Delhi District Court
Nazim vs . Mohammad Salim Khan on 31 August, 2021
IN THE COURT OF SH. FAHAD UDDIN, MM-04, SHAHDARA DISTRICT,
KARKARDOOMA COURT, DELHI.
NAZIM VS. MOHAMMAD SALIM KHAN
Case No. : 3314/17
PS : Jafrabad
U/s : 138 N.I Act
a) Registration no. of the case : 3314/17
b) Name & address of the : Nazim
complainant S/o Nanne Miya
R/o H.No. E=437, Street No. 20,
Old Mustafabad,
Delhi- 110094.
c) Name & address of accused : Mohammad Salim Khan
S/o Mohd. Amin Khan
R/o G-31, Gali No. 15,
Old Mustafabad
Delhi- 110094.
Also at G-21, Gali No. 15,
Old Mustafabad
Delhi- 110094.
Also at G-121, Gali No. 15,
Old Mustafabad
Delhi- 110094.
d) Date of Commission of offence : 12.05.2017
e) Offence complained off : U/s 138 N.I Act
f) Plea of the accused : Pleaded not guilty/claimed trial
g) Final Order : Convicted
h) Date of such order : 31.08.2021
Date of Institution : 22.07.2017
Final Arguments heard on : 16.03.2021
Case No. 3314/17 Nazim Vs. Salim Khan 1
Judgment Pronounced on : 31.08.2021
Judgment
1. Vide this judgment/order , I shall dispose off the present case filed by the
complainant namely (Nazim) against the accused (Mohammad Salim Khan) for the
offence U/s 138 NI Act. Brief facts necessary for the disposal of the present case may
be described as under:-
2. Facts of the Case:
It is the case of the complainant (Nazim) that the complainant and accused (Mohammad
Salim Khan) are resident of Old Mustafabad, Delhi for last many years. The accused
came into contact of the father of the complainant namely Nannhe Miya and the
accused was sharing very friendly relations with the complainant and his father. After
making friendly relations with the father of the complainant, the accused enticed the
father of the complainant with the proposal that if the father of the complainant namely
Nanhe Miya gives to the accused some money, the accused will use that money in his
business and the accused will return the principal amount alongwith proportionate profit
earned by the accused. The accused also ensured and assured the father of the
complainant that his principal amount would remain intact in case of loss and profit.
Thus, being assured about the security of the principal amount, the father of the
complainant decided to lend money to the accused on the basis of this understanding.
The accused started getting small amount and the accused returned the proportionate
profit within 15 days. This happened 2-3 times and in this fashion the accused won the
trust and faith of the father of the complainant. It is further stated by the complainant in
his complaint that in the year 2016, the accused obtained money from the father of the
complainant to the tune of Rs 5,35,000/- and also obtained Rs 4,80,000/- from the
complainant on the same terms and conditions. The accused approached the
complainant and persuaded him to lend to the accused and the accused also enticed
the complainant by showing rosy pictures of getting proportionate share in profit while
principal amount remaining secured. The accused told to the complainant that the
Case No. 3314/17 Nazim Vs. Salim Khan 2
accused had come to request his father but since his father was not available in the
country, therefore the accused thought to approach the complainant.
The complainant thus gave Rs 4,81,000/- to the accused in the year 2016 and the father
of the complainant gave Rs 5,34,000/- to the accused during the same year. As per
understanding , the accused also returned proportionate share in profits ocassionally. It
is stated in the complaint that the accused retained principal amount with the promise
that whenever, the accused will use the principal amount, the accused will pay the
proportionate share of profit. Further to win the confidence of the complainant and his
father, the accused also returned small amount of money by way of proportionate share
in the profits belonging to them. It is stated by the complainant in the complaint that
there are hand written calculations about share of the complainant in the profit earned
by the accused which the accused cannot deny. It is further stated by the complainant
that in the second week of the month of January 2017, the complainant and his father
asked the accused to return the principal amount and the accused agreed to return the
same. The accused issued three cheques for a total sum of Rs 2,20,000/- (i.e. Rs
1,10,000/- + Rs 30,000/-+ Rs 80,000/-) to the complainant which were cleared by the
accused on presentation. The said cheques were used by the complainant in the
payment to his clients.
3. It is the case of the complainant that the accused also assured the father of the
complainant that he would issue cheques to the father of the complainant for his amount
later. However, the accused issued a cheque for Rs 2,60,000/- dated 15.12.2017
bearing no. 032227 drawn on Bank of India, Yamuna Vihar Branch, Delhi in favour of
the complainant to clear his remaining payment but the same has been dishonoured by
the accused by stopping the payment three times i.e. on 17.02.2017, 24.03.2017 &
11.05.2017. The dishonor memo were issued on 18.02.2017, 27.03.2017 & 12.05.2017
respectively. It is stated that after every dishonor, the complainant contacted the
accused and the accused assured about payment but on each time the cheque was
disnhoured on presentation. The complainant was also in touch with the accused
telephonically as well as otherwise and the accused never denied his liability towards
Case No. 3314/17 Nazim Vs. Salim Khan 3
the complainant and his father in private. Despite this , the accused kept framing stories
and delayed the payment. The delaying tactics of the accused are never ending and the
complainant was thus forced to follow process of law by the conduct of the accused. It is
mentioned in the complainant that the cheques in question were issued against
admitted liability. The complainant also issued a legal demand notice dated 08.06.2017
to the accused to make payment of the cheque amount of Rs 2,60,000/- which was
dishonored on 17.02.2017, 24.03.2017 & 11.05.2017. The said legal demand notice
was delivered through speed post on 09.06.2017 at the addresses of the accused.
