to the complainant for two reasons. Firstly, the said agreement was proved by the Sh Ravi Awana at the time of pre summoning evidence only. Complainant has not examined Sh. Ravi Awana in post summoning evidence. Further, none of the marginal witnesses to the said agreement was also examined by the complainant in post summoning evidence. Hence, agreement Ex. CW1/1, infact remained unproved as per the law. Secondly, the agreement Ex.CW1/1 is undated i.e., no date of execution is mentioned on the same.
25. Ld. Counsel for the accused has questioned the financial soundness of the complainant to advance huge loan of Rs.21Lacs. Interestingly in the cross examination, complainant had deposed that he was doing nothing at the time of recording of his cross examination and previously 3-4 years prior to that he used to sit in the office of his brother Sh. Mahipal Singh and used to earn Rs.1000-1500/- per month. Hence, it is clear that the financial capacity of the complainant was not such that he on his own could have lend Rs.21Lacs as loan. As discussed above, it is the case of the complainant that he took loan of Rs.21Lacs from his brother in-law Sh. Ravi Awana, who was the most material CNR No:DLSE0102512015 Page No. 15 of 20 CC No.629334/16 Kanwar Singh VS Jaiveer Singh witness in the present case as he would have not only deposed regarding the giving of loan to the complainant but he would have also proved the agreement Ex. CW1/1. Further, there is nothing on record to show that even Sh. Ravi Awana was financially capable to give Rs.21Lacs loan to the complainant. Merely on the basis of an unproved agreement Ex. CW1/1 it does not stand proved beyond reasonable doubt that Sh. Ravi Awana gave loan of Rs.21Lacs to the complainant.
26. As discussed above, complainant's financial capacity is proved to be not sound as in the cross examination he duly deposed to have a monthly income of Rs.1000-1500/- per month. Hence, it is beyond logic that Sh. Ravi Awana would give loan of Rs.21Lacs to the complainant for two years even after fully aware of the financial capacity of the complainant to return the said loan.
27. Moving ahead, in the cross examination, complainant has duly deposed that he has no proof with regard to giving of loan of Rs.21Lacs to the accused. In the cross examination also complainant has duly deposed that the loan was given at his place in the presence of his brother Sh. Mahipal Singh. Hence, Sh. Mahipal Singh was the best witness for the complainant to prove that he gave loan of Rs.21Lacs to the accused. However, this witness was also not brought in the witness box by the complainant for the reasons best known to him.
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28. Moving further, it is also to be noted that the complainant has filed three complaints out which he has withdrawn one complaint bearing CC no.994/1/14 on 15.10.2014 which was for a cheque bearing no.759907 dated 18.11.2013 of Rs.5,00,000/-. In the cross examination, the complainant has deposed that he had withdrawn the said complaint only on the assurance of the accused that he shall make payment. However, no payment is stated to have been made by the accused and after that no action was taken by the complainant for the recovery of amount of Rs.5,00,000/-. It is very difficult to believe that the complainant had withdrawn the aforesaid complaint only on the assurance of the accused that he shall make the payment. Further, in the order dated 15.10.2014 Ex. CW1/D1 there is nothing mentioned that the complainant is withdrawing the complaint on the assurance of the accused that he shall make the payment and it has been duly recorded in the said order that the complainant do not want to pursue the said matter.
29. It is further to be noted that as per the complaint, complainant had called the accused after the lapse of two years for partial payment of the personal loan. However, in the cross examination complainant had duly deposed to have never demanded that return of loan amount till the filing of the complaint. Further, in the complaint it has been duly mentioned that the loan was given at interest rate of 18% per annum. However, in the cross examination the complainant fails to tell whether the loan was given at the interest rate of 18 % per annum CNR No:DLSE0102512015 Page No. 17 of 20 CC No.629334/16 Kanwar Singh VS Jaiveer Singh or not. There are some facts which a person do not forget when he give loan to the other person and one such fact is whether he is giving the loan on interest or not. Hence, not remembering of the fact that the loan of Rs.21Lacs was given to the accused on interest or not creates a doubt whether the complainant gave a loan of Rs.21Lacs to the accused or not. This doubt gets more aggravated when the complainant also fails to tell the denomination of the currency notes of the alleged loan, in the cross examination. Hence, in this manner accused was successful in unearthing material contradictions.
30. Moving ahead, it is to be noted that as per the complaint, the accused gave the cheque in the month of December, 2013 i.e., after the lapse of two years of giving of loan. However, in the cross examination complainant has duly deposed that he received three cheques from the accused as guarantee against the loan amount at the time of giving of loan i.e., in the year 2011. Hence, either in the complaint as well as in the affidavit of evidence or in the cross examination, complainant has not deposed truly. It is also interesting to note that Sh. Ravi Awana, who is the brother in-law of the complainant, takes the pain to get an agreement executed for giving of loan of Rs.21lacs to the complainant. However, on the next day, when the complainant has allegedly given the said amount to the accused as loan, complainant does not bother to execute any loan agreement with the accused who is not related to him in any manner. This fact is also indigestible.
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31. Lastly, it is the defence of the accused that he gave the cheque in question as security at the time of execution of the agreement to sell. As per the accused, complainant executed an agreement to sell Ex. CW1/D1 for purchase of a plot no.21, Sector 23B, Dwarka, Pocket 4. There is also an agreement to sell Mark X executed between the complainant and the accused on 18.08.2010 for the same plot. In the cross examination complainant has duly deposed to have sold plot to the complainant. There is a sale deed of the same property on record which is Mark Y executed by the complainant in favour of Sh. Anuj Tomar. In the cross examination, complainant has duly deposed that one Sh. Laxman Singh had filed a civil suit against him with regard to the aforesaid plot. Hence, from the aforesaid documents it is quite probable that the accused gave the cheque in question for the security purpose for the purchase of the aforesaid property.
32. In view of the aforesaid discussion, this court is of the considered opinion that the complainant has failed to prove that he took loan of Rs.21Lacs from his brother in-law and also failed to prove that he gave Rs.21Lacs loan to the accused. Further, the accused has been able to prove a probable defence that the cheque in question was given as security. Accordingly, accused has been able to rebut the presumption raised U/s 139 Negotiable Instruments Act,1881. Hence, complaint stands dismissed and the accused stands acquitted of the offence under Section 138 Negotiable Instruments Act,1881.
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33. Accused is directed to furnish bail bonds and surety bonds to the tune of Rs.20,000/- U/s 437-A Cr.PC.
ORDER: ACQUITTED
KAMRAN Digitally signed by
KAMRAN KHAN
KHAN Date: 2020.01.23
16:56:40 +0530
Announced in Open Court (Kamran Khan)
22.01.2020 MM (NI-Act 02), South East
Saket Court, New Delhi
Note: This judgment contains 20 pages and each page has been signed by me.
(Kamran Khan) MM (NI-Act 02), South East Saket Court, New Delhi CNR No:DLSE0102512015 Page No. 20 of 20