Delhi District Court
Mahender Pal Singh vs . Kailash Kumar Kaushik Page 1 Of 20 on 25 February, 2023
IN THE COURT OF SHRI HARSHAL NEGI:MM-05(NI ACT):
SOUTH-WEST DISTRICT:DWARKA COURTS:NEW DELHI
Ct Cases No. 13730/2019
CNR No. DLSW02-019278-2019
Mahender Pal Singh
S/o Late Sh. S P Singh
R/o B-57, Patel Garden,
Kakrola, New Delhi-110078
...Complainant
Versus
Kailash Kumar Kaushik
S/o Sh. Mohan Lal Kaushik
R/o B-57, Front Side,
Second Floor, Patel Garden,
New Delhi-110078
Also at:
A-27A, Bhagwati Garden,
Near Dwarka Mor Metro Station
New Delhi-110059
...Accused
Offence complained of : U/s 138, NI Act, 1881
Date on which the complaint
was instituted : 22.04.2019
Plea of the Accused : Pleaded not guilty
Date of Pronouncement
of judgment : 25.02.2023
JUDGMENT
1. It would be convenient to summarize in the briefest terms the Ct. Cases 13730/2019 Mahender Pal Singh Vs. Kailash Kumar Kaushik Page 1 of 20 facts forming the foundation of the case in hand. It is the case of the complainant that the accused approached him for a friendly loan of Rs 2, 00,000/-. That the complainant gave the amount of Rs 2, 00,000/- on 19.09.2014 to the accused. That to discharge his liability the accused issued cheque bearing no 861894 of Rs 2, 00,000/- dated 06.01.2019 drawn on State Bank of India, Hauz Khas Branch. The complainant presented the cheques in his account maintained with is banker which was returned with the remarks "Funds Insufficient" vide bank return memo dated 25.02.2019. Thereafter, complainant served a legal notice dated 22.03.2019 upon the accused through his counsel demanding the said amount. That the accused replied to the legal notice through his reply dated 03.04.2019. That despite service of aforesaid notice the money was not repaid by the accused. Thereafter, complainant has filed the present complaint case.
Material on Record
2. The accused entered appearance on 23.10.2019. Notice under Section 251 Crpc dated 26.02.2021 was framed accordingly to which the accused pleaded not guilty and claimed trial. In his Notice under Section 251 CRPC the accused admitted that the cheque in question bears his signature. He further stated that he received the legal notice. He stated that he have issued the cheque in question as a security against the flat in November 2013. That he have already cleared all the payments due with Ct. Cases 13730/2019 Mahender Pal Singh Vs. Kailash Kumar Kaushik Page 2 of 20 respect to the Flat on 10th September 2014. That after the payment he requested the complainant to return the cheque orally as well as through a letter. That he have not taken any loan from the complainant.
3. The Complainant relied on the following documents:
a. Original cheque Ex. CW-1/A. b. Original Return memo is Ex. CW-1/B. c. Copy of legal notice is Ex.CW1/C. d. Original postal receipt Ex.CW1/D. e. Delivery Report Ex. CW-1/E. f. Reply of the accused dated 03.04.2019 to legal notice Ex CW1/F.