However, still the accused failed to make payment to the complainant of the cheque
amount and hence the present complaint case has been filed by the complainant
against the accused U/s 138 NI Act in the said background.
4. Framing of Notice:
The complainant led pre-summoning evidence by way of affidavit and after taking
cognizance of the offence U/s 138 NI Act, the accused was summoned by the Court
vide order dated 16.09.2017. The accused entered appearance with his Counsel and
after compliance of provisions of section 207 Cr.P.C, notice U/s 251 Cr.P.C for the
offence U/s 138 NI Act was framed against the accused vide order dated 16.07.2018. At
the time of notice, the accused pleaded not guilty and claimed trial. In his statement of
defence, the accused admitted his signatures on the cheque in question and that it was
given to the complainant. The accused also stated that he had received the legal
demand notice issued by the complainant but he did not reply the same. The accused
stated that the cheque in question was given in blank signed condition to the
complainant for security as they had business relations. The cheques in question was
given at the start of the business relations. The accused stated that he is not liable for
cheque amount mentioned in the cheque in question.
5. Complainant Evidence:
To prove his case against the accused, the complainant got examined only one witness
i.e. CW-1/Complainant himself namely Nazim. The complainant adopted his pre-
Case No. 3314/17 Nazim Vs. Salim Khan 4
summoning evidence led by way of affidavit which is Ex. CW-1/A on court record. In his
evidence by way of affidavit the complainant relied on the following documents Ex. CW-
1/1 to Ex. CW-1/8.
(I) Copy of hand written calculation is Ex. CW-1/1 (OSR).
(II) Original cheque bearing no. 032227 dated 15.02.2017 for a sum of Rs
2,60,000/- as Ex. CW-1/2.
(III) Three return memos dated 18.02.2017, 27.03.2017 & 12.05.2017 for cheque
no. 032227 for Rs 2,60,000/- are Ex. CW-1/3, Ex. CW-1/4 & Ex. CW-1/5.
(IV) Legal demand notice issued on behalf of the complainant to the accused is
Ex. CW-1/6.
(V) Postal receipts dated 08.06.2017 are Ex. CW-1/7 (Colly).
(VI) Computerized tracking report for delivery of notice to the accused are Ex.
CW-1/8 (Colly).
In his evidence by way of affidavit Ex. CW-1/A, the complainant Nazim reiterated
and reaffirmed all the facts as mentioned in the complainant and described in the
paragraphs mentioned above on oath and as such the same are not being repeated
herein for the sake of brevity.
6. However, in his cross examination, the complainant/CW-1 stated that he was
doing the business of garments. He is income tax and sales tax assesse since 2017.
CW-1 stated that he was not assesse of income tax in the year 2016. CW-1 stated that
his father does not have any business with the accused and he did not know the terms
and conditions of the business of accused with his father. CW-1 stated that as per para
no. 3 of his pre-summoning evidence, he did not know how much amount was received
by the accused from his father and profit returned to his father. CW-1 further stated that
there was no written agreement prepared between his father and the accused. He
stated that written receipt is available with his father for the amount taken by the
accused from his father. The said receipt is already on court record as Ex. CW-1/1
(OSR). CW-1 stated that it is correct that the receipt Ex. CW-1/1 does not bear the
signatures of the accused but is in handwriting of the accused. CW-1 further stated that
he did not take any receipt from the accused regarding the amount of Rs 4,80,000/- and
Rs 4,81,000/-. CW-1 stated that he got opened his bank account in December 2017 and
he cannot say about the confirmed date. He stated that there was no agreement
Case No. 3314/17 Nazim Vs. Salim Khan 5
executed regarding the amount of Rs 5,35,000/- and Rs 5,34,000/- by his father. His
father having bank account in the year 2016. CW-1 further stated that there was no
agreement regarding profit sharing between his father and the accused since there was
no business relation between his father and the accused. In his further cross
examination, CW-1 stated that the date and month regarding the disbursement amount
is not mentioned in notice, complaint and in his pre-summoning evidence. CW-1 denied
the suggestion that no transaction ever took place with accused or that the accused did
not give the cheque in question to him or that the cheque in question was given to his
father or that the cheque in question has been misused by him. He further denied the
suggestion that there were no pending dues towards his father by the accused or that
there is no liability of the accused towards him. No other material fact was deposed to
by CW-1/Complainant and after conclusion of cross examination of CW-1, complainant
evidence was closed on 03.11.2018 and the matter was fixed for recording statement of
accused U/s 313 Cr.P.C.
