Delhi District Court
3.Title Manoj Kumar Sharma vs . Karnail Singh on 27 September, 2022
THE COURT OF SHRI RUPINDER SINGH DHIMAN
METROPOLITAN MAGISTRATE01, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
1. CC No. 469/13, PS Bhajanpura
2.Unique Case no. 46297/2015
3.Title Manoj Kumar Sharma Vs. Karnail Singh
3(A).Name of complainant Mr. Manoj Kumar Sharma, S/o Shri Mahaveer
Prasad Sharma, R/o : V136, Behind MCD
School, Arvind Nagar, Ghonda, Delhi - 110053.
3(B).Name of accused Mr. Karnail Singh, S/o Late Shri Nannu Singh,
R/o : E5/1, Rajeev Gali, Dayalpur, Delhi -
110094.
4.Date of institution of case 21.09.2013
5.Date of Reserving judgment 23.09.2022
6.Date of pronouncement 27.09.2022
7.Date of commission of offence After 15th day of service of legal demand notice.
8.Offence complained of U/s 138 NI Act
9.Offence charged with U/s 138 NI Act
10.Plea of the accused Pleaded not guilty
11.Final order Convicted
12. Date of receiving of judicial 24.09.2013
file in this court
JUDGMENT
1. Briefly stated, the case of the complainant is that there were friendly relationships between the accused and the complainant since long. In January, 2013 accused approached the complainant and requested for a loan of Rs. 5,00,000/. Keeping in mind the good relationship with the accused, the complainant gave him a friendly loan of Rs. 4,00,000/. The accused assured the complainant that he would repay the loan shortly. The accused CIS No.: 46297/2015 Manoj Kumar Sharma Vs. Karnail Singh Page No. 1/17 also issued one cheque bearing no. 756979 from account no. 14412 drawn on Bank of Baroda, Bhajanpura, Delhi - 110094 dated 22.07.2013, amounting to Rs. 4,00,000/ with assurance that the same would be encashed on its presentation. When on 30.07.2013, the complainant presented the aforesaid cheque for its encashment, the same got dishonoured on 31.07.2013 with remarks "Funds Insufficient". Thereafter, when complainant approached the accused for repayment of said loan, he flatly refused to discharge his liability. Hence, left with no other option, the complainant got served a legal notice dated 17.08.2013 to the accused at his abovementioned address through speed post vide receipt no. ED251826294ID dated 17.08.2013 through his counsel which was duly served upon the accused on 19.08.2013. Despite service of legal notice the accused neither paid the cheque amount nor replied the same. Hence, the present complaint.
2. On the basis of presummoning evidence, accused was summoned for the offence u/s 138 Negotiable Instrument Act by the court. Vide order dated 10.09.2014, a notice U/s 251 Cr.P.C. for the offence punishable under Section 138 N.I. Act was framed against the accused by Ld. Predecessor of this Court with respect to which he pleaded not guilty and claimed trial. In his plea of defence, accused stated that the cheque in question was handed over to one Jitender Kumar Sharma who used to have business transactions with the accused. The amount has already been paid by him to Jitender Kumar Sharma.
3. The Complainant Manoj Kumar Sharma in order to prove his case examined himself as CW1. CW1 tendered in evidence his affidavit Ex. CW1/A and relied upon the following documents:
i) Ex. CW1/1 is the original dishonoured cheque bearing no. 756979 dated CIS No.: 46297/2015 Manoj Kumar Sharma Vs. Karnail Singh Page No. 2/17 22.07.2013 drawn on Bank of Baroda, Bhajanpura branch amounting to Rs. 4,00,000/.
ii) Ex. CW1/2 is the cheque return memo of Canara Bank.
iii) Ex. CW1/3 is the legal notice dated 17.08.2013 sent by the complainant to the accused.
iv) Ex. CW1/4 is the receipt of speed post.
v) Ex. CW1/5 is the tracking report.
