Delhi District Court
Lal Chand Chaprana vs Faheem Ahmad on 2 September, 2024
CC NI ACT 6041/2022 LAL CHAND CHAPRANA VS. FAHEEM AHMAD
IN THE COURT OF MS. NEHA SHARMA,
JUDICIAL MAGISTRATE FIRST CLASS (NI ACT) DIGITAL COURT-02,
SOUTH-EAST DISTRICT, SAKET COURT COMPLEX, NEW DELHI
CRIMINAL COMPLAINT NO: 6041/2022
LAL CHAND CHAPRANA ............COMPLAINANT
VERSUS
FAHEEM AHMAD ............ACCUSED
1. Name & address of the complainant: Lal Chand Chaprana,
S/o Late Chaudhary Ramu,
R/o H.no. 150A, Sarai Julena,
New Friends Colony, New Delhi
2. Name & address of the accused : Faheem Ahmad,
Proprietor of M/s Mahal Art
At- H.no. F-11/21, Jogabai
Extension, Jamia Nagar, Okhla,
New Delhi
R/o H.no. B-2, Jogabai Extension,
Jamia Nagar, Okhla, New Delhi-
110025
3. Offence complained of : U/S 138, The Negotiable
Instruments Act,1881.
4. Plea of accused : Pleaded not guilty.
5. Date of Institution of case : 23.07.2022
6. Date of Final Arguments : 27.08.2024
Digitally signed
NEHA by NEHA
SHARMA
SHARMA Date: 2024.09.02
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7. Date of decision of the case : 02.09.2024
8. Decision : ACQUITTAL
JUDGMENT
1. Vide this judgment, this court shall dispose of the aforementioned complaint case filed by the complainant, Lal Chand Chaprana (hereinafter referred to as the 'complainant') against accused Faheem Ahmad (hereinafter referred to as the 'accused') under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act').
CASE OF THE COMPLAINANT
2. The complainant's case is that the parties are known to each other since many years through one Mahender Singh Yadav and they had amicable relations. The accused approached the complainant in the month of September, 2021 for the requirement of certain funds for one of his project sites to the tune of Rupees One Crore and requested the complainant to arrange the said funds as the accused was in huge debt due to the said project site. It is stated that small friendly loans had been taken by the accused person on earlier occasions but the same were duly paid by the accused on each and every occasion. Thus, believing the representations of the accused and since the parties were known to each other since many years, the complainant agreed to advance loan to the accused person for a sum of Rs. 25,00,000/-.
3. It is stated that the complainant had entered into a settlement in a case but the accused requested for further sums to the tune of seventy lacs more at least to bail him out from the financial constraints. The accused assured and promised to pay back the loan amount within a span of six to nine months. In discharge of his liability towards the complainant, the accused had issued post-dated cheque bearing no.
Digitally signed
NEHA by NEHA
SHARMA
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061492, dated 07.06.2022 of Rs. 25,00,000/-, drawn on Jamia Co-operative Bank Ltd. Branch at Jasola Village, New Delhi (hereinafter referred to as the 'cheque in question') in favor of the complainant but when the said cheque was presented by the complainant, the same was dishonoured for the reason "account closed" vide return memo dated 08.06.2022.