7. Statement of Accused:
On 25.02.2019, the statement of the accused was recorded U/s 313 Cr.P.C whereby all
the incriminating evidence was put to the accused and his answers were recorded. In
his statement recorded U/s 313 Cr.P.C, the accused stated that he did know the
complainant but he knew father of the complainant as he used to work for him. The
accused stated that he had issued the cheque in question after signing the same and
filling up amount to father of the complainant for a business transaction. The accused
stated that he had received the legal notice issued on behalf of the complainant but he
did not reply to the same. The accused stated that the present case is a false case and
he has been falsely implicated in the present case. He reiterated that he did not know
the complainant and had no transaction with the complainant. The cheque in question
was not issued to the complainant. The cheque has been misused and he is not liable
for the cheque amount. The accused wished to lead defence evidence to disprove the
case of the complainant.
Case No. 3314/17 Nazim Vs. Salim Khan 6
8. Defence Evidence:
To disprove the case of the complainant, the accused got examined two witness DW-1
and DW-2. DW-1 is Mohammad Salim Khan/accused himself, who stated in his
examination in chief conducted on 01.08.2019 that he had business deal with the father
of complainant namely Nanhe R/o E-437, Gali no. 20, Old Mustafabad, Delhi-94. He
stated that he took goods for a sum of Rs 2,60,000/- from Nanhe. He received Rs
2,60,000/- from Nanhe and also gave a security cheque to him. After selling of goods,
the accused went to Nanhe to return the amount. The accused stated that he returned
the amount of Rs 2,60,000/- from Nanhe and demanded the cheque of Bank of India
bearing no. 32227. The said Nanhe replied that the abovesaid cheque was in custody of
his son namely Nazim and he was out of station and Nanhe promised to return the
same within 2-3 days. But the said Nanhe did not return the cheque by making false
excuses on one pretext or another. The accused stated that cheque in question has
been misused by the complainant.
9. In his cross examination, the accused/DW-1 stated that he knew complainant
since end of 2016 when the accused went to meet the father of complainant to discuss
regarding one plot which was for sale as the father of complainant used to purchase
properties. The accused stated that he is a scrap dealer. He stated that he did not
remember the date when he took Rs 2,60,000/- from the father of accused as it was
during the period of demonetization. The accused stated that he had not spoken about
any particular date but had promised to return the money as soon as his stock of scrap
was sold. The accused further stated in his cross examination that he returned the sum
of Rs 2,60,000/- to the father of complainant on 05.02.2017. He stated that he did not
take any receiving from the father of complainant when he returned Rs 2,60,000/-. The
accused stated that one Irshad had accompanied him when he returned the amount.
The accused stated that it is correct that no written receipt or agreement was executed
at the time of taking and returning of money. In his cross examination, the accused
further stated that he opened his account in January 2017. He stated that exact date he
did not remember. It may be 14 or 16. He stated that he did not remember the date but
Case No. 3314/17 Nazim Vs. Salim Khan 7
cheque book was received within a week of opening of account. The witness/DW-1 was
also confronted with Ex. CW-1/1, who stated that Ex. CW-1/1 is recording of the
inventory stock as to how much goods had been received and how much goods had
been sold. He stated that it is correct that the figures and signatures in Ex. CW-1/1
are in his hand-writing. DW-1 denied the suggestion that Ex. CW-1/1 was with respect
to account settlement with complainant or that he had agreed that Rs 2,60,000/- is
balance. DW-1 further denied the suggestion that he had issued the cheque in question
to the complainant after settlement of accounts or that he was dishonestly raising false
defence. DW-1/accused further denied that he had not given any cheque to father of
complainant as security or that he had issued the cheque in question in discharge of
liability towards the complainant. No other material fact was deposed to by DW-
1/accused and after conclusion of cross examination, DW-1/accused was discharged.
Another witness examined on behalf of the accused to disprove the case of the
complainant is DW-2 namely Irshad who tendered his evidence by way of affidavit which
is Ex. DW-2/A. In his evidence by way of affidavit, DW-2 stated on oath that he is known
to accused, complainant as well as father of complainant namely Nanhe. DW-2 stated
that on 05.02.2017, he accompanied accused and went to the house of Nanhe in the
morning. The accused Mohd. Salim gave Rs 2,60,000/- to Nanhe and demanded his
cheque of Bank of India. DW-2 stated that he came to know during conversation
between the accused & Nanhe that the accused Mohd. Salim was having business
relations with Nanhe and the accused had given a signed blank cheque drawn on Bank
of India bearing no. 032227 as a security to Nanhe. DW-2 stated in his affidavit that
accused Mohd. Salim had demanded his cheque from Nanhe after giving Rs 2,60,000/-
to Nanhe. Nanhe said that the abovesaid cheque was in the custody of his son namely
Nazim and promised that he will return the same within 2-3 days.
In his cross examination on 06.02.2021, DW-2 Irshad stated that he knew salim as he
was his Mausa. In the year 2017 the accused was doing the business of property
dealing as well as scrap. DW-2 stated that he was not having any relationship with the
complainant, however he knew the complainant as he was residing in the same vicinity.
He stated that he did not know which type of work the complainant was doing in the
Case No. 3314/17 Nazim Vs. Salim Khan 8
year 2017. DW-2 further stated that he knew the father of the complainant as he was
also residing in the same vicinity but he had no relationship with the father of the
complainant. He stated that he did not know with whom the accused was having
business relationship. DW-2 further stated that he had visited the complainants house
only once till today. The accused had never disclosed him that he was having business
relationship with the complainant and he cannot tell what was the monthly income of the
accused in the year 2017. DW-2 further stated that it is correct that accused had not told
him at any point of time that he had already made payment of Rs 2,20,000/- to Nazim.