4. He was cross examined by Shri Mahesh Kumar, Ld. Counsel for accused wherein he stated that he is doing the business of selling and purchasing clothes at his home. He knows the accused for the last 810 years. He has a wife, two daughters, one son and a mother in his family. The accused was having some TSR which were driven by his drivers and he was having earning from them. In the second week of January, 2013, accused approached him for loan as mentioned in his complaint. After about a week, he gave the same to the accused after arranging the same. He had given the said loan to the accused at his home. No written document was executed for the aforesaid loan transaction. The accused had brought the duly filled cheque with him. Complainant stated that he is an income tax assessee. He files ITR but he had not mentioned the loan in ITRs. He denied the suggestion that he had not given any such loan to the accused and therefore, he had not shown the same in his ITRs. He further deposed that on earlier occasion also, the accused had taken friendly loan from him. Those transactions were for Rs. 1020,000/. Earlier, he had not taken any cheqeus from him. He had paid the loan of Rs. 4,00,000/ to the accused in cash. The amount was given in notes of denomination of Rs. 1,000/ and Rs. 500/. He had withdrawn some amount from his bank account and some amount was CIS No.: 46297/2015 Manoj Kumar Sharma Vs. Karnail Singh Page No. 3/17 lying at home, however, he does not remember as to what was the amount withdrawn from the bank. He stated that he can bring his statement of bank account. His father had withdrawn the amount from his bank account. However, he does not know whether his brother had the amount at home or he had withdrawn it from the bank account. His father had given Rs. 1,50,000/ and elder brother had given Rs. 50,000/ to him. He denied the suggestion that he had not withdrawn any such amount from his bank account and therefore, he had not filed his statement of account. He denied the suggestion that he had not taken any money from his brother and his father as stated above. He denied the suggestion that he had not given any money to the accused at any point of time. The accused met with him after the cheque had been dishonoured. However, he does not remember the date. He denied the suggestion that he does not know the accused. He denied the suggestion that accused had come to his home when he received legal notice and asked him as to how he had issued the said legal notice to him, he had said that he does not know him. He denied the suggestion that accused did not take any loan from him and therefore, he had refused to identify the accused. He denied the suggest that accused had given the cheque in question to his friend Jitender Kumar Sharma and he had misused the said cheque in connivance with said Jitender Kumar Sharma. He denied the suggestion that he had filed a false complaint against the accused to extort money. He denied the suggestion that he had been deposing falsely.
5. No other witness was examined by the complainant and CE was closed.
6. Statement of accused was recorded on 10.11.2016 U/s 281 Cr.P.C. r/w section 313 Cr.P.C. wherein he stated that the cheque in question was not given the complainant. Rather, he had given the said cheque to one Jitender Kumar Sharma, S/o Shri Chander Bhan Sharma in the year 2007. The CIS No.: 46297/2015 Manoj Kumar Sharma Vs. Karnail Singh Page No. 4/17 cheque was only bearing his signatures at that time. The other particulars were not filled up. The Complainant is the friend of Jitender Kumar Sharma. They have misused the cheque in question in collusion with each other.
7. The accused chose to lead DE during his statement. He examined himself as DW1 on 20.05.2019. During his deposition, DW1 Karnail Singh stated that he did not know complainant Manoj Sharma till his appearance in this case before the court. He had not done any money transaction with said Manoj Sharma in his life. He had given cheque in question to Jitender Kumar Sharma and he came to know that complainant was friend of said Jitender Kumar Sharma. He had taken Rs. 10,000/ from Jitender Kumar Sharma in the year 2007 on interest @ 35% per month. He had already repaid the said amount to Jitender Kumar Sharma alongwith interest but he did not return the cheque in question to him despite his request on the pretext that he had lost the same. He contacted complainant after receiving the legal demand notice in the year 2014. Complainant had acknowledged that he did not know him and some society of his advocate Manoj Kumar had filed this case. He had videographed the aforesaid conversation with the Complainant at the time of his first visit at the given address of the complainant and after receiving the legal demand notice from the complainant. Thereafter, he brought the CD alongwith transcript of the conversation mark D in the court. He was cross examined by Shri Mahesh Kumar Sharma, Counsel for Complainant wherein he stated that he filed a complaint against the complainant Manoj as he did not know him by dialling 100. However, he had not filed any complaint on record on this aspect. He denied the suggestion that he did not file any such complaint and therefore, he had not filed any such record. He further stated that he did not take any permission before making the videography of the conversation I.e mark D. His friend accompanied him. He denied the CIS No.: 46297/2015 Manoj Kumar Sharma Vs. Karnail Singh Page No. 5/17 suggestion that contents of the CD were manipulated. He denied the suggestion that the transcription was manipulated. He accepted that he has put the signatures on the cheque but he had not given any cheque to the Complainant. He had filed his complaint regarding the misuse of cheque by the complainant by dialling 100 number and IO from PS Bhajanpura attended his call. However, he stated that the matter was pending in the court and he could take action in court. However, no separate complaint was filed in this respect. He denied the suggestion that he had taken a loan of Rs. 4,00,000/ from the complainant and in order to escape his liability he had been deposing falsely.