4. The complainant adopted his pre-summoning evidence as post summoning evidence and was cross examined on 23.04.2022.
5. In his cross examination the complainant stated that he have been residing at the address i.e. B-57, Patel Garden Kakrola, New Delhi since 2011. The counsel for the accused then introduced documents which were marked as Ex.CW1/D1 and Ex.CW1/D2 and confronted the same with the witness. The complainant stated that he cannot recall whether he have received Ex.CW1/D1. That he have received the cheque in question in and around September 2014. That he run a chemist shop. That he file his ITR and can bring the ITR for the year 2013-14. That he have not shown this loan in his ITR. That he had advanced the loan in cash since accused was his friend. He affirmed that the accused had purchased one flat from him. That the accused had made the final payment of said flat prior Ct. Cases 13730/2019 Mahender Pal Singh Vs. Kailash Kumar Kaushik Page 3 of 20 to 2014. He again stated that it might be around 2013. The counsel for accused introduced another document i.e. complaint made to the DCP Dwarka which was marked as Ex.CW1/D3 [running into two pages] and a complaint made to SHO Dwarka which was marked as Ex.CW1/D4 and also the copy of FIR which was marked as Ex.CW1/D5 and confronted the same to the witness. The complainant stated that he do not know about these complaints. He voluntarily stated that it might have been filed to create pressure on him. That the police officials never summoned him with respect to the present complaints. He denied the suggestion that the liability if any is time barred and cheque in question was issued as security cheque for providing bank details. He affirmed that accused has made the entire payment of the flat by 10.09.2014. He denied the suggestion that despite repeated requests of accused to return the cheque in question he never returned the cheque. He further denied the suggestion that the accused wrote a letter Ex.CW1/D for requesting him to return the cheque in question. He denied the suggestion that accused and he do not have friendly relations. He voluntarily stated that accused came to the acquainted with the complainant through a common friend namely Raj. That Raj has also arranged the flat to the accused. He denied the suggestion that he never advanced an amount of Rs.2 lakhs to the accused. He voluntarily stated that he have given Rs.2 lakhs to accused in presence of Mr. Raj. That he have not mentioned this fact in his affidavit. He voluntarily stated that he had informed about the presence of Mr Raj to his Ct. Cases 13730/2019 Mahender Pal Singh Vs. Kailash Kumar Kaushik Page 4 of 20 counsel. That Mr Raj is his friend since 2007. He denied the suggestion that he is deliberately improving his case by mentioning about Mr. Raj. The counsel of the accused then confronted Ex CW1/F to the witness. The complainant stated that he cannot say whether he have received Ex.CW1/F. That he cannot say whether he have replied to the notice dated 03.04.2019 Ex.CW1/F. He denied the suggestion that since the accused has filed police complaints against him, he have filed the present case against the accused to harass him. He denied the suggestion that he have misused the cheque in question.
6. The complainant also examined Mr Raj as CW 2. CW2 Raj Kumar was examined in chief and cross examined on 01.10.2022. In his examination in chief he stated that Mahinder Pal Sind and Kailash Kumar Kaushik are his common friends. That whatever monetary transaction happened between both of them was carried out at his instance. That Kailash Kumar approached him and told him that he is need of some amount i.e. Rs.2 lakhs and he i.e. Mr Raj requested Sh. Mahender Pal Singh and the complainant gave the amount of Rs.2 lakhs to Kailash Kumar Kaushik. That it was in and around 19.09.2014.
7. In his cross examination CW 2 stated that he know the complainant since 2004. He affirmed that the accused had purchased a flat from the complainant. The counsel of the accused then confronted a document to the witness which was marked as Ex.CW2/D1. CW 2 stated that the signature at point A in Ex.CW2/D1 belongs to him. He affirmed that the accused had taken a loan of Rs.7, 60,000/- in cash from the complainant Ct. Cases 13730/2019 Mahender Pal Singh Vs. Kailash Kumar Kaushik Page 5 of 20 and had given a cheque as per agreement. That he cannot say whether the cheque number mentioned in Ex.CW2/D1 was a correct cheque. The counsel of the accused then confronted Ex.CW1/A i.e. cheque in question to the witness. CW 2 stated that he do not know whether Ex.CW1/A is the cheque. He voluntarily stated that no cheque was handed over in his presence by the accused to the complainant He voluntarily also stated that he is also not aware the cheque number and that no cheque was ever filled in his presence when Ex.CW2/D1 was signed. He voluntarily also stated that no cheque number was filled in clause-5 of Ex.CW2/D1. That no written document was entered between the accused and the complainant at the time of the advancement of Rs.2 lakhs. He denied the suggestion that the accused had never called or approached him for the alleged loan. He voluntarily stated that the accused was my very good friend and he did not call me after taking the amount. That he cannot specifically recall the designation and department in which the accused is working. He voluntarily stated that the accused is a government servant and was either in Income tax department or Sehkaari Bank. That the accused was residing in the Government accommodation in the year 2011 in Pitam Pura. That he is not relative of the complainant. He denied the suggestion that accused has not taken the alleged loan of Rs.2 lakhs from the complainant. He also denied the suggestion that the cheque in question was handed over to the complainant in his presence at the time of signing of Ex.CW2/D1. He stated that the accused has made the complete Ct. Cases 13730/2019 Mahender Pal Singh Vs. Kailash Kumar Kaushik Page 6 of 20 payment of the flat. He voluntarily stated that the entire payment was made till 2013.
8. The complainant closed his evidence on 01.10.2022.
9. The statement of the accused under Section 313 CR PC was recorded on 05.11.2022. He stated that he have bought a flat from the complainant and since it was under construction the cheque in question was given to the complainant as a security. That thereafter, he have already made the complete payment with respect to the flat. That after making the payment he requested the complainant to return the cheque and despite his repeated requests he did not return the cheque. That, therefore, he wrote a letter to complainant informing him that since he have already made the entire payment, the cheque in question should be returned. That the present case is a false case and cheque has been misused.
