Delhi District Court
28.The Hon'Ble Delhi High Court In vs . Yadav V. Reena, 172 (2010) Dlt 561, Had on 9 September, 2022
Jitender Kumar v. Saurabh Chopra
CC No.11349/2017
IN THE COURT OF MS. TWINKLE CHAWLA: MM, NI ACT-02, SOUTH-
EAST DISTRICT, SAKET COURTS COMPLEX: NEW DELHI
Jitender Kumar v. Saurabh Chopra
CC No.11349/2017
U/s 138 Negotiable Instruments Act, 1881
1. CIS number : DLSE020333072017
2. Name of the Complainant : Jitender Kumar.
3. Name of the Accused, : Sh. Saurabh Chopra, S/o Sh. Ramesh
parentage & residential Chander Chopra, R/o P-1, Mohan Garden
address Extension, Uttam Nagar, Delhi-59.
4. Offence complained of or : U/s 138 of Negotiable Instruments Act,
proved 1881
5. Plea of the Accused : Pleaded not guilty and claimed trial
6. Final Judgment/order : ACQUITTED
7. Date of judgment/order : 09.09.2022
JUDGMENT
1. The Complainant has filed the present complaint under Section 138 /142 of Negotiable Instruments Act, 1881 ("NI Act") against the Accused on the averments that the Complainant had approached the Accused for the settlement of his credit card bill with HDFC Bank, for a liaisoning fees of Rs. 1,07,000/-. As per the Complainant, he paid the same, however, the Accused did not get the credit card Page 1 of 22 Jitender Kumar v. Saurabh Chopra CC No.11349/2017 bill settled. Thereafter, the Complainant approached the Uttam Nagar Police Station, wherein the Accused was called, and he undertook to repay the said amount to the Complainant.
2. As per the Complainant, the Accused in discharge of his liability, issued a post- dated cheque bearing no. 071484 dated 07.10.2014 amounting to Rs. 1,07,000/- drawn on Punjab National Bank, F-Block, Vikas Puri, New Delhi in favour of the Complainant (hereinafter referred as "cheque in question"). The same was returned unpaid vide return memo dated 09.10.2014 for the reason "Funds Insufficient". The Complainant sent the legal demand notice dated 18.10.2014 through Speed Post at address of the Accused. Hence, despite the service of the legal demand notice, the Accused failed to make the payment within the stipulated period and the Complainant filed the present complaint.
3. After taking pre-summoning evidence, Accused was ordered to be summoned in this case for commission of offence under Section 138 of NI Act, vide order dated 23.04.2015.
4. Accused appeared and was released on bail on 02.03.2016. On finding a prima facie case, notice U/s 251 of the Criminal Procedure Code, 1973 ("CrPC") was served upon the Accused on 02.03.2016 to which he pleaded not guilty and opted to contest after disclosing the following defence:
"I have no relation or transaction of any kind with the Complainant. I Page 2 of 22 Jitender Kumar v. Saurabh Chopra CC No.11349/2017 am usually travelling out of station and my blank signed cheques are lying with my friend Mr. Ravinder Singh. I do not know how my cheque has reached the Complainant and I will have to find out from my friend about it. The present case is a false one as there is no dealing of mine with the Complainant. I have not received any legal notice from the Complainant."
5. Vide order dated 02.03.2016, opportunity was granted to the Accused to cross examine the Complainant. The Complainant/CW1 adopted his pre-summoning evidence affidavit, Ex. CW1/A and also proved following documents:
Ex. C-1: Letter dt. 13.08.2014 addressed to the SHO,
Uttam Nagar.
Ex. CW1/1: Original Cheque bearing no. 071484 dt.
07.10.2014 amounting to Rs. 1,07,000/-.
Ex. CW1/2: Return Memo dt. 09.10.2014.
Ex. CW1/3: Legal Notice dt. 18.10.2014
Ex. CW1/4: Receipt of Speed Post dt. 22.10.2014.
Ex. CW1/5: Tracking Report.
Complainant Evidence was closed vide separate statement on 10.05.2018.