8. DW2 is Ram Kumar. He has deposed that on 19.01.2014, he was present at his house. Meanwhile, Karnail Singh came to his house and told him that he had received a notice and he did not know the person who sent the said notice. Thereafter, he alongwith Karnail Singh reached to the house of Manoj Kumar Sharma where the father of the said Manoj Kumar Sharma was present there. Father of Manoj called him who was present at home. Manoj came out of his house and thereafter, some discussion went on between Karnail Singh and Manoj Kumar Sharma. On inquiry Manoj Kumar disclosed that he had not got any cheque bounced and also had not given any moneny to anyone. He further said that it might be possible that counsel of his society might have issued said notice on his behalf. He further told them to come in the evening and he will inquire the facts from his society. When they again reached at the house of Manoj Kumar Sharma in the evening, Manoj Kumar threatened to Karnail Singh to implicate him in false criminal case of threats. Thereafter, they came back to their house. On 02.02.2014, he alongwith Karnail Singh again visited the house of Manoj Kumar Sharma and they saw him at the house and made a call at 100 number. When PCR came there, the CIS No.: 46297/2015 Manoj Kumar Sharma Vs. Karnail Singh Page No. 6/17 father of Manoj Kumar Sharma told that Manoj was not present at home. Thereafter, PCR Van returned back and IO came from PS at house of Manoj Kumar Sharma but he again said that Manoj was not present at his house. he was cross examined by Shri Mahesh Kumar Sharma, Ld. Counsel for accused wherein he deposed that he does not know the address of Manoj Kumar Sharma, however, he is residing somewhere in Bhajanpura. Karnail Singh came to him at about 10:30 AM to 10:45 AM. At around 12:00 noon they reached the house of Manoj Kumar Sharma. He and Karnail Singh did not know father of Manoj Kumar Sharma and Manoj Kumar Sharma by face and particulars. They did not see any ID proof of the father of Manoj Kumar Sharma and Manoj Kumar Sharma. Manoj Kumar Sharma did not disclose about the name of alleged society who may send notice on his behalf. They did not show their ID proofs to Manoj Kumar Sharma. They did not make any complaints in respect of threats given by Manoj Kumar Sharma. He denied the suggestion that he did not gone to the house of Manoj Kumar Sharma. He denied the suggestion that he had not met Manoj Kumar Sharma or his father on 19.01.2014. It is correct that Karnail Singh is his friend. He denied the suggestion that he was deposing falsely.
9. Thereafter, matter was fixed for final arguments. Counsel for Complainant filed written submissions while counsel for accused orally argued the matter. I have heard the rival submissions of the parties and perused the material on record. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first. Now, Section 138 Negotiable Instrument Act provides as under : Section 138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to CIS No.: 46297/2015 Manoj Kumar Sharma Vs. Karnail Singh Page No. 7/17 another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless
--
the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and he drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation -- for the purposes of this section, "debt or other liability"
means a legally enforceable debt or other liability.