4. Thereafter, the complainant sent a legal demand notice dated 27.06.2022 U/S 138 of the NI Act asking the accused to make the payment of the cheque amount, which was duly served upon the accused, however, accused failed to make the payment despite delivery of the legal demand notice. Hence, being aggrieved, the complainant has filed the present complaint and prayed that the accused be summoned, tried and punished under Section 138 of the NI Act. SUMMONING OF ACCUSED
5. After hearing the arguments at the stage of pre-summoning, the accused was summoned vide order dated 19.11.2022, the accused entered appearance in the present case on 21.04.2023 and on the same day, he was admitted to bail. NOTICE
6. The court framed notice of accusation under Section 251 of the Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.') against the accused on 15.07.2023. The substance of accusation was read over and explained to the accused and after being satisfied that the accused comprehended the same, the court recorded his plea. The accused pleaded not guilty and claimed trial. The accused admitted his signatures on the cheque in question. He denied filling particulars in the cheque in question. Upon being questioned regarding the address mentioned on the legal demand notice and receiving the said legal demand notice at the same address, the accused stated that he was residing at the said address given in the legal notice ten years ago but he left the address around 10 years ago and stated that he did not receive the legal demand notice on the said address. Digitally signed by NEHA SHARMA NEHA Date:
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7. In his plea of defence, the accused stated that he had taken a loan from one person namely Mahinder Yadav for an amount of Rs. 2-3 lakhs. He had returned the loan amount to him. He stated that he had issued the cheque in question as security cheque to Mahinder Yadav. He further stated he does not know the complainant and he had never issued any cheque to the complainant. On the same date, the statement of admission and denial was also recorded U/S 294 Cr.P.C. wherein the accused admitted the correctness and genuineness of return memo pursuant to which Bank Witness at Sr. No. 3 of list of witness was dropped. The matter was, thereafter, listed for the evidence of the complainant. EVIDENCE OF THE COMPLAINANT
8. To prove his case prima facie, the complainant has filed his affidavit of evidence under Section 200 of the Cr.P.C. by way of an affidavit i.e. Ex. CW-1 wherein he has reiterated the averments made in the complaint. He placed reliance upon the following documents:
(i) Ex. CW1/1 i.e. copy of Aadhaar Card.
(ii) Ex. CW1/2 i.e. original cheque bearing no. 061492 dated 07.06.2022 for an amount of Rs. 25,00,000/-
(iii) Ex. CW1/3 i.e. original returning memo dated 09.06.2022
(iv) Ex. CW1/4(colly.) i.e. legal demand notice dated 27.06.2022 alongwith original postal receipts and delivery proof
9. CW-1 was cross examined by Ld. counsel for accused. Vide separate statement of the complainant recorded on 20.02.2024, CE was closed. EXAMINATION OF THE ACCUSED UNDER SECTION 313 CR.P.C.
10. The accused was examined under Section 313 Cr.P.C. on 19.03.2024 wherein the accused denied knowing the complainant for last many years or having amicable relations with the complainant. He denied approaching the complainant in September, 2021 for requirement of funds for one of his project sites to the tune of Digitally signed NEHA by NEHA SHARMA SHARMA Date: 2024.09.02 17:26:36 +0545 Page no. 4 of 18 (Neha Sharma) JMFC NI Act (DC-02) (SED)Saket/New Delhi CC NI ACT 6041/2022 LAL CHAND CHAPRANA VS. FAHEEM AHMAD Rupees One Crore. He further denied taking small friendly loans from the complainant on earlier occasions or taking any financial assistance to the tune of Rs. 25,00,000/- from the complainant. The accused denied issuing the cheque in question for Rs. 25,00,000/- to the complainant and he stated that he had he had taken loan in various installments from one person namely Mahinder Yadav and the cheque in question was given to Mahinder Yadav in 2014. He stated that he had returned the loan amount to Mahinder Yadav by 2016 in cash and account transfer but the cheque was not returned on one pretext or other by Mahinder Yadav.
11. The accused admitted the return memo dated 08.06.2022 and his signatures on the cheque in question and but denied filling any particulars in the cheque in question, including date and name of the payee and he further denied receiving the legal demand notice dated 27.06.2022. Thereafter, the accused denied knowing the complainant. Since, the accused expressed his willingness to lead DE, the matter was listed for defence evidence.
DEFENCE EVIDENCE
12. Pursuant thereto, the accused examined himself as DW-1. He stated in his examination in chief that he does not know the complainant and he has not taken any money from the complainant. He stated that there was no agreement between him and the complainant and he has no call transactions or any type of business dealings with the complainant. He further stated that he had given the cheque in question to one Mahender Singh Yadav to whom he had paid all his debt and after clearing all his liabilities, he asked to return the cheque in question but, the said Mahender Singh Yadav told him that the said cheque in question has been misplaced by him and he will return it to him whenever he finds it.