10. The accused opted to lead his defence evidence and examined himself as DW 1.
11. DW1 i.e. accused was examined on 24.12.2022 & cross examined on 07.01.2023.
12. In his examination dated 24.12.2022 DW 1 stated that he is a Central Government employee since 2006 and presently working in Ministry of Cooperation. That he came to know the complainant since there was a transaction pertaining to a flat which happened through one Raj Kumar. That he have bought a flat from the complainant and since it was under construction the cheque in question was given to the complainant as a security. That, thereafter, he have already made the complete Ct. Cases 13730/2019 Mahender Pal Singh Vs. Kailash Kumar Kaushik Page 7 of 20 payment with respect to the flat. That after making the payment he requested the complainant to return the cheque and despite his repeated requests he did not return the cheque. That, therefore, he wrote a letter to complainant informing him that since he have already made the entire payment, the cheque in question should be returned. That the document is already on record which is Ex.CW1/D1. That the present case is a false case and cheque has been misused.
13. In his cross examination dated 07.01.2023 he stated that he had dispatched the letter issued by him to accused through speed post. He affirmed that in that letter he had stated that he had made the payment of Rs.4,80,000/-. He voluntarily stated that it was against the payment of flat which was purchased by him. That he have not filed any court case/complaint against the complainant in furtherance of the complaint filed by him with the SHO/DCP. He denied the suggestion that he have not filed any complaint case against the complainant since Ex.CW1/D3 to Ex.CW1/D4 are forged and fabricated and merit less. That he had approached the DCP also regarding his complaint and he gave instructions to his officers regarding his complaint. That as on date no action has been taken on his police complaint. He denied the suggestion that no action has been taken on his police complaint till date because no case has been made against the complainant. He denied the suggestion that that Ex.CW1/D1 is never issued by the complainant. He admitted his signatures reflecting at point B on Ex.CW2/D1. That there is no signature of both the parties i.e. him and the Ct. Cases 13730/2019 Mahender Pal Singh Vs. Kailash Kumar Kaushik Page 8 of 20 complainant at point 'C' of Ex.CW2/D1. That the complete payment was made by 10.09.2014. That there is no other transaction between him and the complainant except relating to the purchase of property. He denied the suggestion that apart from the transaction of purchase of property he was also having cash transactions with the complainant. He denied the suggestion that he have taken an additional amount of Rs.7.50 lakhs in cash from the complainant. He denied the suggestion that Ex.CW2/D1 is forged and fabricated and he have added the cheque number in this document. He denied the suggestion that whatever documents which have been exhibited by him during cross-examination of the complainant as well his defence evidence are filed for the sole purpose to escape from the liability on him towards the complainant. He denied the suggestion that he have taken a loan of Rs.2 lakhs on 19.09.2014 in presence of Raj Kumar. He also denied the suggestion that when loan was taken on 19.09.2014 the cheque in question was also issued. He also denied the suggestion that he deliberately kept his bank account funds as insufficient. The accused, thereafter, closed his defence evidence.
14. Evidences and documents on record perused carefully.
Arguments heard.
Law Point
15. Before analyzing the material on record, it is imperative to set forth the legal benchmark which governs the adjudication of cases under Section 138 NI Act. A bare reading of Section 138 Ct. Cases 13730/2019 Mahender Pal Singh Vs. Kailash Kumar Kaushik Page 9 of 20 NI Act reveals that in addition to the cheque being issued for the discharge, in whole or in part, of any debt or other liability; following are the ingredients which constitute an offence:-
a. that a person drew a cheque on an account maintained by him with the banker;
b. that such a cheque when presented to the bank is returned by the bank unpaid;
c. that such a cheque was presented to the bank within a period of six months from the date it was drawn or within the period of its validity whichever is earlier; d. that the payee demanded in writing from the drawer of the cheque the payment of the amount of money due under the cheque to payee; and e. such a notice of payment is made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding the return of the cheque as unpaid.
(Para 26, N. Harihara Krishnan vs J. Thomas, (2018) 13 SCC 663, referred to in Himanshu vs B. Shivamurthy (2019) 3 SCC 797)
16. Section 138 is to be read with the presumption, being a rebuttable presumption, as contained in Section 139. Section 139 provides that:
"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."