10. It is well settled position of law that to constitute an offence under S.138 N.I. Act, the following ingredients are required to be fulfilled: CIS No.: 46297/2015 Manoj Kumar Sharma Vs. Karnail Singh Page No. 8/17
i) drawing of the cheque by a person on an account maintained by him with a banker, for payment to another person from out of that account for discharge in whole/part any debt or liability;
ii) cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier,
iii) returning the cheque unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque,
iv) giving notice in writing to the drawer of the cheque within 30 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount,
v) failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice.
11. Being cumulative, it is only when all the ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the N I Act.
12. Analyzing all the concerned provisions of law and various pronouncements in this regard, the Hon'ble Apex Court in Basalingappa v. Mudibasappa, AIR 2019 SC 1983, noted at para 23 as follows [Bharat Barrel and Drum Manufacturing Company v. Amin Chand Pyarelal, (1999) 3 SCC 35; M.S. Narayana Menon alias Mani v. State of Kerala and another, (2006) 6 SCC 39; Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54; Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513; Rangappa v. Sri Mohan, (2010) 11 SCC 441 referred] :
CIS No.: 46297/2015 Manoj Kumar Sharma Vs. Karnail Singh Page No. 9/17a. 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.
b. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
c. To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable 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.
d. 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.
13. To put in nutshell, the law regarding the presumption for the offence under Section 138 N.I. Act, the presumptions under Sections 118(a) and 139 have to be compulsorily raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted upon the accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. The onus to prove the issuance of the cheque lies upon the complainant, and the same has to be proved beyond reasonable doubt, unless the accused admits the same. Once the issuance of cheque is established, either by admission or by positive CIS No.: 46297/2015 Manoj Kumar Sharma Vs. Karnail Singh Page No. 10/17 evidence, the presumption under Section 139 of the Negotiable Instruments Act, 1881 arises. We can summarize the general principles in the following way : Onus of proof: Section 139 of the Negotiable Instruments Act, 1881 states that 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. Therefore, here the onus shifts upon the accused to prove the nonexistence of debt or other liability. Section 139 of the Negotiable Instruments Act, 1881 uses the word "shall presume", which means that the presumption under Section 139 is rebuttable.
Standard of proof: The standard of proof required to rebut the presumption under Section 139 is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or other liability, the onus shifts back to the complainant to prove by way of evidence, beyond reasonable doubt, that the cheque in question was issued by the accused in discharge, whole or in part, of any debt or other liability, and now the presumptions under Section 118 (a) and Section 139 will not come to the aid of the complainant.
Mode of Proof: The accused may adduce direct evidence to prove that the note/cheque in question was not supported by consideration, and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should prove the nonexistence of the consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that a bare denial of passing of consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the CIS No.: 46297/2015 Manoj Kumar Sharma Vs. Karnail Singh Page No. 11/17 accused should bring on record such facts and circumstances upon the consideration of which, the Court may either believe that the consideration and debt did not exist, or their nonexistence was so probable that a prudent man would, under circumstances of the case, act upon the plea that they did not exist.
14. As discussed above, from the legal provisions and the law laid down in various judgments, it can be safely gathered that it is for the accused to rebut the presumptions. He can do so by cross examining the complainant, leading defence evidence, thereby demolishing the case of the complainant. It is amply clear that the accused does not need to discharge his or her liability beyond the shadow of reasonable doubt. He just needs to create holes in the case set out by the complainant. Accused can say that the version brought forth by the complainant is inherently unbelievable and therefore the prosecution cannot stand. In this situation the accused has nothing to do except to point inherent inconsistency in the version of the complainant or the accused can give his version of the story and say that based on his version the story of the complainant cannot be believed.
15. Coming to the facts of the present case, the accused in his plea of defence at the time of notice has admitted the execution of the cheque in question. Therefore, the Act raises two presumptions in favour of the holder of the cheque i.e., firstly, regarding the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption under Section 139, that the holder of cheque, received the same for discharge, in whole or in part, of any debt or other liability. Hence, onus was upon the accused to rebut the said presumptions. Accordingly, I proceed to consider the contentions raised by the accused to rebutt the presumptions.
