Delhi District Court
Aftab vs Ezaj Ahmed on 20 May, 2023
IN THE COURT OF MS. ABHILASHA SINGH,
METROPOLITAN MAGISTRATE - 02, NI ACT, SOUTH,
SAKET COURT, NEW DELHI
DLST020133812020
CC NO. 6215/2020
AFTAB VS EZAJ AHMED
UNIQUE IDENTIFICATION NUMBER- DL-ST-02-013381-2020
U/S 138 NEGOTIABLE INSTRUMENTS ACT
JUDGMENT
(1)Serial number of the case 6215/2020 (2)Name of the Mr. Aftab S/o Mr. Ajmed complainant. Ali Khan R/O- House no. 504-B, Block I-2, Gali no. 8, Sangam Vihar, New Delhi
-110062.
(3)Name of the accused, Mr. Ezaj Ahmed S/o Mr. parentage & address Ansar Ahmed R/o House no. 517, Block I-
2, Gali no. 8, Sangam Vihar,
New Delhi-110062
(4)Offence complained of Section 138 Negotiable
or proved Instruments Act, 1881
(5)Plea of the accused Pleaded not guilty
(6)Final Order Conviction
(7)Date of Institution 06.11.2020
(8)Date of judgment 20.05.2023
CC NO. 6215/2020
AFTAB VS EZAJ AHMED page no.1 of 21
BRIEF STATEMENT OF THE REASONS FOR THE
DECISION
1. The brief facts of this case as carved out from the complaint are that accused had friendly terms with the complainant and the accused approached the complainant for financial help as he was in dire need of money and requested for a friendly loan of Rs.5,85,000/- from the complainant on different dates in the year 2019 and again in the month of January and February, 2020. Accordingly, the complainant advanced a loan of Rs. 5,85,000/- in cash to the accused on the different dates.
2. Further, in the month of August, 2020, the complainant demanded back his loan amount from accused and accused in discharge of his legal liability, issued a cheque bearing no. 141982 dated 20.08.2020 in the sum of Rs.5,85,000/-in favour of Aftab drawn on Bank of India, Sangam Vihar Branch, New Delhi-110062.
3. Further, upon presentation of said cheque by complainant, the same was returned dishonored for the reason "Funds Insufficient" vide return memo dated 09.09.2020. Thereafter, on failure of the accused to pay the cheque amount, the complainant sent a legal notice dated 22.09.2020 which was served upon the accused. Despite that payment of the cheque in question was not made by the accused within the stipulated time of 15 days. Hence, CC NO. 6215/2020 AFTAB VS EZAJ AHMED page no.2 of 21 the present complaint was filed by the complainant.
4. In the pre-summoning evidence on 07.11.2020, evidence by way of affidavit Ex.CW1/1 was filed by the complainant. In his affidavit of evidence Ex.CW1/1, the complainant has reiterated all the averments made in his complaint and has relied upon the following documents: -
S.No. Documents Exhibits
1. Original cheque in question Ex. CW1/A
2. Return memo Ex. CW1/B
3. Legal notice Ex. CW1/C
4. Postal receipt Ex. CW1/D
5. Tracking report Ex. CW1/E
6. Income affidavit along with Ex.CW1/F-
copy of bank statements (colly)
5. After closure of pre-summoning evidence, since sufficient material was found against the accused, summoning order was passed against the accused vide order dated 07.11.2020.
6. Thereafter, notice U/s 251 Cr.P.C. was served upon the accused vide order dated 22.03.2022 to which the accused pleaded not guilty and claimed trial. He stated in his defence that he took a loan of Rs. 40,000/- from the complainant and that he has already repaid part loan amount of Rs.20,000/- to him. He further stated that he is yet to pay an amount of Rs. 20,000/- to the complainant. He further stated that he gave two cheques to the CC NO. 6215/2020 AFTAB VS EZAJ AHMED page no.3 of 21 complainant as security out of which one cheque was already returned by the complainant to him. The second cheque, which is the cheque in question, was in possession of the complainant and though, it was signed by him, he did not fill the other details in the cheque since he does not know how to read and write in English. He further stated that initially he was paying interest @ 10% per month on the loan amount but during lockdown, the complainant started demanding interest @ 15 % per month which was too high for him and so he was unable to pay the interest in the lockdown period as demanded by the complainant. Lastly, he stated that he was always ready and willing to repay the amount that was due upon him back to the complainant but the complainant sent a legal notice to him about this case instead.