He stated that accused had not told him about taking of money from
Nazim/complainant. He stated that the accused had not informed in advance about
visiting the house of the complainant on 05.02.2017. The accused had called him on
that day and requested to accompany him to the complainants house. In his further
cross examination , DW-2 stated that the accused had taken cash of Rs 2,60,000/- from
his house at the time of going/visiting the complainant's house on 05.02.2017. He
stated that the accused was having cash of Rs 2,60,000/- in the form of Rs 1,000/-
notes. DW-2 stated that they reached at the house of the complainant at around 10-
10:15 AM. DW-2 denied the suggestion that he had not visited the house of Nanhe
alongwith the accused for the purpose of returning the money. DW-2 denied that he was
having business dealings with Nazim. DW-2 denied that since their business did not go
well, for this reason he is deposing falsely against Nazim. He stated that the accused
had not told him about the cheque which he had allegedly handed over to the
complainant. He stated that he came to know from conversation between Nanhe and
the accused. DW-2 stated that it is correct that the accused was having business
dealing with the complainant. No other material fact was deposed to by DW-2 Irshad
and after conclusion of cross examination, DW-2 was discharged and DE was closed
vide separate statement of the accused recorded on 06.02.21.
10. Final Arguments:
Thereafter final arguments were addressed by both the Counsels for the parties and
they also filed written arguments for the parties which are on record. In the final
Case No. 3314/17 Nazim Vs. Salim Khan 9
arguments addressed by Ld. Counsel for the complainant, Ld. Counsel for the
complainant stated that in the facts and circumstances of the case and on the basis of
evidence led by the parties, the complainant has been able to prove/established (a) that
the accused had issued cheque in question to discharge his liability, (b) the cheque was
dishonoured and the signature are admitted by the accused, (c) the statutory legal
notice was served upon the accused but he had not replied the same. The complainant
has proved his case against the accused without any doubt and hence the accused may
be convicted for the offence punishable U/s 138 NI Act and be punished in accordance
with law. On the other hand, Ld. Counsel for the accused submitted in the final
arguments that the accused had dealing with the father of the complainant and he had
returned Rs 2,60,000/- to the father of the complainant in the presence of DW-2 (Irshad)
on 05.02.2017. The complainant has no authority to file the present complaint case as
the cheque in question is in the name of Nazim Traders and the alleged complainant
has no concern with Nazim Traders. Thus, no case is made out against the accused
and the accused is entitled to be acquitted in the present case. Both the parties also
filed written arguments in support of their case as well relevant Judgments. Same are
also gone through.
11. Findings:
After hearing submissions of both the parties i.e. complainant as well as accused and
the evidence led by both the parties (oral as well as documentary), the findings of this
court are as under:-
At the cost of repetition, it may be said that it is the case of the complainant (Nazim)
that the complainant and accused (Mohammad Salim Khan) are resident of Old
Mustafabad, Delhi for last many years. The accused came into contact of the father of
the complainant namely Nannhe Miya and the accused was sharing very friendly
relations with the complainant and his father. After making friendly relations with the
father of the complainant, the accused enticed the father of the complainant with the
proposal that if the father of the complainant namely Nanhe Miya gives to the accused
some money, the accused will use that money in his business and the accused will
Case No. 3314/17 Nazim Vs. Salim Khan 10
return the principal amount alongwith proportionate profit earned by the accused. The
accused also ensured and assured the father of the complainant that his principal
amount would remain intact in case of loss and profit. Thus, being assured about the
security of the principal amount, the father of the complainant decided to lend money to
the accused on the basis of this understanding. The accused started getting small
amount and the accused returned the proportionate profit within 15 days. This
happened 2-3 times and in this fashion the accused won the trust and faith of the father
of the complainant. It is further stated by the complainant in his complaint that in the
year 2016, the accused obtained money from the father of the complainant to the tune
of Rs 5,35,000/- and also obtained Rs 4,80,000/- from the complainant on the same
terms and conditions. The accused approached the complainant and persuaded him to
lend to the accused and the accused also enticed the complainant by showing rosy
pictures of getting proportionate share in profit while principal amount remaining
secured. The accused told to the complainant that the accused had come to request his
father but since his father was not available in the country, therefore the accused
thought to approach the complainant.
12. The complainant thus gave Rs 4,81,000/- to the accused in the year 2016 and
the father of the complainant gave Rs 5,34,000/- to the accused during the same year.
As per understanding , the accused also returned proportionate share in profits. It is
stated in the complaint that the accused retained principal amount with the promise that
whenever, the accused will use the principal amount, the accused will pay the
proportionate share of profit. Further to win the confidence of the complainant and his
father, the accused also returned small amount of money by way of proportionate share
in the profits belonging to them. It is stated by the complainant in the complaint that
there are hand written calculations about share of the complainant in the profit earned
by the accused which the accused cannot deny. It is further stated by the complainant
that in the second week of the month of January 2017, the complainant and his father
asked the accused to return the principal amount and the accused agreed to return the
same. The accused issued three cheques for a total sum of Rs 2,20,000/- (i.e. Rs
Case No. 3314/17 Nazim Vs. Salim Khan 11
1,10,000/- + Rs 30,000/-+ Rs 80,000/-) to the complainant which were cleared by the
accused on presentation. The said cheques were used by the complainant in the
payment to his clients.