17. Thus, in cheque bouncing cases, the judicial scrutiny revolves around the satisfaction of ingredients enumerated under Section 138 NI Act and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 NI Act. Section 139 is an example of reverse onus clause Ct. Cases 13730/2019 Mahender Pal Singh Vs. Kailash Kumar Kaushik Page 10 of 20 which usually imposes an evidentiary burden and not a persuasive burden. In other words, Evidence of a character, not to prove a fact affirmatively, but to lead evidence to show non- existence of a liability. Further the law is well settled that when an accused has to rebut the presumption under Section 139, the standard of proof of doing so is that of "preponderance of probability" (Rangappa vs Sri Mohan (2010) 11 SCC 441). Once execution of cheque is admitted, it is a legal presumption under Section 139 of Negotiable Instrument Act, the cheque was issued for discharging legally enforceable debt.
18. Attention is also invited to Section 118(a) wherein a presumption of the cheque having been issued in discharge of a legally sustainable liability and drawn for good consideration, arises. Section 118 of the N.I Act provides:-
"Presumptions as to negotiable instruments: 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;"
19. Hence, it can be seen that from its very inception a presumption that the cheque was issued in discharge of a debt or other liability subsists in favour of the Complainant and onus rests upon the accused to rebut the existing presumption on the touchstone of preponderance of probability.
20. Further, the accused in a trial under Section 138 has two options. He can either show that consideration and debt did not Ct. Cases 13730/2019 Mahender Pal Singh Vs. Kailash Kumar Kaushik Page 11 of 20 exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed (Para 20, Kumar Exports vs Sharma Carpets (2009) 2 SCC 513). The accused can also show that he has already returned the amount taken by him.
Analysis & Conclusion
21. Now, the law is also well settled that "once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favor of the complainant." (Rangappa v. Mohan, AIR 2010 SC 1898). Reference can also be made to K. Bhaskaran vs. Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, wherein 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."
22. In this matter, the accused has admitted his signature.
Therefore the presumption under Section 139 NI Act does get raised in favor of the complainant and against the accused. Thus, the accused now has to rebut the presumption on the Ct. Cases 13730/2019 Mahender Pal Singh Vs. Kailash Kumar Kaushik Page 12 of 20 touchstone of preponderance of probabilities.
23. One of the foremost defence which has been raised by the accused during final arguments is that the present matter is barred by limitation. The counsel of the accused submits that as per the case of the complainant reflecting through his complaint he allegedly advanced the loan in question on 19.09.2014. Even if the same is assumed to be taken as correct for the time being, the cheque in question is of dated 06.01.2019. The counsel of the accused then submitted that the period of limitation expired on 19.09.2017 and the present case is a case of a time barred debt.
24. Since the accused has raised the issue of time barred debt, the judicial scrutiny is the present matter is centered around to affirm whether the present transaction is a time barred debt, for if the same is answered in an affirmative then discussion on other essentials of Section 138 NI Act becomes redundant and the accused would be entitled to the benefit of acquittal.
25. Before analyzing the same in the context of facts of the present case it is imperative to lay down the settled law pertaining to time barred debt vis-à-vis Section 138 NI Act.
26. The Supreme Court in Sasseriyil Joseph vs Devassia 2001 CriLJ 24 observed thus:
6. The only question that arises for consideration in this appeal is whether the respondent who issued the cheque in question in discharge of a time barred debt is liable under Section 138 of the Negotiable Instruments Act. In this case, the complainant had admitted that the loan was advanced to the accused in January, 1988 and the cheque was issued in February, 1991. Thus, by the time the cheque was issued, the debt was barred by limitation since Ct. Cases 13730/2019 Mahender Pal Singh Vs. Kailash Kumar Kaushik Page 13 of 20 there was no valid acknowledgement of the liability within the period of limitation. According to the learned counsel for the appellant, the promise made by the accused to repay the time barred debt would come within the purview of Section 25(3) of the Indian Contract Act. No doubt, the promise to pay a time barred cheque (debt) is valid and enforceable, if it is made in writing and signed by the person to be charged therewith. But, it is clear from Section 138 of the Negotiable Instruments Act that in order to attract the penal provisions in the bouncing of a cheque in Chapter XVII, it is essential that the dishonoured cheque should have been issued in discharge, wholly or in part, or any debt or other liability of the drawer to the payee. The explanation to Section 138 defines the expression debt or other liability as a legally enforceable debt or other liability.