7. Thereafter, upon application u/s 145 (2) N I Act was filed by the accused to cross examine complainant and his witnesses, which was allowed vide order dated 22.03.2022, the accused was given an opportunity to cross examine the complainant and his witnesses. The complainant examined himself as CW-1 in his post summoning complainant evidence and he was cross examined by Mr. Hariom Gupta, Ld. counsel for accused. Thereafter, CE was closed vide order dated 01.09.2022, at the request of the complainant.
8. Thereafter, the plea of the accused was recorded u/s CC NO. 6215/2020 AFTAB VS EZAJ AHMED page no.4 of 21 313 r/w 281 Cr.P.C. on 12.09.2022, wherein, all material existing on record including the exhibited documents were put to accused. The accused reiterated his defence as taken by him at the stage of framing of notice u/s 251 Cr.P.C. He further added inter alia that he requested the complainant to reduce the interest rate. However, the rate of interest was not reduced by the complainant and since the rate of interest as demanded by the complainant was too high, he could not repay the remaining amount. He further stated that he had to instruct his bank to stop the payment as he did not have the means and that meanwhile, the complainant misused his cheque and filed this false complaint. Lastly, he stated that he is still willing to repay the remaining Rs. 20,000/- to the complainant if he agrees to waive off the interest. The accused further expressed his desire to lead defence evidence.
9. The matter was then fixed for DE and accused in his defence examined himself as DW-1 and he was cross examined by Mr. Trilok Chand, Ld. counsel for complainant. Thereafter, DE was closed at request of accused on 07.10.2022 and the matter was fixed for final arguments.
10. Final arguments advanced by both parties have been heard. Written submissions filed by both the parties have been considered. Citations have been filed. Case file has been perused meticulously.
CC NO. 6215/2020AFTAB VS EZAJ AHMED page no.5 of 21
11. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 138 of Negotiable Instruments Act, the prosecution must fulfill all the essential ingredients of the offence. Perusal of the bare provision reveals the following necessary ingredients of the offence: -
First Ingredient: The cheque was drawn by a person on an account maintained by him for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity;
Second Ingredient: The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability;
Third Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;
Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonor of cheque from the bank;
Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
The accused can only be held guilty of the offence under Section 138 Negotiable Instruments Act if the above-mentioned ingredients are proved by the complainant co-extensively. Additionally, the conditions stipulated under Section 142 Negotiable Instruments Act CC NO. 6215/2020 AFTAB VS EZAJ AHMED page no.6 of 21 have to be fulfilled.
12. The proof of first, third, fourth and fifth ingredient is not disputed. The complainant has proved the original cheque Ex. CW-1/A dated 20.08.2020. The cheque in question was returned unpaid vide return memo Ex. CW-1/B dated 09.09.2020 due to the reason, "Fund Insufficient". The complainant has filed on record legal notice Ex. CW1/C dated 22.09.2020. The complainant also filed speed post Ex. CW1/D and tracking report Ex. CW1/E. The accused has admitted the receipt of the legal notice thereof, in his notice that was framed u/s 251 Cr.P.C. The fact that the payment was not made within 15 days of the receipt of the legal notice is also not disputed. As such, on the basis of the above, the first, third, fourth and fifth ingredient of the offence under Section 138 NI Act stands proved against the accused.
13. It is the defense of the accused that he does not have any legal liability towards the complainant and that the cheque in question was not issued by him to the complainant in discharge of any legal liability/debt. Before dwelling into the defense of the accused in light of the present factual matrix, it is pertinent to discuss the law around issuance of cheque in question in discharge of a "legally enforceable debt". As far as the proof of second ingredient is concerned, the complainant has to prove that the cheque in question was drawn by the drawer for CC NO. 6215/2020 AFTAB VS EZAJ AHMED page no.7 of 21 discharging a "legally enforceable debt". In the present case, the signature of the accused on the cheque in question is not denied. The accused admitted that he is signatory to the cheque in question in his reply against notice under Section 251 Cr.P.C.
14. Under the Negotiable Instruments Act, once the accused admits the signature on the cheque, certain presumptions are drawn, which result in shifting of onus. Section 118(a) of the Negotiable Instruments Act lays down the presumption that every negotiable instrument was made or drawn for consideration. The second presumption is contained under Section 139 of Negotiable Instruments Act. Act, once the accused admits drawing of the cheque, certain presumptions are drawn, which result in shifting of onus. The provision lays down the presumption that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability.
15. 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 (refer Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16).