6. Thereafter, Accused was examined under Section 313 of CrPC on 26.03.2019 for explaining the circumstances appearing against him in the Complainant's evidence. He denied the Complainant's case and pleaded false implication in the present case and opted to lead evidence in his defence. Accused led defence evidence and examined himself as DW-1. Defence evidence was closed vide separate statement Page 3 of 22 Jitender Kumar v. Saurabh Chopra CC No.11349/2017 of the Accused on 06.05.2022.
7. Additional statement of the Accused was recorded U/s. 313 CrPC on 07.09.2022.
8. I have heard Ld. Counsel for the parties and have perused the case file along with the written submissions filed by the parties carefully and meticulously. Submissions of the Complainant and Accused
9. The Ld. Counsel for the Complainant has submitted that all ingredients of Section 138 NI Act are fulfilled in the present case and hence, the presumption under Section 139 NI Act arises in the favour of the Complainant, which has not been successfully rebutted by the Accused.
10.Per contra, Ld. Counsel for the Accused has submitted that the Accused deserves to be acquitted as firstly, the cheque in question was never issued to the Complainant and that the Accused is not even acquainted with the Complainant; and secondly, even if the case of the Complainant is admitted, then the transaction in the present case is illegal and is hit by the bar of Section 23 of the Indian Contract Act, 1871. Hence, as per the Ld. Counsel for the Accused, the Accused has rebutted the presumption by way of preponderance of probabilities.
Legal Framework Ingredients of Section 138 NI Act:
11.The Hon'ble Supreme Court of India in Kusum Ingots & Alloys Ltd and Ors v. K Page 4 of 22 Jitender Kumar v. Saurabh Chopra CC No.11349/2017 Pennar Peterson Securities Ltd and Ors., (2000) 2 SCC 745 ("Kusum Ingots Case"), has clearly stipulated that "the ingredients which are to be satisfied for making out a case under the provision are:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability; 1
(ii) that 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) that cheque is 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;
(iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the 2 drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and 1 Reduced to three months vide RBI circular dated 4.11.2011. 2
The same is now enhanced to 30 days.
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(v) 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;
If the aforementioned ingredients are satisfied then the person who has drawn the cheque shall be deemed to have committed an offence."
12.Therefore, if the aforesaid ingredients are made out, the Accused is deemed to have committed an offence under Section 138 NI Act.
Presumption under Section 139 NI Act/Section 118 NI Act:
13.Section 139 NI Act states that:
"Presumption in favour of holder: It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability"
14.Section 139 NI Act is a type of reverse onus clause, which stipulates a presumption in the favour of the Complainant as to fact of a cheque being received in discharge of a legal debt or liability.
15.Further, Section 118(a) of the NI Act, states as follows:
"Presumptions as to negotiable instruments. -- Until the contrary is proved, the following presumptions shall be made:Page 6 of 22
Jitender Kumar v. Saurabh Chopra CC No.11349/2017
(a) of consideration --that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;"
16.The Hon'ble Supreme Court of India has in a number of judgments dealt with the combined effect of the presumptions raised under Section 139 and Section 118(a) NI Act.
17.The following proposition can be summarized on a perusal of the judgments of the Hon'ble Supreme Court of India in Sunil Todi & Ors v. State of Gujarat, LL 2021 SC 706, Kalamani Tex v. P. Balasubramanian, 2021 SCC OnLine SC 75; APS Forex Services Pvt. Ltd. v. Shakti International Fashion Linkers and Ors., AIR 2020 SC 945; Rohitbhai Jivanlal Patel v. State of Gujarat and Ors., AIR 2019 SC 1876; Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 ("Kumar Exports Case"); K.N. Beena v. Muniyappan and Anr., (2001) 8 SCC 458; and Dhanvantrai Balwantrai Desai v. State of Maharashtra, 1964 Cri. LJ 437:
(i) Once the execution of cheque is admitted; Section 139 of the NI Act mandates a presumption that the cheque was for the discharge of legally enforceable debt or liability;
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the Accused to raise the probable defence. The standard of proof Page 7 of 22 Jitender Kumar v. Saurabh Chopra CC No.11349/2017 for rebutting the presumption is that of preponderance of probabilities;
(iii) Something which is probable has to be brought on record by the Accused for getting the burden of proof shifted to the Complainant. To disprove the presumptions, the Accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist;
(iv) The words "unless the contrary is proved" which occur in Section 139, make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by Section 139 NI Act cannot be said to be rebutted;
(v) 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 Page 8 of 22 Jitender Kumar v. Saurabh Chopra CC No.11349/2017 by the parties but also by reference to the circumstances upon which they rely;
(vi) 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.