16. First contention raised by accused is that he had issued blank signed cheques CIS No.: 46297/2015 Manoj Kumar Sharma Vs. Karnail Singh Page No. 12/17 to the friend of the complainant Jitender Kumar Sharma as security. However, by virtue of section 20 NI Act, a right has been created in the holder of the cheque that when a blank cheque is signed and handed over, it means that the person signing it has given an implied authority to any subsequent holder to fill it up. Prima facie, holder thereof is authorized to complete the incomplete inchoate instrument. Thus, merely allegations of issuance of incomplete negotiable instrument does not make absolute defence in favour of the accused. There is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. Hence, once accused has admitted his signatures on cheque, he cannot escape his liability on the ground that the same is not filled in by him. A person issuing a blank cheque is supposed to understand the consequences of doing so. Thus, this defence is of no assistance to the accused (Jaspal Singh Vs. State, crl. rev. 160/2016, by Hon'ble High Court of Delhi and Ravi Chopra Vs. State 2008 (102) DRJ 147, relied upon).
17. As regards the defence of the accused that the cheque in question was the security cheque, the said contention is without any merits. A security cheque falls within the purview of section 138 NI Act. In Credential Leasing and Credits Ltd Vs. Shruti Investments and Anr. 233 (2015) DLT 343, it has been held that the scope of section 138 NI Act would cover such cases where ascertained and crystallized debt or other liability exists on the day when the cheque is presented and not only to the cases where ascertained and crystallized debt or other liability exists on the day when it was delivered to the holder as a post dated cheque or as a current cheque with a credit period. Hence, it would have to be examined on a case to case basis, whether ascertained or crystallized debt of other liability exists, or not. With respect CIS No.: 46297/2015 Manoj Kumar Sharma Vs. Karnail Singh Page No. 13/17 to the denial of any existing liability qua the impugned cheque, accused has stated that no loan of Rs. 4,00,000/ was taken by him from the Complainant and therefore, there exists no liability qua the impugned cheque upon him. However, Hon'ble Supreme Court in Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513, held that bare denial of passing of consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden shifted to the Complainant. In the present case, accused has been unable to prove material inconsistency in the testimony of the Complainant to rebutt the presumptions. In his own testimony, though accused has deposed that Complainant does not even know him and he had no dealing with the Complainant but he has been unable to prove it. Complainant also filed a videography alongwith transcript (mark D colly) to show that the Complainant does not know him. However, no certificate U/s 65B of Indian Evidence Act was filed qua the said CD mentioning the device by which it was recorded and that there has been no tampering in the said CD. Therefore, the CD remains inadmissible and cannot be relied upon. In this respect, testimony of DW2 is also not reliable. Though he has deposed that the Complainant Manoj Kumar failed to identify the accused on 19.01.2014 when he went to the house of the Complainant alongwith the accused. However, in his crossexamination, he even failed to tell the place where the complainant resides. He simply stated that the Complainant resides somewhere in Bhajanpura. Here it is also pertinent to mention that the accused in his plea of defence had stated that in cheque in question was given to Jitender but no steps were taken to examine him to prove the said plea nor any reasons brought on record for his non examination.
18. Another contention raised on behalf of the accused was that the Complainant CIS No.: 46297/2015 Manoj Kumar Sharma Vs. Karnail Singh Page No. 14/17 did not have funds to advance a loan of Rs. 4,00,000/ to the Complainant. It was argued that therefore, the Complainant did not file his ITR on record. It was also submitted that as no loan was advanced, therefore, the Complainant has not shown the transaction in his ITR and hence, he has not filed the same on record. But the said contention is also of no assistance to the accused. Complainant in his examination in chief has explained that Rs. 1,50,000/ was given to him by his father and Rs. 50,000/ was given to him by his elder brother. Remaining amount was available with him. Even otherwise, there is no need to go into the evidence of the Complainant and it cannot be considered until accused discharges his primary burden under section 139 of NI Act. The Complainant need not prove his source of funds until the accused discharges his burden to rebutt the presumptions, as has been held by the Apex Court in Rohit Bhai Jeevan Lal Patel Vs. State of Gujarat 2019 SCC online SC 389. It was observed by the Hon'ble Apex court in para 17 of Rohit Bhai Jeevan Lal (supra) : "17. In the case at hand, even after purportedly drawing the presumption under section 139 NI Act, the trial court proceeded to question the want of evidence on the part of the Complainant as regards the source of funds for advancing the loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the trial court had been at variance with the principles of presumptions in law. After such presumptions, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the accused/appellant. The aspect relevant for consideration had been as to whether the accused / appellant has brought on record such facts/material/circumstances which could be of a reasonably probable defence."