13. It is the case of the complainant that the accused also assured the father of the
complainant that he would issue cheques to the father of the complainant for his amount
later. However, the accused issued a cheque for Rs 2,60,000/- dated 15.02.2017
bearing no. 032227 drawn on Bank of India, Yamuna Vihar Branch, Delhi in favour of
the complainant to clear his remaining payment but the same has been dishonoured by
the accused by stopping the payment three times i.e. on 17.02.2017, 24.03.2017 &
11.05.2017. The dishonor memo were issued on 18.02.2017, 27.03.2017 & 12.05.2017
respectively. It is stated that after every dishonor, the complainant contacted the
accused and the accused assured about payment but on each time the cheque was
disnhoured on presentation. The complainant was also in touch with the accused
telephonically as well as otherwise and the accused never denied his liability towards
the complainant and his father in private. Despite this , the accused kept framing stories
and delayed the payment. The delaying tactics of the accused are never ending and the
complainant was thus forced to follow process of law by the conduct of the accused. It is
mentioned in the complainant that the cheques in question were issued against
admitted liability. The complainant also issued a legal demand notice dated 08.06.2017
to the accused to make payment of the cheque amount of Rs 2,60,000/- which was
dishonored on 17.02.2017, 24.03.2017 & 11.05.2017. The said legal demand notice
was delivered through speed post on 09.06.2017 at the addresses of the accused.
However, still the accused failed to make payment to the complainant of the cheque
amount and hence the present complaint case has been filed by the complainant
against the accused U/s 138 NI Act in the said background.
14. At this stage for reference, Section 138 NI Act may be reproduced as under:-
138. Dishonour of cheque for insufficiency etc. of funds in the
account.-Where any cheque drawn by a person on an account
Case No. 3314/17 Nazim Vs. Salim Khan 12
maintained by him with a banker for payment of any amount of money to
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 provision 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-
(a) 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;
(b) 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 cheque [within thirty days] of
the receipt of information by him from the bank regarding the return of
the cheque as unpaid; and
(c) the 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.
Section 142 N.I Act 1881 may also be reproduced as under:-
142. Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974)- (a) no court shall take cognizance of any
offence punishable under section 138 except upon a complaint, in writing,
Case No. 3314/17 Nazim Vs. Salim Khan 13
made by the payee or, as the case may be, the holder in due course of the
cheque;
(b) such complaint is made within one month of the date on which the
cause of action arises under clause (c) of the proviso to section 138;
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try any offence punishable under section
138."
15. The object underlying Section 138 of the Negotiable Instruments Act is to
promote and inculcate faith in the efficacy of banking system and its operations giving
credibility to Negotiable Instruments in business transactions and to create an
atmosphere of faith and reliance by discouraging people from dishonouring their
commitments which are implicit when they pay their dues through cheques. The
provision was intended to punish those unscrupulous persons who issued cheques for
discharging their liabilities without really intending to honour the promise that goes with
the drawing up of such a negotiable instrument.
Following acts constitute an offence under section 138:-
(i) Drawing of the cheque ;
(ii) Presentation of the cheque to Bank,
(iii) Returning the cheque unpaid by the drawee Bank,
(iv) Giving notice in writing to the drawer of the cheque demanding
payment of the cheque amount, and,
(v) Failure of the drawer to make payment within 15 days of the receipt
of the notice.
16. In the case of "O.P. Chirania vs Dir. Of Lotteries And Deputy ... on 12 March,
1998"1 , the Hon'ble Delhi High Court observed in para no. 9 as under:-
9. It is to be noticed that the mere issuance of a cheque is not an offence.
The offence is committed and cause of action under section 138 read with
1 Equivalent citations: 1998 IVAD Delhi 197, 1998 (46) DRJ 537.
Case No. 3314/17 Nazim Vs. Salim Khan 14
section 142 arises when in spite of the demand notice by the payee issued
within fifteen days of the receipt of the intimation by him from the bank
regarding Dishonor of the cheque on account of the reason of insufficiency
of funds in the account of the drawer, payment is not made by the drawer
to the payee within the period stipulated in section 138(c), i.e, within a
period of fifteen days of the receipt of the said notice by the drawer. From
the expiry of these fifteen days complaint is to be made within one month.