CC NO. 6215/2020AFTAB VS EZAJ AHMED page no.8 of 21
16. 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, which has also been relied upon by the accused in his written submissions, that the presumption contemplated under Section 139 of Negotiable Instruments 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 said law has been reiterated by Hon'ble Apex Court in Oriental Bank of Commerce Vs Prabodh Kumar Tewari, 2022 SCC Online SC 1089 as has also been relied upon by the complainant in support of his case. Further, the principles pertaining to the presumptions and the onus of proof were recently summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 as under: -
"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 CC NO. 6215/2020 AFTAB VS EZAJ AHMED page no.9 of 21 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."
The aforementioned principles of law have been reiterated by the Hon'ble Apex Court in Rajaram S/o Sriramulu Naidu (Since deceased) through LRs Vs Maruthachalam (Since deceased) through LRs 2023 LiveLaw (SC) 46, as has also been relied upon by the accused in his defence.
17. 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. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon (refer M.S. Narayana Menon v. State of Kerala (2006) 6 SCC 39 as is also relied upon by the accused in his defence).
18. Further, it has been held by Hon'ble Supreme Court in the case of Lakshmi Dyechem v. State of CC NO. 6215/2020 AFTAB VS EZAJ AHMED page no.10 of 21 Gujarat (2012) 13 SCC 375, has held as under: -
"Therefore, if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If, however, the accused/drawer of a cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant."
19. Admittedly, no written agreement or receipt has been executed between parties qua transaction in question, therefore, court has to evaluate the oral testimonies of both parties. The defence of accused inter-alia is that he does not have legal liability of the cheque amount towards the complainant as he had only borrowed Rs. 40,000/- from the complainant and only arrears of Rs.20,000/- are remaining to be paid by him to the complainant.
20. On the contrary, it is the case of the complainant that he had advanced a sum of Rs. 5.85 lacs in cash to the accused on different dates and that the accused has not any repayment to him till date.
21. It has been argued on behalf of the accused at the stage of final arguments that the complainant has failed to prove his solvency to advance loan amount of Rs.5.85 lacs CC NO. 6215/2020 AFTAB VS EZAJ AHMED page no.11 of 21 as against the admitted loan amount of Rs.40,000. Therefore, the dispute that appears to remain pertains to the solvency of the complainant to advance alleged cash loan of Rs.5,45,000/- as transaction of Rs.40,000 has already been admitted by the accused .
22. Before appreciating the evidence on record, it is pertinent to discuss the law on the point of loan advanced in cash by the complainant and the defense of the accused as to the failure on part of the complainant to prove the financial capacity to advance the said loan.
23. In Vijay vs. Laxman and Anr., (2013) 3 SCC 86, the Hon'ble Supreme Court of India observed as follows:
"10...the absence of any details of the date on which the loan was advanced as also the absence of any documentary or other evidence to show that any such loan transaction had indeed taken place between the parties is a significant circumstance..."
24. Further, in APS Forex Services Pvt. Ltd. vs. Shakti International Fashion Linkers and Ors., (2020) 12 SCC 724, it was laid down by Hon'ble Supreme Court of India as follows:
"19...We are of the view that whenever the accused has questioned the financial capacity of the complainant in support of his probable defence, despite the presumption under Section 139 of the N.I. Act about the presumption of legally enforceable debt and such presumption is rebuttable, thereafter the onus shifts again on the CC NO. 6215/2020 AFTAB VS EZAJ AHMED page no.12 of 21 complainant to prove his financial capacity and at that stage the complainant is required to lead the evidence to prove his financial capacity, more particularly when it is a case of giving loan by cash and thereafter issuance of a cheque..."
25. Reliance is further placed by this court on Tedhi Singh vs. Narayan Dass Mahant 2022 SCC Online SC 302, wherein it was observed by Hon'ble Apex Court that:
"9... The proceedings under Section 138 of the N. I. Act is not a civil suit. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity... However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross examination of the witnesses of the complainant. Ultimately, it becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence..."
26. Therefore, in cases in which the loan was advanced by the complainant in cash to the accused, or partly in cash, as the case may be, and where the accused questions the financial capacity and/or source of funds of the complainant, the same will be considered as a probable CC NO. 6215/2020 AFTAB VS EZAJ AHMED page no.13 of 21 defense. Once the said doubt is raised, even on a touchstone of probabilities, the onus shifts on the complainant to prove his financial capacity to advance the said cash loan beyond reasonable doubt.
27. In the present factual matrix, the complainant has relied upon his bank statements to prove his financial capacity at the relevant time and also to prove the factum of granting of the said loan to the accused by highlighting all the withdrawals made by him from 16.01.2019 to 21.02.2020 from the bank account of his proprietorship firm. Upon perusal of the said bank statement, Ex.CW1/F (colly), it is apparent that the complainant had made the said withdrawals to the tune of Rs. 5.85 lacs as averred by him, reflecting that he had solvency for granting loan of Rs. 5.85 lacs as alleged by him.