Analysis
18.In the case at hand, it is not in dispute that the cheque in question was drawn by the Accused from his bank account or that the same has been signed by him, as in the defence disclosed by the Accused U/s 251 CrPC and Section 313 CrPC statement; he has duly admitted the same. Presentation of the cheque in question and its dishonour on the grounds of "funds insufficient" is also not in dispute.
19.The Complainant sent the legal demand notice, dated 18.10.2014 (Ex. CW1/3) by way of speed post (Ex. CW1/4). While the receipt of the legal demand notice has been denied by the Accused, it is seen that as per the tracking report, Ex. CW1/5, the same has been duly delivered; and in any event, the address mentioned by the Accused in the bail bonds is the same as the one mentioned on the legal demand notice. Further, in the response to question in statement U/s. 313 CrPC with respect to the legal demand notice, the Accused has, while denying the receipt of the same, stated that "the address mentioned in the legal demand notice is my correct address". Hence, the legal demand notice was sent on the correct address of the Page 9 of 22 Jitender Kumar v. Saurabh Chopra CC No.11349/2017 Accused. Therefore, a presumption of due service is drawn u/s 27 of General Clauses Act, 1897; which provides that where the notice is sent by registered post to the correct address, the same shall be presumed to have been duly served. In M/s Darbar Exports and other v. Bank of India, 2003 (2) SCC (NI) 132 (Delhi), the Hon'ble High Court of Delhi held that a presumption of service of notice is to be drawn where the notice is sent through registered post as well as UPC on correct address. Further, the Hon'ble Supreme Court in C.C. Alavi Hazi v. Palapetty Muhammad & Anr, (2007) 6SCC 555 has held that: "Any drawer who claims that he did not receive the notice by post, can, within 15 days of receipt of summons from the court in respect of the complaint U/s 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of complaint U/s 138 of the Act, cannot obviously contend that there was no proper service of notice as required U/s 138, by ignoring statutory presumption to the contrary U/s 27 of the General Clauses Act and Section 114 of the Evidence Act.".
20.Thus, the legal demand notice Ex. CW1/3 is held to have been duly served upon the Accused. Finally, the complaint has been filed within the limitation period. Therefore, essential ingredients (i) to (v) as stipulated by the Hon'ble SC in Kusum Ingots Case (supra), have been duly satisfied.
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21.Further, as noted above, once the execution of the cheque by the Accused is proved/admitted, the presumption of the same being drawn for consideration stands attracted in terms of Section 139 NI Act. Now, in the case at hand, so far as the question of existence of basic ingredients for drawing of presumption U/s 118 (a) and 139 of the NI Act is concerned, from the aforesaid discussion, it is apparent that the Accused has not denied his signatures on the cheque in question that has been drawn in favour of the Complainant on a bank account maintained by the Accused; and hence the said presumption can be drawn. The Ld. Counsel for the Accused has stated that such inference cannot be drawn as the particulars on the cheque have not been filled by or at the instance of the Accused. At this stage, reliance can be laid on the observations of the Hon'ble SC in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197; wherein it has been held that:
"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...
38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the Accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence...
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40. Even a blank cheque leaf voluntarily signed and 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."
(emphasis supplied)
22.The same view has been endorsed by the Hon'ble High Court of Delhi in Ravi Chopra v. State, CRL.M.C. 5211/2006.
23.Hence, in view of such clear stipulation by the Hon'ble Supreme Court and Hon'ble Delhi High Court, it is immaterial whether or not the particulars on the cheque have been filled by the Accused or not, to the extent the Accused has admitted to have appended his signatures on the cheque in question. Accordingly, the applicability of the presumption under Section 139 NI Act is not dependent upon the Accused filling the particulars on the cheque. Accordingly, it is required to be presumed that the cheque in question were drawn for consideration and the holder of the cheque i.e., the Complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the Accused to establish a probable defence so as to rebut such a presumption.