In other words, section 138 of the Act provides an opportunity to the
drawer of a Dishonored cheque to pay within fifteen days of the receipt of
a written notice sent by or on behalf of the drawee/ payee informing him
that the cheques had been Dishonored. If payment is still not made by the
drawer to the drawee within fifteen days of the receipt of the notice he
commits an offence giving rise to a cause of action to the drawee to file a
complaint before the court of a Metropolitan Magistrate within thirty days
thereafter. But a drawee after giving notice of Dishonor of the cheque to
the drawer may not file a complaint within one month of the expiry of
fifteen days of the receipt of such notice by the drawer. The payee can
again present the cheque to the bank a second time and in case of the
same being returned unpaid, he can once again give a notice to the
drawer for payment. In the event of the drawer not making the payment
within the prescribed period of time the payee can file a complaint, or may
not file a complaint and try again to recover the amount by presenting the
cheque a third time, and so on and so forth provided this is done within the
period of the validity of the cheque or within six months of the date on
which the cheque is drawn, whichever is earlier. Chapter XVII of the Act
does not preclude the creation of successive causes of action on the
basis of one and the same cheque. After completion of one cause of
action the payee or holder in due course can have a fresh cause of
action in accordance with law so long as the cheque remains unpaid
and a complaint is filed within the period prescribed on the basis of
Case No. 3314/17 Nazim Vs. Salim Khan 15
the fresh cause of action so created. .
Further in the case of "Mallappa Sangappa Desai vs Laxmanappa
Basappa Whoti " on 20 August, 1994., the Hon'ble Karnataka High Court
pleased to observe that :- " Every time a cheque is presented and it is
returned for insufficiency of funds the payee or the holder gets a cause of
action to initiate the necessary steps for prosecuting the drawer by issue
of notice. It is left to the payee to decide whether he would make use of
the cause which arises when the cheque is returned with endorsement of
insufficiency of funds and initiate steps which may ultimately result in
prosecution or to wait for some time to enable the drawer to arrange for
sufficient funds and represent the cheque again if the period of validity of
the cheque is not over."
17. Now coming to the present case, in brief the present case has been filed by the
complainant/Nazim against the accused Mohd. Salim Khan for dishonor of one cheque
bearing no. 032227 dated 15.02.2017 for a sum of Rs 2,60,000/- which was returned
unpaid/dishonoured vide return memo dated 18.02.2017, 27.03.2017 & 12.05.2017 and
the accused even after issuance of legal notice on 08.06.2017 failed to make payment
to the complainant. As per the complainant , the abovesaid cheque was issued against
admitted liability as there were money transactions between the complainant, his father
and the accused in the year 2016 and 2017.
18. To prove his case against the accused the complainant got examined only one
witness i.e. CW-1/Complainant Nazim who tendered his evidence by way of affidavit
which is Ex. CW-1/A on court record. In his evidence by way of affidavit, the
complainant reiterated & reaffirmed all the facts relating to the case on oath and
mentioned in above paragraphs and as such the same are not being repeated herein for
the sake of brevity.
19. However, in his cross-examination, CW-1 stated that he was doing the business
Case No. 3314/17 Nazim Vs. Salim Khan 16
of garments. In his cross examination, CW-1 stated that he did not know the terms and
conditions of the business of accused with his father. CW-1 stated that as per para no. 3
of his pre-summoning evidence, he did not know how much amount was received by
accused from his father and profit returned to his father. He stated that there was no
written agreement prepared between his father and accused. However a written receipt
is available with his father for the amount taken by the accused from his father. The said
receipt is on court record as Ex. CW-1/1 (OSR). CW-1 stated that it is correct that the
receipt Ex. CW-1/1 does not bear the signature of accused but the same is in
handwriting of accused. In his further cross examination, CW-1/Complainant stated that
he did not take any receipt from the accused regarding the amount i.e. Rs 4,80,000/-
and Rs 4,81,000/-. He stated that he got opened his bank account in December 2017
and he cannot say about the confirmed date. CW-1 further stated that there was no
agreement executed regarding the amount of Rs 5,35,000/- and Rs 5,34,000/- by his
father. His father was having bank account in the year 2016. He stated that there was
no agreement regarding profit sharing between his father and the accused since there
was no business relation between his father and accused. CW-1 admitted in his cross
examination that the date and month regarding disbursement of amount is not
mentioned in notice, complaint and in his pre-summoning evidence. He denied the
suggestion that no transaction ever took place with the accused or that the accused did
not give the cheque in question to him or that the cheque in question was given to his
father. CW-1 further denied the suggestion that the cheque in question has been
misused by him or that there were no pending dues towards his father by the accused
or that there was no liability of accused towards him.
20. To prove his case against the accused, CW-1/Complainant has also relied upon
documentary evidence i.e. Ex. CW-1/1 to Ex. CW-1/8. Hand Written calculations in the
alleged hand-writing of accused is Ex. CW-1/1 (OSR), Original cheque bearing no,
032227 dated 15.02.2017 for Rs 2,60,000/- in favour of complainant Nazim Traders is
Ex. CW-1/2, return memo dated 18.02.2017, 27.03.2017 & 12.05.2017 are Ex. CW-1/3 ,
EX. Cw-1/4 & Ex. CW-1/5 respectively. Legal demand notice issued to the accused on
Case No. 3314/17 Nazim Vs. Salim Khan 17
behalf of the complainant regarding dishonor of cheque of Rs 2,60,000/- is Ex. CW-1/6,
Postal receipts dated 08.06.2017 for issuance of legal demand notice to the accused is
Ex. CW-1/7 and computerized tracking reports for delivery of legal notice to the accused
are Ex. CW-1/8 (Colly).