28. It is also pertinent to note here that though the complainant was not able to answer specifically as to particular dates on which he advanced money to the accused, he has relied upon his bank statement Ex.CW1/F (colly) for the same in which every transaction with respect to the loan in question has been highlighted by him and no questions have been put to the complainant over the same. Further, the complainant has adequately answered to the questions that were put to him on the point of solvency, in his cross examination dated 11.05.2022, the relevant portion of which is reproduced hereunder: -
CC NO. 6215/2020AFTAB VS EZAJ AHMED page no.14 of 21 "I did not execute any document at the time of giving of loan. I had enclosed the bank statement of my other bank account which is current account and of my proprietorship firm namely " The Capital Merge of India". I have not shown the loan amount in my ITR. (vol. I do not file ITR). I had withdrawal the amount from bank and then, gave to accused as loan... I have withdrawal that amount from bank account of my proprietorship firm...My proprietorship firm is in the business of garments."
29. In light of the aforementioned dicta of Hon'ble Apex court and discussion, it is settled law that the complainant only has to prove his financial capacity to grant loan of the subject matter i.e. Rs. 5.85 lacs in the given case, whereas the burden of proving the defense taken by the accused that the said amount was not advanced to him, is upon the accused himself after the complainant has discharged his onus of proving his solvency. Therefore, this defence of the accused is devoid of merit in light of the documentary evidence that has been led by the complainant in support of his case.
30. It has also been argued on behalf of the accused at the stage of final arguments that major contradictions have come up in the cross examination and his averments made in the complaint. It has been argued firstly that the complainant has taken a contradictory stand as to the duration for which the loan was granted, and secondly that the complainant has not filed the note on record as alleged by him to have been made by him in his cross CC NO. 6215/2020 AFTAB VS EZAJ AHMED page no.15 of 21 examination.
31. It is pertinent to note here that the contradictions as pointed out by the counsel for the accused, in the testimony of the complainant, can at best, be seen as minor contradictions since the basic phenomena of error of human memory cannot be overlooked in the present factual matrix. The complainant has averred that the said loan was granted by him for a period of 6 months, in his complainant and also in his evidence affidavit, Ex. CW1/F. However, he stated that the loan was advanced for 12 months in his cross examination dated 11.05.2022. It is pertinent to note here that no further questions were put to the complainant by the counsel for accused on this point of contradiction and the complainant was also not confronted with his earlier averments, to give him a fair opportunity to explain his stand.
32. It must also be borne in mind that the factum of advancement of loan by the complainant to the accused has also been admitted by the accused. The complainant has also stated in his cross examination dated 11.05.2022 that the cheque in question was taken by him from the accused in the month of august, 2020 and presented by him for encashment thereafter. From bare perusal of record and his testimony, it is evident that the complainant took steps for recovery of his loan after six months from the date of last advancement of loan instalment i.e. 21.02.2020 CC NO. 6215/2020 AFTAB VS EZAJ AHMED page no.16 of 21 which is in tune to his averments made in his complaint and evidence affidavit. The relevant portion of cross examination of CW-1 dated 11.05.2022 is reproduced hereunder: -
"The accused approached me for money in the month of December 2018 for business need. I have given loan amount in five to six installments. I had given first installment of loan amount of Rs.90,000/- on 16.01.2019. I had given second installment of loan amount of Rs. 1,00,000/- on 20.09.2019. I do not know the date of remaining installment. (vol. Last installment of Rs. 90,000/- had given on 21.02.2021. Again said, the year of last installment is 21.02.2020). I had given total loan amount Rs.5,85,000/- to the accused. Accused has taken loan for tenure of 12 months. I have taken the cheques in question in the month of August, 2020."
33. Therefore, in light of the aforementioned facts and discussion, this court is of the view that even this defence of the accused is devoid of merit as it is settled law that as per the doctrine of reverse onus as per the provisions of the NI Act as applicable in the present case, the burden is on the accused to prove his defence with respect to the loan amount or its duration as in the present case which the accused has failed to discharge, even on the touchstone of probabilities.
34. As far as the defence of the accused with respect to the non filing of the said note is concerned, the complainant has already proved his solvency beyond reasonable doubt and the factum of taking loan has already CC NO. 6215/2020 AFTAB VS EZAJ AHMED page no.17 of 21 been admitted by the accused, even if it is to the tune of Rs.40,000/- and in light of this admission and the surrounding circumstances, the onus of proving that no legal liability of the accused to the tune of the cheque amount existed at the date of presentation of cheque is upon the accused and not the complainant and non filing of the said note by the complainant cannot be considered as a probable defence.