24.In the segment on legal framework, set out above, the legal proposition with respect to the burden of proof upon the Accused has already been discussed. Hence, it is Page 12 of 22 Jitender Kumar v. Saurabh Chopra CC No.11349/2017 now to be examined as to whether the Accused brought any material on record or pointed out glaring discrepancies in the material produced by the Complainant for dislodging the presumption which meets the standard of preponderance of probabilities.
25.The Accused in the present case, has taken the following line of defence with a view to rebut the presumption:
(a) There was no transaction with the Complainant and that the cheque in question was never handed over to the Complainant:
26.The case of the Complainant is that the Accused was an occupant of an office namely, A to Z, which was situated at Uttam Nagar, and the Complainant had approached the Accused for help with settlement of his credit card bill and upon the assurance of the Accused, gave him an amount of Rs. 1,07,000/-, as liaising fee, with the understanding that the Complainant's credit card bill of Rs. 3,10,000/- would get settled at the behest of the Accused. However, the same was not done by the Accused and the Complainant then approached the Uttam Nagar Police Station, where the Accused undertook by way of Ex. C-1 to return the said amount of Rs. 1,07,000/- to the Complainant. Subsequently, the cheque in question was issued to the Complainant by the Accused.
27.However, the Accused has in his defence evidence deposed that the cheque in question was given as a blank signed cheque to his one friend, namely Lokesh Page 13 of 22 Jitender Kumar v. Saurabh Chopra CC No.11349/2017 Bhasin for the payment of electricity dues and that he does not know how the cheque in question reached the Complainant. He has further deposed that he did not know any business in the name of A to Z Company and that he was never called by the Uttam Nagar Police Station. He has also denied the execution of the letter, Ex. C-
1. It is firstly seen that while the Accused has in his defence evidence stated that the cheque in question was given to his friend namely Lokesh Bhasin for paying electricity dues, he has in his notice u/s 251 CrPC stated that the since he is usually travelling out of town, his blank signed cheques are kept with one Sh. Ravinder Singh; and in the cross-examination of the Complainant, a suggestion has been put to the Complainant by the Ld. Counsel for the Accused that the Complainant had misused the cheque by taking the same from "one common friend namely Ravi". Hence, at all stages of trial, the Accused has deposed differently as to the person to whom the cheque in question was given by him; and the purpose for which the cheque in question was given to that person. Additionally, the Accused has not even examined the said friend in support of this deposition. It is trite principle that the best evidence must be produced in the case, and if the defence of the Accused was that he had given the cheque in question to his friend, who might have given it further to the Complainant, he should have examined the said person, to buttress his defence. On the other hand, the Complainant has given specific deposition as to the 3 location of the A to Z services office, the address of the Accused, the place where 3 Paragraph 2 of the complaint.
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Jitender Kumar v. Saurabh Chopra CC No.11349/2017 the cheque in question was handed over to him by the Accused. In the absence of any further averments/explanation from the side of the Accused or any possible motive attributed to the Complainant, it makes it highly improbable for a stranger to not only possess a signed cheque of a person, but also know the address of the said person and have a letter in his possession, which appears to have been signed by the said person. What is more improbable is that the Accused, despite receiving the legal demand notice (as per the tracking report, Ex. CW1/5) in the present case; and in any event, the summons in the present case; has not taken any legal action against the Complainant or his friend, for misuse of his cheque in question. it is settled law that circumstantial evidence has to be weighed from the point of view of a reasonable man (Kumar Exports Case (supra)). It is also observed that the Accused has simply denied that he has not signed the letter, Ex. C-1, but he has not led any evidence to support his contention.
28.The Hon'ble Delhi High Court in VS. Yadav v. Reena, 172 (2010) DLT 561, had noted that:
"In order to rebut the presumption under Section 139 of N.I. Act, the Accused, by cogent evidence, has to prove the circumstance under which cheques were issued. It was for the Accused to prove if no loan was taken why he did not write a letter to the Complainant for return of the cheque. Unless the Accused had proved that he acted like a normal businessman/prudent person entering into a contract he could not have Page 15 of 22 Jitender Kumar v. Saurabh Chopra CC No.11349/2017 rebutted the presumption under section 139 N.I. Act. If no loan was given but cheques were retained, he immediately would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as Complainant. Nothing was proved in this case." (emphasis supplied)
29.Similarly, the Hon'ble Supreme Court in Shree Daneshwari Traders v. Sanjay Jain & Anr., AIR 2019 SC 4003, observed that:
"the defence of the Respondent that though he made payment for the commodities/rice bags, the blank cheques were not returned by the Appellant-Complainant is quite unbelievable and unacceptable."