13. The accused further stated that he has only given signed security cheque to Mahender Singh Yadav and he has filled only amount in figures and words on the cheque in question but other particulars have not been filled by him. The accused also Digitally signed NEHA by NEHA SHARMA SHARMA Date: 2024.09.02 17:26:40 +0545 Page no. 5 of 18 (Neha Sharma) JMFC NI Act (DC-02) (SED)Saket/New Delhi CC NI ACT 6041/2022 LAL CHAND CHAPRANA VS. FAHEEM AHMAD stated that he has not received any legal demand notice from the complainant and if he would have ever received any legal demand notice from the complainant, he must have given reply to the same. The complainant has not mentioned any date or time of the said transaction in his complaint and there is no witness/evidence to the same. He stated that the present case is filed with malicious intention by the complainant in connivance with Mr. Mahender Singh Yadav. The accused was cross examined by Ld. Counsel for complainant. Thereafter, vide separate statement of accused recorded on 13.08.2024, defence evidence was closed and the matter was listed for final arguments.
FINAL ARGUMENTS
14. Both parties addressed their final arguments. Ld. counsel for the complainant, argued that the accused has admitted his signatures on the cheque in question. He further argued that there was typographical error in the legal demand notice, however, the said notice was delivered on the correct address of the accused. He prayed that accused has failed to rebut the presumption U/S 139 NI Act and the accused be convicted for the offence under section 138 NI Act. He placed reliance upon judgment in Santosh Arora vs. Jai Narain Aggarwal Crl. M.C. 2875/2009.
15. Per contra, Ld. counsel for the accused, argued that the accused owes no legal liability for payment of cheque amount to the complainant as cheque has been misused by the complainant. He argued that accused had taken loan from Mahinder Yadav and the complainant had no financial capacity to advance a loan of such a huge amount. He further argued that there is no document/acknowledgement in proof of advancement of such a huge loan amount and there are material contradictions in the testimony of complainant himself. He further argued that legal demand notice of the complainant was sent against dishonour of some other cheque and not the cheque in question. He further submitted that the accused has rebutted the presumption raised U/S 139 NI Act but complainant failed to prove the guilt of the accused beyond Digitally signed NEHA by NEHA SHARMA SHARMA Date: 2024.09.02 17:26:44 +0545 Page no. 6 of 18 (Neha Sharma) JMFC NI Act (DC-02) (SED)Saket/New Delhi CC NI ACT 6041/2022 LAL CHAND CHAPRANA VS. FAHEEM AHMAD reasonable doubt, hence, accused is entitled to be acquitted. He placed reliance upon judgment in Sri Dattatraya vs Sharanppa Criminal Appeal No. 3257 of 2024 (SLP (Criminal) No. 13179 of 2023).
16. The file has been carefully and minutely perused and my issue-wise findings with reasons thereof are as under:-
FINDINGS
17. Before appreciating the facts of the case and evidences led by the both the sides for the purpose of decision, let us first discuss the relevant position of law which is embodied in section 138 of NI Act. To bring home a liability under section 138 of the NI Act, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, viz,
a) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability;
b) cheque has been presented 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;
c) That cheque has been returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
d) The payee or the holder in due course of the cheque has made a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
e) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. Digitally signed by NEHA NEHA SHARMA SHARMA Date:
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18. Being cumulative, 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 under Section 138 of the Act. Having said that, it becomes imperative to mention section 139 of NI Act which carves out a presumption in favour of the drawee that the cheque was issued to him in discharge of a debt or other liability of a legally enforceable nature. Also, the said provision must be read along with the section 118 of the same enactment which spells out another presumption in favour of the drawee that every negotiable instrument was drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.
19. Having said that, what follows from the above is that the web of proof in a trial under section 138 NI Act is structured on the premise of the reverse onus of proof theory since the offence is a document based technical one. The journey of evidence in a trial under section 138 NI Act thus, begins not from the home of the prosecution story but from the point of the defence. The presumptions carved out in favour of the complainant are those of law and not those of fact. The court is obligated to draw presumptions and only when the contrary is proved by the defence, the same will be said to be rebutted. Whereas the standard of proof remains the same in such a trial, the reverse onus of proof on the defence is guided by the principle of preponderance of probabilities only.