21. On the other hand, it is the case of the accused as per his statement of defence
made at the time of framing of notice U/s 251 Cr.P.C that the cheque in question was
given in blank signed condition to the complainant for security as they had business
relations. The cheque in question was given at the start of business relations and he is
not liable for cheque amount as mentioned in the cheque in question. However, in his
statement U/s 313 Cr.P.C, the accused stated that he did not know the complainant but
he knew father of the complainant as he used to work for him. The accused stated that
he had issued the cheque in question after signing the same and filling up amount to
father of the complainant for a business transaction. He stated that he had received
legal notice issued on behalf of the complainant but he did not reply to the same. He
has been falsely implicated in the present case. He did not know the complainant nor
had any transaction with the complainant. The cheque in question was not issued to the
complainant and the cheque in question has been misused and he is not liable for the
cheque amount.
22. To disprove the case of the complainant, the accused got examined two
witnesses i.e. DW-1 and DW-2. DW-1 is Mohd. Salim Khan/accused himself who stated
in his examination in chief that he had business deal with the father of complainant
namely Nanhe. The accused had taken goods for a sum of Rs 2,60,000/- from Nanhe.
He received Rs 2,60,000/- from Nanhe and also gave a security chequeto him. After
selling of goods, the accused went to Nanhe to return the amount. He had returned the
amount of Rs 2,60,000/- from Nanhe and demanded the cheque of Bank of India
bearing no. 32227. The said Nanhe replied that the abovesaid cheque is in custody of
his son namely Nazim and he is out of station, he would return the same within 2-3
days. But the said Nanhe did not return the cheque by making false excuses on one
Case No. 3314/17 Nazim Vs. Salim Khan 18
pretext or another. The accused stated that the cheque in question has been misused
by the complainant.
23. In his cross examination, DW-1 stated that he knew the complainant since end of
2016 when he went to meet the father of complainant to discuss regarding one plot
which was for sale as the father of complainant used to purchase properties. The
accused stated that he did not remember as to when he took Rs 2,60,000/- from the
father of complainant as it was during the period of demonetization. The accused stated
that he had not spoken about any particular date but had promised to return the money
as soon as his stock of scrap was sold. The accused further stated that he returned the
sum of Rs 2,60,000/- to the father of the complainant on 05.02.2017. He stated that he
did not take any receiving from the father of complainant when he returned Rs
2,60,000/-. He stated that Irshad/DW-2 had accompanied him when he returned the
amount. DW-1 admitted that no written receipt or agreement was executed at the time
of taking and returning of money. The witness was also shown Ex. CW-1/1 and he
stated that Ex. CW-1/1 is recording of the inventory stock as to how much goods had
been received and how much good had been sold. DW-1 admitted that the figures
and signatures in Ex. CW-1/1 are in his handwriting. DW-1 denied the suggestion
that Ex. CW-1/1 was with respect to account settlement with complainant or that he had
agreed that Rs 2,60,000/- is balance. DW-1 further denied the suggestion that he had
issued the cheque in question to the complainant after settlement of accounts or that he
had not given any cheque to father of the complainant as security or that he had issued
the cheque in question in discharge of liability towards the complainant.
24. Another witness examined on behalf of the accused is DW-2 Irshad, who stated
in his examination in chief by way of affidavit i.e. Ex. DW-2/A that he was known to
accused, complainant and father of complainant. On 05.02.2017, he had accompanied
with accused to go to the house of Nanhe at his residence in the morning. The accused
Mohd. Saleem gave Rs 2,60,000/- to Nanhe and demanded his cheque of Bank of
India. DW-2 stated that he came to know during conversation between the accused and
Case No. 3314/17 Nazim Vs. Salim Khan 19
Nanhe that the accused Mohd. Saleem was having business relations with Nanhe and
accused had given a signed blank cheque of Bank of India bearing no. 032227 as
security to Nanhe. DW-2 stated that accused Mohd. Saleem demanded his cheque from
Nanhe after giving Rs 2,60,000/-. Nanhe said that the abovesaid cheque was in the
custody of his son namely Nazim and promised to return the same within 2-3 days.
25. In his cross examination, DW-2/Irshad stated that he knew Salim as he was his
Mausa. In the year 2017, the accused was doing business of property dealing as well as
scrap. He stated that he was not having any relationship with the complainant but he
knew complainant as he was residing in the same vicinity. He stated that he had visited
the complainants house only once. He admitted that the accused had not told him at
any point of time that he had already made payment of Rs 2,20,000/- to Nazim. He
further stated that accused had not told him about taking of money from Nazim. He
stated that on 05.02.2017, the accused had called him and requested to accompany
him to the complainants house. The accused had taken cash of Rs 2,60,000/- from
his house at the time of visiting the complainant's house on 05.02.2017. The
accused was having cash of Rs 2,60,000/- in the form of Rs 1,000/- notes. DW-2
stated that they reached at the house of complainant at around 10-10:15 AM. DW-2
denied the suggestion that he had not visited the house of Nanhe alongwith accused for
purpose of returning the money. DW-2 admitted that accused was having dealing
with the complainant.
26. It may be noted that in the case of " Uttam Ram v. Devinder Singh Hudan &
Anr." 2 , the Hon'ble Supreme Court of India pleased to observe that:-
A negotiable instrument including a cheque carries presumption of
consideration in terms of Section 118(a) and under Section 139 of the Act.