(emphasis supplied)
30.Moreover, recently, the Hon'ble Supreme Court in APS Forex Case (supra) has noted that:
"However, to rebut the presumption, the Accused was required to lead the evidence that full amount due and payable to the Complainant has been paid. In the present case, no such evidence has been led by the Accused. The story put forward by the Accused that the cheques were given by way of security is not believable in the absence of further evidence to rebut the presumption." (emphasis supplied)
31. In view hereof, the contention of the Accused that he had handed over the cheque Page 16 of 22 Jitender Kumar v. Saurabh Chopra CC No.11349/2017 in question to a friend for payment of electricity dues, is not believable in light of
(a) the inconsistent stance taken by the Accused as to the name of the friend and the purpose for which the cheque was given; (b) absence of any legal action against the Complainant and the said common friend for misuse of the cheque in question; (c) absence of examination of the said friend as to the fact of signed cheque in question being in his possession; and (d) absence of any possible/probable explanation for the Complainant to be in possession of the signed cheque, details such as address of the Accused and possession of a signed letter. Hence, the said defence of absence of transaction between the Complainant and the Accused is not proved by the standard of preponderance of probabilities. The said defence, is only possible and not probable.
(b) The transaction in question is hit by Section 23 of the Indian Contract Act, 1872:
32.Ld. Counsel for the Accused has in the alternative submitted that even if the case of the Complainant is considered, nature of transaction is illegal and is thus, hit by Section 23 of the Indian Contract Act, 1872. It is trite law that Section 138 NI Act applies only to a debt or liability, which is legally enforceable.
33.In Words and Phrases Vol. 14A, the term "enforceable" is defined as "not invalid as contrary to public policy because bargaining contrary to the law as venue, word "enforceable" not necessarily implying actual force or coercion but meaning to be Page 17 of 22 Jitender Kumar v. Saurabh Chopra CC No.11349/2017 executed and to cause to take effect." Explanation to Section 138 clearly says that for the purpose of the section "debt or other liability" means a legally enforceable debt or other liability. Hence, only a claim arising out of an enforceable debt or other liability will constitute an offence under Section 138 of the Act.
34.In the present case, the Complainant has in his complaint stated that he had approached the Accused in May, 2014 and asked him if he could help him in the settlement of his credit card bill and for this the Accused had asked for a liaising fee of Rs. 1,07,000/- and had assured that the same would be settled. As per the Complainant, the Complainant paid the said amount but the Accused did not get the settlement done. Thereafter, the Complainant approached Uttam Nagar Police Station to lodge his complaint and in this process the Accused came to the police station and issued a letter and the cheque in question to the Complainant. In the cross examination of the Complainant dated 10.05.2018, the Complainant has admitted that he was aware since the beginning that the Accused was neither the employee nor did he have any connection with HDFC Bank. He has further stated that "the Accused assured me that he had some setting with HDFC Bank and he can help me out". Upon a specific question being put to the Complainant in the cross-examination as to the meaning of the term 'settlement of bank account' as was mentioned in the complaint, the Complainant has stated that he does not know the meaning of settlement of bank account and the said term had been written by his counsel. Further he has admitted that "it is correct that after Rs. 1,07,000/- I need Page 18 of 22 Jitender Kumar v. Saurabh Chopra CC No.11349/2017 not to pay any amount to HDFC Bank qua my credit card account" and that "it is correct that I approached the Accused to save myself from paying Rs. 3,10,000/- to the bank as I willfully did not want to pay the amount of Rs. 3,10,000/- due, to be paid to the bank." Accordingly, it appears that the Complainant had availed the services of the Accused for his credit card debt settlement, against payment of fees. While debt settlement in itself is not illegal in India, meaning thereby that the object of the transaction was not illegal, however, the same has to be done through authorized agencies. However, here, as per the Complainant himself, he has paid an amount of Rs. 1,07,000/- to the Accused, who he knew, was not an official or employee of the HDFC Bank or any person having an official connection