20. As rebuttal evidence, the accused merely has to prove that the cheque was not given for any consideration or that there was no legal liability in existence against him for which the negotiable instrument was given. In this regard, reliance can be placed on Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 SCC 16 wherein it was held as under:
"22. Because both Sections 138 and 139 require that the Digitally signed NEHA by NEHA SHARMA SHARMA Date: 2024.09.02 17:26:53 +0545 Page no. 8 of 18 (Neha Sharma) JMFC NI Act (DC-02) (SED)Saket/New Delhi CC NI ACT 6041/2022 LAL CHAND CHAPRANA VS. FAHEEM AHMAD Court `shall presume' the liability of the drawer of the cheque for the amounts for which the cheque are drawn, ..., it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption has been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused (...). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court may presume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable probability of the nonexistence of the presumed fact.
23. In other words, provided the facts required to form the basis of a presumption of law exists, the discretion is left with the Court to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man."
21. In the backdrop of the factual narrative of the case, following points of determination arise in the present case: Digitally signed by NEHA NEHA SHARMA SHARMA Date:
2024.09.02 17:26:58 +0545 Page no. 9 of 18 (Neha Sharma) JMFC NI Act (DC-02) (SED)Saket/New Delhi CC NI ACT 6041/2022 LAL CHAND CHAPRANA VS. FAHEEM AHMAD A. Whether the complainant has been successful in raising the presumption under section 118 read with section 139 of the N.I Act, 1881? B. If yes, whether the accused has been successful in raising a probable defence to rebut the presumptions?
22. Since criminal liability can be attached by proving each element of the section under which liability is sought to be enforced, I shall now go on to appreciate the evidence- documentary and oral, in light of how compellingly it satisfies each of such ingredient, if at all. The first condition pertains to the issuance of the cheque in question to make the payment from an account maintained by the drawer of the cheque towards a legally enforceable debt or other liability. The complainant has proved the original cheque dated 07.06.2022 and original return memo dated 09.06.2022 i.e. Ex. CW1/2 and Ex. CW1/3 respectively which the accused has not disputed as being drawn on the account of the accused. At the time of framing of Notice U/S 251 Cr.P.C., the accused admitted his signatures on the cheque in question, however, he denied issuing the cheque in question to the complainant.
23. As per the scheme of the NI Act, once the accused admits signature on the cheque in question, certain presumptions are drawn, which result in shifting of onus. Section 118(a) of the NI Act lays down the presumption that every negotiable instrument was made or drawn for consideration. Another presumption is enumerated in Section 139 of NI Act which lays down that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability. The combined effect of these two provisions is a presumption that the cheque was drawn for consideration and given by the accused for the discharge of debt or other liability. Both the sections use the expression "shall", which makes it imperative for the court to raise the presumptions once the foundational facts required for the same are proved. Reliance is placed upon the judgment of the Hon'ble Supreme Court in Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16. Digitally signed by NEHA SHARMA NEHA Date:
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24. Further, it has been held by a three-judge bench of the Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption contemplated under Section 139 of NI Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence. The principles pertaining to the presumptions and the onus of proof were summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 wherein it was held;
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner:
25.1. 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. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the 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.
25.4. 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.
25.5. It is not necessary for the accused to come in the witness box to support his defence."
Digitally signed by NEHA NEHA SHARMA SHARMA Date:
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25. Thus, the presumptions raised under Section 118(b) and Section 139 NI Act are rebuttable presumptions. A reverse onus is cast on the accused, who has to establish a probable defence on the standard of preponderance of probabilities to prove that either there was no legally enforceable debt or other liability. The plea of defence of the accused is that he does not know the complainant and he did not issue any cheque to the complainant. He stated that he had taken a loan of Rupees 2-3 lakhs from one person namely Mahinder Yadav and he had issued the cheque in question to Mr. Mahinder Yadav as a security cheque.
26. In paragraph no. 3 of the complaint, it is stated that complainant knows the accused for last many years through one Mahender Singh Yadav. In the cross examination of the complainant who examined himself as CW-1, the complainant admitted that accused had given him a blank signed cheque and he voluntarily stated that date in the cheque in question was filled by his friend Mahinder Yadav.
Admittedly, Mr. Mahender Yadav is a friend of the complainant, however, the complainant did not examine Mr. Mahender Yadav in support of his case which raises a serious doubt on the case of the complainant. Besides, the factum that the cheque in question does not have the name of the drawer printed on it shows that the cheque in question is an old cheque which further supports the defence of the accused.