7. Thus, Section 138 is attracted only if the cheque is issued for the discharge of a legally enforceable debt or other liability. In this case, admittedly, the cheque in question was issued in discharge of a time barred debt. It cannot be said that a time barred debt is a legally enforceable debt. In this connection, it is also relevant to note the decision of the Andhra Pradesh High Court reported in Girdhari Lal Rathi v. P.T.V.
Ramanujachari 1997 (2) Crimes 658. It has been held in that case that if a cheque is issued for a time barred debt and it is dishonoured, the accused cannot be convicted under Section 138 of the Negotiable Instruments Act simply on the ground that the debt was not legally recoverable.
27. In M/s. Vijay Polymers Pvt. Ltd. & Anr. v. Vinnay Aggarwal, Crl.M.C.1682/2008 & Crl.M.A.Nos. 6167/2008 & 12878/2008, DoD 24.04.2009, while relying upon the judgment of the Supreme Court in Sasseriyil Joseph (supra), it has been observed that, cheques issued for a time-barred debt would not fall within the definition of 'legally enforceable debt', which is the essential requirement for a complaint under Section 138 of the NI Act; the extended meaning of Ct. Cases 13730/2019 Mahender Pal Singh Vs. Kailash Kumar Kaushik Page 14 of 20 debt or liability has been explained in the Explanation to the Section which means a legally enforceable debt or liability.
28. It is also profitable to refer of Section 18 of the Limitation Act, 1963 which deals with acknowledgement and explanation of limitation and reads as under:-
"Section 18 - Effect of acknowledgment in writing( limitation act) (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received.
Explanation.--For the purposes of this section,--
(a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set- off, or is addressed to a person other than a person entitled to the property or right;
(b) the word "signed" means signed either personally or by an agent duly authorised in this behalf; and
(c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.
29. Useful reference may also be made to the case titled Prajan Kumar Jain v. Ravi Malhotra, 2009 SCC Online Del 3368, wherein it has been held that, an acknowledgment to be encompassed within the ambit of Section 18 of the Limitation Ct. Cases 13730/2019 Mahender Pal Singh Vs. Kailash Kumar Kaushik Page 15 of 20 Act has to be an acknowledgment in writing as also within the prescribed period of limitation. These are the twin requirements which have to be fulfilled in order to be a valid acknowledgment under Section 18 of the Limitation Act. Relevant portion of the aforesaid judgment is reproduced hereunder:
"10....This acknowledgment even as per the complaint was much after the statutory period of three years which is the prescribed period of limitation for the recovery of an outstanding amount. An acknowledgment to be encompassed within the ambit of Section 18 of the Limitation Act has to be an acknowledgment in writing as also within the prescribed period of limitation. These are the twin requirements which have to be fulfilled in order to be a valid acknowledgment under Section 18 of the Limitation Act which is admittedly not so in the instant case. In this case this acknowledgment to pay the balance amount was in terms of the settlement dated 26.1.2005 i.e. much after the statutory period of three years; it also does not speak of the acknowledgement being in writing. It was thus not a valid acknowledgment."
30. Perusal of the aforesaid legal position shows that for computing the limitation of the liability beyond a period of three years, the acknowledgment, if any, must be there before period of limitation is over. Thus, the twin test i.e. the acknowledgment has to be in writing and such acknowledgment is to be before the period of limitation is over, has to be satisfied in order to take benefit of Section 18 Limitation Act. In the present matter, it is not the case of the complainant that the accused has given any written acknowledgment in writing.
31. The facts which has been alleged by the complainant is that he Ct. Cases 13730/2019 Mahender Pal Singh Vs. Kailash Kumar Kaushik Page 16 of 20 advanced an amount of Rs 2, 00,000/- to the accused on 19.09.2014. It is his case that the cheque in question dated 06.01.2019 was issued by the accused in furtherance of the same. Therefore, the following facts are indisputable:
I. The loan was advanced on 19.09.2014 as per the com-
plainant, II. The cheque in question was dated 06.01.2019.
32. Thus, the legally enforceable debt allegedly arose on 19.09.2014 when the loan was advanced. The period of limitation in the facts of the present case started to run on the date of transaction 19.09.2014 and the period of limitation was slated to expire on 19.09.2017. Thus, the debt became time barred on 20.09.2017. Nothing has come on record from the case of the complainant as to when the cheque in question was handed over by the accused to him. Further, it is not the case of the complainant that the accused person gave any written acknowledgment to him regarding the alleged debt. Therefore, in absence of any written acknowledgment no benefit of Section 18 Limitation Act could be given to the complainant.