CIS No.: 46297/2015 Manoj Kumar Sharma Vs. Karnail Singh Page No. 15/1723. This view was also reiterated by the Hon'ble Apex Court in criminal appeal no. 12331235 of 2022 in P. Rasiya Vs. Abdul and Anr. in its order dated 12.08.2022 and it was observed that the presumption under section 139 NI Act is a statutory presumption and therefore, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in the favour of the Complainant/holder of the cheque, in that case, it is for the accused to prove the contrary. In the said case, complainant had not even stated the nature of the transaction or the source of funds, but the Hon'ble Apex Court held that once the initial burden is discharged by the Complainant that the cheque was issued by the accused and signatures on the cheque is not disputed, the onus will remain upon the accused to prove the contrary that the cheque was not issued in discharge of any debt or other liability. Therefore, this contention is also of no assistance to the accused. Here it is also pertainent to mention that the receipt of legal notice is not disputed by the accused but no complaint was filed by him before the police or any other court to allege that the impugned cheque has been misused by the Complainant.
24. In these circumstances, in view of the aforesaid discussion, I find that the defence of the accused seems implausible. He has failed to substantiate his defence and rebutt the presumptions U/s 139/118 NI Act. The accused has failed to prove by cogent evidence that there existed no debt or liability upon him qua the impugned cheque. For shifting the burden, accused had to prove his defence by preponderance of probabilities whereas he has failed to do so. He has failed to bring on record something which is probable for getting the burden of proof shifted to the Complainant. Without rebutting the presumptions, the onus to prove the case will not shift to the Complainant as the evidence of the Complainant cannot be considered till the accused raises his probable defence in his favour. However, in the present case, accused has CIS No.: 46297/2015 Manoj Kumar Sharma Vs. Karnail Singh Page No. 16/17 failed to do so. Accordingly, Complainant has been able to prove by aid of presumptions in his favour that the impugned cheques bearing no. 756979 dated 22.07.2013 Ex. CW1/1 for a sum of Rs. 4,00,000/ was issued in discharge of valid legally recoverable liability owed to the Complainant by accused and the said cheque was dishonoured on presentation. Service of legal notice is admitted by the accused in his statement under section 313 Cr.P.C. Despite service of legal notice, payment was not made within the prescribed period. Thus, therefore, based upon the entirety of evidence, this Court holds the accused guilty. Accused is accordingly convicted for the offence punishable U/s 138 NI Act.
25. Let the parties be heard on the quantum of sentence. Copy of judgment be given free of cost to the convict.
Digitally signed RUPINDER by RUPINDER
SINGH SINGH DHIMAN
Date: 2022.09.27
DHIMAN 16:59:14 +0530
Announced in the (RUPINDER SINGH DHIMAN)
Open Court on 27.09.2022 Metropolitan Magistrate01
KKD Courts/NE/Delhi
It is certified that this judgment contains seventeen (17) pages, and each page Digitally signed by bears my signature. RUPINDER SINGH DHIMAN RUPINDER SINGH DHIMAN Date: 2022.09.27 16:59:26 +0530 (RUPINDER SINGH DHIMAN) Metropolitan Magistrate01 NE/KKD Courts, Delhi 27.09.2022 CIS No.: 46297/2015 Manoj Kumar Sharma Vs. Karnail Singh Page No. 17/17