27. Next, Ld. Counsel for accused has argued that complainant did not have the financial capacity to advance such a huge loan of Rs. 25,00,000/- to the accused. The perusal of the statements made by the complainant in his affidavit of evidence i.e. Ex. CW-1 and cross-examination of the complainant clearly show that there are contradictions in his statements vis-a-vis source of funds and demand for loan. On one hand, the complainant stated in paragraph no. 1 of the affidavit that he is engaged in business of real estate, on the other hand, he has stated in his cross examination that he is engaged in the business of utensils since 2007-08. Further, in paragraph no. 4 of the affidavit, the complainant stated that accused approached the complainant in Digitally signed NEHA by NEHA SHARMA Page no. 12 of 18 SHARMA Date: 2024.09.02 (Neha Sharma)17:27:10 +0545 JMFC NI Act (DC-02) (SED)Saket/New Delhi CC NI ACT 6041/2022 LAL CHAND CHAPRANA VS. FAHEEM AHMAD September, 2021 for requirement of certain funds for one of his project sites to the tune of Rupees One Crore but, in his cross examination he stated that accused had approached him for a loan of Rs. 25,00,000/- in September, 2021. Thus, the accused has been able to highlight material contradictions in the testimony of the complainant which cast a serious doubt and go to the roots of the case.
28. Further, in order to buttress the proposition that the complainant did not have the financial capacity to advance loan of Rs. 25,00,000/-, the complainant was cross examined where he stated that the earnings from the stop of utensils is approximately Rs. 5,000/- per day out of which Rs. 1,000/- is savings. The complainant further stated that he had received Rs. 45 Lakhs after settlement in one case and out of this amount, the loan was given to the accused. He also mentioned the title of the case to be Lal Chand Chaprana vs. Zafar Ali & Ors., however, he neither filed any order of the court nor examined the record keeper of the court to prove the said fact.
29. In fact, the complainant admitted that there is no written acknowledgement/agreement for payment of Rs. 25,00,000/- by him to the accused. He voluntarily stated that in the past, accused has asked for financial help sometimes of Rs. 50,000/-. Rs. 1,00,000/- which was always returned by the accused. However, allegedly the loan was given for a huge amount of Rs. 25,00,000/- in cash without any agreement or acknowledgement when the complainant has savings of only Rs. 1,000/- per day which causes dubiety to lurk around the case of the complainant. Without any documentary proof in this regard, it is difficult to fathom how a person with savings of Rs. 1,000/- per day can grant a loan of Rs. 25,00,000/- in cash that too without executing any document (whether formal or informal) to this effect.
30. To buttress the aforementioned conclusion of this court, reference may be taken from the decision of Hon'ble Supreme Court in the case of K. Prakashan v. P.K. Surenderan (2008) 1 SCC 258 wherein it was held that if a huge amount of Digitally signed NEHA by NEHA SHARMA SHARMA Date: 2024.09.02 17:27:14 +0545 Page no. 13 of 18 (Neha Sharma) JMFC NI Act (DC-02) (SED)Saket/New Delhi CC NI ACT 6041/2022 LAL CHAND CHAPRANA VS. FAHEEM AHMAD money is advanced as a loan then the person who has purportedly advanced the loan must also show the solvency to the extent of the loan either through the bank account or through other means. In the present case, the complainant has miserably failed to show his solvency to advance a huge loan amount of Rs. 25,00,000/-. The relevant portion of the cross examination of the complainant is reproduced herein;
"I am engaged in the business of utensils since 2007- 08 from my abovesaid address (Vol. I do not sit regularly at the said shop). The said shop is retail one. The earnings from the said shop is approximately Rs. 5,000/- per day out of which approximately Rs. 1,000/- is savings.
...