with HDFC Bank, for the complete settlement of his credit card bill without payment of the due liability of Rs. 3,10,000/-. Further, here it is not the case that the Accused represented himself to be an authorized agent of the bank and approached the Complainant with a debt settlement offer; but is a situation where the Complainant himself approached the Accused and requested for help, knowing that the Accused is neither the employee nor having any connection with HDFC Bank, since the beginning of the transaction. It is also noted that in the cross-examination of the Complainant, he has stated that the Accused had told him that the Accused "had some setting with the HDFC Bank" and hence could get his credit card bills settled. Hence, the fees was given to the Accused on the basis of his assurance of having "a setting with HDFC Bank". Accordingly, the term liaising fee used in the complaint Page 19 of 22 Jitender Kumar v. Saurabh Chopra CC No.11349/2017 appears to be an euphemism for money given by the Complainant for the settlement of his credit card bill by illegal means. The Hon'ble High Court of Delhi in Virender Singh v. Lakhmi Narayana, 2006 SCC Online DEL 1328 has noted that if the consideration or object of agreement is unlawful, illegal or against the public policy, the agreement itself is void and legally enforceable and hence any cheque given in discharge of a liability under such a void agreement cannot be said to be issued and discharged to a legally enforceable debt or liability.
35.Section 23 of the Indian Contract Act also states that agreements having an unlawful consideration or object are void. In the present case, the sole purpose of the liaising fees was to either annul the total liability of payment of the credit card bill or to obtain a sizable reduction of the credit card bill amount, not on the basis of any intrinsic merit, lawful consideration or legal negotiation through an authorized agency, but on the basis of setting of the Accused with HDFC Bank. Such agreement appears to be void and of no legal consequence by virtue of Section 23 of the Indian Contract Act. It is also to be noted that there is a well settled principle "in pari delicito portior est conditio defendantis", which embodies the principle: "the Courts will refuse to enforce an illegal agreement at the instance of a person who is himself a party to a illegality or fraud".
36.In the present case, the Complainant has also submitted that the cheque was handed over in the police station, and hence it is a cheque issued in pursuance of the settlement however it is noted that there is no FIR or copy of complaint that has Page 20 of 22 Jitender Kumar v. Saurabh Chopra CC No.11349/2017 been brought on record even mentioned by the Complainant and Ex.C-1, it is the hand written letter, does not have any signature or stamp of the police official. Neither has the police official been called to prove the said settlement. Further while the Complainant in his cross-examination has stated that 3-4 persons were at the time of the execution of the said letter. He has not examined or even named the said persons. Additionally, while in the cross-examination, the Complainant has stated that the signature at point C is of a police official; he has stated that he is not sure of the said fact and more particularly, also stated that the signature was not tendered in his presence.
37.Accordingly, this is not case where the Accused has after commission of an offence entered into a settlement with the Complainant for compounding of an offence and the cheque given therein has been dishonored. In the present case, it is a cheque given as a refund of consideration given in an illegal transaction and the restitution of the same cannot be considered as legally enforceable debt or liability. Hence, the Accused has raised a probable doubt, as to the existence of a legally enforceable debt and the ingredients of Section 138 NI Act are not fully proved.
38.In these circumstances and in view of the above detailed discussion, this court is of the considered opinion that the Accused has successfully rebutted the presumption under Section 139 of Negotiable Instruments Act, 1881 in favour of the Complainant and ingredients of Section 138 of Negotiable Instruments Act, 1881 have not been fully proved. Therefore, Accused is held not guilty and is acquitted Page 21 of 22 Jitender Kumar v. Saurabh Chopra CC No.11349/2017 of the offence punishable under Section 138 of the Negotiable Instrument Act, 1881.
ORDER: ACQUITTAL
Announced in Open Court (Twinkle Chawla)
MM (NI-Act 02), South East
Saket Court, New Delhi
Note: This judgment contains 22 pages and each page has been signed by me.
(Twinkle Chawla) MM (NI-Act 02), South East Saket Court, New Delhi Page 22 of 22