33. In view of the above, the debt itself became barred by limitation after year 2017. Hence, the present complaint is not maintainable.
34. Apart from the above, there are certain other aspects which entitles the accused the benefit of acquittal.
35. The onus to discharge the presumption raised in favor of the complainant under Section 139 NI Act rests on the accused. In the present matter, the accused through the cross examination Ct. Cases 13730/2019 Mahender Pal Singh Vs. Kailash Kumar Kaushik Page 17 of 20 of the complainant as well as his evidence has been able to rebut the presumption on the touchstone of preponderance of probability. The accused in his defence has stated the following:
I. That he had brought a flat from the complainant II. That since the flat was under construction the cheque in question was given as a security.
III. That he had made the payment with respect to the flat.
36. Through the cross examination of the complainant, his witness as well as his defence evidence, it has come on record that there was a transaction with respect to a flat between the complainant and the accused. The accused has brought on record Ex CW2/D1 which a loan agreement. This loan agreement has also been affirmed by CW2 as he in his cross examination categorically affirmed that the accused had taken a loan of Rs 7, 60,000/- in cash from the complainant and had given a cheque as per agreement. CW 2 also admitted that the signatures at point A of Ex CW2/D1 belonged to him and he was the witness to the said agreement. This agreement i.e. Ex CW2/D1 is with respect to a flat between the complainant and the accused. Thus, the accused has established that an agreement was entered between him and the complainant regarding a flat. The same has also been confirmed by CW 2 in his cross examination wherein he affirmed the suggestion that the accused had purchased a flat from the complainant.
37. The accused has further stated that he had already made the payment with respect to the said agreement and the cheque in Ct. Cases 13730/2019 Mahender Pal Singh Vs. Kailash Kumar Kaushik Page 18 of 20 question was issued a security. The complainant in his cross examination has admitted that the accused has made the entire payment of the flat by 10.09.2014. CW 2 also in his cross examination affirmed that the accused has made the complete payment of the flat. Thus, the accused also established that in furtherance of the agreement regarding the flat he made the complete payment. Now, from the submissions and material brought on record it cannot be ruled out that the cheque in question be issued as a security with respect to the agreement regarding the flat.
38. Furthermore, during the cross examination of the complainant the accused confronted Ex CW1/D1. This is a letter dated 29.10.2014 issued by the complainant to the accused which reflect that the accused has requested the complainant to return the cheque in question i.e. cheque bearing no 861894 which has been given by him to the complainant in November 2013.
The accused also brought on record the original postal receipt Ex CW1/D2 proving that the same was duly dispatched to the complainant at his address i.e. B-57, 1ST Floor, Patel Garden, New Delhi 110078 which is the address of the complainant as per the record. The complainant although denied to receive any such notice, however, no material has been brought on record by him to even suggest that no such notice was received by him. Thus, in view of Ex CW1/D1 also it has come on record that the cheque in question was given to the complainant in November 2013 with respect to the agreement regarding the flat.
Ct. Cases 13730/2019 Mahender Pal Singh Vs. Kailash Kumar Kaushik Page 19 of 2039. The accused has been able to rebut the presumption existing in favor of the complainant on the touchstone of probability and the onus thus shifts on the complainant to establish that the cheque in question and the loan of Rs 2, 00,000/- advanced by him is a separate transaction and has no connection or bearing with the agreement of Flat between them specifically viewed in the light of the fact that the loan was advanced in cash. The complainant, however, brought nothing on record thereafter to discharge the onus which was shifted on him.
40. Thus, since the initial question i.e. whether the present transaction is a time barred debt is answered in affirmative, the discussion on the other aspects of the offence under Section 138 NI Act becomes redundant. Further, the accused was also able to rebut the presumption under Section 139 NI Act through the cross examination of the complainant and his witnesses as well as through his defence evidence.
41. Accordingly, the accused Kailash Kumar Kaushik S/o Sh.
Mohan Lal Kaushik is acquitted of the offence under section 138 of the Act.
This Judgment contains 20 pages.
Every Page of this Judgment has been signed by me. Announced in the open court Digitally signed HARSHAL by HARSHAL NEGI on this day of 25th February, 2023 NEGI Date: 2023.02.27 15:02:15 +0530 (HARSHAL NEGI) MM(NI Act)-05/South-West District Dwarka Courts/New Delhi Ct. Cases 13730/2019 Mahender Pal Singh Vs. Kailash Kumar Kaushik Page 20 of 20