I have known the accused for last 8 to 10 years. The accused had approached me for loan of Rs. 25 lakhs in September, 2021. (vol. After settlement in one case, I had received Rs. 45 lakhs and out of this amount, the loan was given to the accused). I do not know the exact date. It is correct that the details of that case has not been mentioned by me in my complaint. (vol. I have mentioned about the fact of settlement in paragraph no. 5 of my complaint. The title of the case is Lal Chand Chhaprana Vs. Zafar Ali & Ors which was pending before the court of Sh. Lalit Kumar, Ld. ADJ. It is correct that I have not filed the copy of the above mentioned case but I can-bring the same if required. The accused has demanded financial help from me in the past and he has returned that amount. I have always transacted with the accused in cash. It is correct that there is no written acknowledgement/agreement for payment of Rs. 25 lakhs by me. (vol. I had faith in the accused as in the past also he has asked for financial help sometimes of Rs. 50,000/-, 1,00,000/-which was always returned by him). It is correct that I cannot tell the phone number of the accused ten years ago. (vol. He often used to visit me at my residence and I have land at Joga Bai Village where the accused hails from). Digitally signed by NEHA SHARMA NEHA Date:
SHARMA 2024.09.02 17:27:18 +0545 Page no. 14 of 18 (Neha Sharma) JMFC NI Act (DC-02) (SED)Saket/New Delhi CC NI ACT 6041/2022 LAL CHAND CHAPRANA VS. FAHEEM AHMAD I had approached the accused for repayment of the loan amount after six months from the date of advancing the loan. The accused had personally visited me at my house and handed over the cheque in question to me. Again said, the accused had given the cheque in September, 2021 when loan was given and assured me to present the same after six months. Thereafter, I presented it on 07.06.2022. It is wrong to suggest that the cheque in question was not given to me but it was given to one person namely Sh. Mahinder Yadav and in collusion of Mahinder Yadav, I have filed the present complaint case. It is wrong to suggest that the cheque in question is of series of 2011-12 which has wrongly been presented in 2022 as after 2018 the name of the cheque holder is printed on the cheques. (vol. I do not know). At the time of advancing loan at my residence between 12 PM to 01:00 PM, nobody was present. It is wrong to suggest that Mahinder Yadav has given this cheque to me in the year 2011-12. The accused had given to me a blank signed cheque. (vol. The date was filled by my friend Mahinder Yadav). I do not know if a license is required before giving loan amount of Rs. 25 lakhs or more. I do not know if a license is not taken, registration with Bengal Chit fund is mandatory. I did not approach the accused after dishonour of the cheque in question.
At this stage, witness is shown paragraph no. 11 of his complaint and after being read over the contents of paragraph no. 11, the witness has stated that he approached the accused physically one or two times. It is wrong to suggest that I am deposing falsely at the instance of Mahinder Yadav. It is wrong to suggest that there is no evidence/written acknowledgement/documentary proof that I have given Rs. 25 lakhs as loan to the accused."
31. Thus, the onus was upon the complainant to prove his financial capacity to advance a loan of Rs. 25,00,000/- to the accused and the loan was in fact advanced but, the complainant neither led any oral nor documentary proof in support of his Digitally signed by NEHA NEHA SHARMA SHARMA Date:
2024.09.02 17:27:27 +0545 Page no. 15 of 18 (Neha Sharma) JMFC NI Act (DC-02) (SED)Saket/New Delhi CC NI ACT 6041/2022 LAL CHAND CHAPRANA VS. FAHEEM AHMAD case. The complainant could have examined his friend Mr. Mahender Singh Yadav, in support of his case, but, the complainant failed to do so. In the judgment in Sanjay Verma vs Gopal Halwai Crl. Rev. P. 63/2015, the Hon'ble Delhi High Court has held that defence raised that transaction was with some other person and cheque was handed over to some other person who has then misused the same and filed the subject complaint as a proxy litigation through someone else is a probable defence and rightly rebuts the statutory presumption.
32. Thus, the complainant has clearly not led any cogent evidence to prove that he had advanced a loan of Rs. 25,00,000/- to the accused in cash. There is nothing on record to support the version of the complainant except his own complaint. Even the cross examination of the complainant is replete with many contradictions as complainant has contradicted himself with the source of income of the complainant, demand of financial assistance which makes the allegations of the complainant implausible. It is settled law that the cheque that is dishonoured must represent a legally enforceable debt or liability on the date of presentation, however, in the present case the complainant has failed to prove that the cheque was given for a legally enforceable debt.