35. It has been argued on behalf of the accused at the time of final arguments that the accused had given a blank signed cheque to the complainant as the cheque is filled up in English which could not have filled up by him. It is pertinent to mention here that even if a blank signed cheque is given by the accused to the complainant and he fails to rebut the presumption against him, he would be liable under the contours of the NI Act as has been held by the Hon'ble Supreme Court in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197, wherein it was observed as under:
"33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted...36. Even a blank cheque leaf, voluntarily signed and CC NO. 6215/2020 AFTAB VS EZAJ AHMED page no.18 of 21 handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act , in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."
36. In view of the above discussion and dictum of Hon'ble Apex Court, even this defence of the accused does not come to his rescue. Also, the accused as DW-1 has stated in his examination in chief dated 07.10.2022 that he gave two security cheques to the complainant and the complainant has already returned one of his cheques. The relevant portion of examination in chief of DW-1 dated 07.10.2022 is reproduced hereunder: -
"I have given two cheques to the complainant as security. One cheque is already returned by the complainant to me. The second cheque that is the cheque in question was still in possession of the complainant."
37. It is pertinent to note here that the accused has not placed the second cheque on record to prove his stand and has not even testified regarding its number or other details to prove his averments. Further, no legal remedies have been sought by the accused against the complainant in order to recover his cheque that he alleges to be a security cheque. It is also pertinent to note that the reason of dishonor of cheque was not that of "stop payment";
"account closed" or the like to show bonafide of the accused in support of his version of misuse of cheque in question by the complainant but of "insufficient funds"
wherein the accused did not have sufficient funds in his CC NO. 6215/2020 AFTAB VS EZAJ AHMED page no.19 of 21 account for encashment of the cheque in question.
38. Also, though the accused has taken the defence of repayment of Rs.20,000/- as part payment to the complainant along with payment of former rate of interest, he has failed the prove the same even on preponderance of probabilities. Relevant portion of cross examination of DW-1 dated 07.10.2022 is reproduced hereunder: -
"It is correct that I have no receipts regarding repayment of Rs.20,000/- to the complainant. It is correct that I have no receipts or other proof regarding payment of interest to the complainant. I do not reply to the legal notice as I was with the complainant at that time and he informed me that notice was sent by him to me in regular course of business and I need not worry regarding the same."
In view thereof, the accused seems to have hatched a concocted story around taking of loan of only Rs. 40,000/- and interest rate as being charged by the complainant, in order to evade his legal liability. Therefore, the version of the accused does not inspire trust of this court.
39. On the other hand, the complainant has stood firm on his testimony throughout the trial on all aspects with respect to the said loan. Thus, this court is of the view that there existed legal liability of the accused to pay the complainant as to the cheque amount, on the date of presentation of the cheque in question and the accused has miserably failed to rebut the reverse onus that is cast upon him. He has failed to prove his defense due to lack of CC NO. 6215/2020 AFTAB VS EZAJ AHMED page no.20 of 21 cogent evidence and also as he was unable to impeach the credibility of the complainant.
CONCLUSION
40. In view of the above discussion, it is clear that accused has failed to raise a probable defence to rebut the presumption in favour of the holder in due course/complainant and in absence of probable defence the accused is held guilty for punishable under section 138 NI Act and resultantly convicted under Section 138 NI Act in the present case.
41. As such, the complainant has proved the offence beyond reasonable doubt and the accused has failed to raise a probable defence. Resultantly, the complaint of the complainant is allowed and the accused Ezaj Ahmed is hereby convicted of the offence under Section 138 of the Negotiable Instruments Act, 1881. Let the convict be heard separately on quantum of sentence. A copy of this judgment be given free of cost to the convict. Announced in the open court on 20.05.2023.
Digitally signed by
ABHILASHA ABHILASHA SINGH
SINGH Date: 2023.05.20
(ABHILASHA SINGH) 15:15:08 +0530
METROPOLITAN MAGISTRATE-02/N I ACT/SOUTH SAKET COURT/NEW DELHI/20.05.2023 Certified that this judgment contains 21 pages and each page bears my signature. Digitally signed by ABHILASHA ABHILASHA SINGH SINGH (ABHILASHA 15:15:19 SINGH) +0530 Date: 2023.05.20 METROPOLITAN MAGISTRATE-02/N I ACT/SOUTH SAKET COURT/NEW DELHI/20.05.2023 CC NO. 6215/2020 AFTAB VS EZAJ AHMED page no.21 of 21