33. The onus was upon the complainant to prove the liability of the accused but he has failed to establish the same. Thus, in the present case, through evidence adduced by the accused and through the cross-examination of the complainant, the accused has successfully established that the complainant did not receive the cheque in question from him for some consideration or in discharge of any existing legally enforceable debt or liability on behalf of the accused. Once, the accused has rebutted the presumption U/S 139, it was imperative upon the complainant to prove his case beyond reasonable doubt but it failed to discharge his burden. At this stage, it is pertinent to refer to Section 43 of NI Act, which reads as- Digitally signed by NEHA SHARMA NEHA Date:
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CC NI ACT 6041/2022 LAL CHAND CHAPRANA VS. FAHEEM AHMAD
"43. Negotiable instruments made, etc. without consideration: A negotiable instrument made, drawn accepted, endorsed, or transferred without consideration, or for a consideration which fails, creates no obligation of payment between the parties to the transaction".
34. From the bare reading of Section 43 of NI Act, it becomes clear that if a negotiable instrument is made or drawn without consideration, it creates no obligation of payment between the parties to the transaction. Ld. Counsel for accused has argued that the legal demand notice sent to the accused was not with respect to the cheque in question bearing no. 016492 but in respect of one cheque bearing no. 061492 which cannot be considered to be a valid legal demand notice U/S 138 Ni Act. Ld. Counsel for complainant has denied the argument and he has placed reliance upon judgment in Santosh Arora (supra) wherein it was held;
"6. Notice cannot be viewed in a hyper technical manner. The purpose of giving notice is to bring it to the notice of the drawer of the cheque that the cheque issued by him has been dishonoured and also to put him on guard with regard to making of payment covered by the cheque within the time prescribed so as to avoid prosecution. If all the necessary particulars, viz., date of issue of cheque, amount of cheque, name of the bank on which cheque is drawn etc. then mere non-mentioning of cheque number or giving incorrect cheque number would not be fatal. Depending upon the facts and circumstances of the case, if the details given by the complainant are sufficient enough to bring it to the notice of the drawer of cheque that the cheque issued by him is dishonoured then non-mentioning or wrong mentioning of cheque number would in itself be not fatal to the case of the complaint."
35. Thus, in light of the observations in the abovementioned judgment, the argument of Ld. Counsel for accused is found to be unmeritorious and same stands Digitally signed by NEHA NEHA SHARMA SHARMA Date:
2024.09.02 17:27:36 +0545 Page no. 17 of 18 (Neha Sharma) JMFC NI Act (DC-02) (SED)Saket/New Delhi CC NI ACT 6041/2022 LAL CHAND CHAPRANA VS. FAHEEM AHMAD rejected. However, the facts and circumstances brought on record, rebuts the presumption raised in favour of the complainant that the cheque in question was issued by the accused in discharge of any existing liability. Accordingly, in view of the discussion made above and having considered the entire evidence, I have no hesitation to hold that in the present case, the complainant has failed to establish the very basic ingredient of offence under Section 138 of the Act i.e. issuance of the cheques in question in discharge of any existing legally enforceable debt or liability, thus, accused FAHEEM AHMAD is acquitted of offence U/S 138 NI Act. Let copy of this judgment be uploaded on CIS and Layers.Digitally signed
Announced in the open court on by NEHA
SHARMA
on this 2nd September, 2024 NEHA Date:
SHARMA 2024.09.02
17:27:40
+0545
(NEHA SHARMA)
JUDICIAL MAGISTRATE FIRST CLASS
NI ACT (DIGITAL COURT-02)
SED/SAKET/02.09.2024
Note :-This judgment contains eighteen pages and all the pages have been checked Digitally signed and signed by me. by NEHA NEHA SHARMA SHARMA Date:
2024.09.02 17:27:44 +0545 (NEHA SHARMA) JUDICIAL MAGISTRATE FIRST CLASS NI ACT (DIGITAL COURT-02) SED/SAKET/02.09.2024 Digitally signed by NEHA NEHA SHARMA SHARMA Date:
2024.09.02
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Page no. 18 of 18 (Neha Sharma)
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