Sections 118(a) and 139 read as under:
"118. Presumptions as to negotiable instruments.- Until the contrary is
2CRIMINAL APPEAL NO. 1545 OF 2019 (ARISING OUT OF SLP (CRL) NO. 3452 OF
2019).
Case No. 3314/17 Nazim Vs. Salim Khan 20
proved, the following presumptions shall be made:-- (a) of consideration --
that every negotiable instrument was made or drawn for consideration, and
that every such instrument, when it has been accepted, indorsed,
negotiated or transferred, was accepted, indorsed, negotiated or
transferred for consideration;....
139. 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."
27. There is the mandate of presumption of consideration in terms of the provisions
of the Act. The onus shifts to the accused on proof of issuance of cheque to rebut the
presumption that the cheque was issued not for discharge of any debt or liability in
terms of Section 138 of the Act. The accused in a trial under Section 138 of the Act has
two options. He can either show that consideration and debt did not exist or that under
the particular circumstances of the case the non-existence of consideration and debt is
so probable that a prudent man ought to suppose that no consideration and debt
existed. To rebut the statutory presumptions an accused is not expected to prove his
defence beyond reasonable doubt as is expected of the complainant in a criminal trial.
The accused may adduce direct evidence to prove that the note 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 disprove
the non-existence of 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 bare denial of the passing of the 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 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
Case No. 3314/17 Nazim Vs. Salim Khan 21
prudent man would under the circumstances of the case, act upon the plea that they did
not exist. Apart from adducing direct evidence to prove that the note in question was not
supported by consideration or that he had not incurred any debt or liability, the accused
may also rely upon circumstantial evidence and if the circumstances so relied upon are
compelling, the burden may likewise shift again on to the complainant. The accused
may also rely upon presumptions of fact, for instance, those mentioned in Section 114
of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the
Act."
28. Section 139 of the Act is an example of a reverse onus clause that has been
included in furtherance of the legislative objective of improving the credibility of
negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy
in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is
a device to prevent undue delay in the course of litigation. However, it must be
remembered that the offence made punishable by Section 138 can be better described
as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil
wrong whose impact is usually confined to the private parties involved in commercial
transactions. In such a scenario, the test of proportionality should guide the construction
and interpretation of reverse onus clauses and the defendant-accused cannot be
expected to discharge an unduly high standard of proof."
29. Section 139 introduces an exception to the general rule as to the burden of proof
and shifts the onus on the accused. The presumption under Section 139 of the
Negotiable Instruments Act is a presumption of law, as distinguished from presumption
of facts. Presumptions are rules of evidence and do not conflict with the presumption of
innocence, which requires the prosecution to prove the case against the accused
beyond reasonable doubt. The obligation on the prosecution may be discharged with
the help of presumptions of law and presumptions of fact unless the accused adduces
evidence showing the reasonable possibility of the non-existence of the presumed fact
as held in Hiten P. Dalal [Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 :
Case No. 3314/17 Nazim Vs. Salim Khan 22
2001 SCC (Cri) 960] .
30. 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. 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."
31. Further in the case of "Vijay v. Laxman & Anr." [Criminal Appeal no. 261 of 2013
(arising out of SLP (Crl.) 6761 of 2010, decided on 07.02.2013], it was observed by the
Honb'le Supreme Court of India that :-
Inspite of the admitted signature of the respondent-accused on
the cheque, it was not available to the respondent-accused to deny the fact that he had not issued the cheque in favour of the complainant for once the signature on the cheque is admitted and the same had been returned on account of insufficient funds, the offence under section 138 of the Act will clearly be held to have been made out and it was not open for the respondent-accused to urge that although the cheque had been dishonoured , no offence under the Act is made out. Reliance placed by learned Counsel for the complainant -appellant on the authority of this Court in the matter of K.N Beena v. Muniyappan & Anr. 2001 (7) Scale 331 adds sufficient weight to the plea of the complainat-appellant that Case No. 3314/17 Nazim Vs. Salim Khan 23 the burden of proving the consideration for dishonor of the cheque is not on the complainant-appellant , but the burden of proving that a cheque had not been issued for discharge of a lawful debt or liability is on the accused and if he fails to discharge such burden, he is liable to be convicted for the offence under the Act.
32. Now, if the present case is seen in the light of the aforesaid observations made by the Hon'ble Supreme Court of India, this Court is of the view that the complainant has been able to prove his case against the accused successfully before this Court. The evidence (oral as well as documentary) placed on record before this Court show that the complainant and accused were previously known to each other as they were residing in the same vicinity and had dealings with each other. DW-2 Irshad has specifically admitted in his cross-examination that the accused was having business dealings with the complainant. Further DW-1/Accused has admitted in his cross examination that Ex. CW-1/1 are in his hand writing. The said Ex. CW-1/1 are the hand-written calculations of the amount and shows the balance amount upto 07.12.2016. The version of the accused that Ex. CW-1/1 is recording of inventory stock as to how much of goods were received and how much of goods had been sold can not be believed as there is no mentioning of goods on the said hand written calculations. In the circumstances of the case it seems that the calculation was regarding the settlement of account/amount between the parties upto 07.12.2016. Further in his notice U/s 251 Cr.P.C, the accused specifically mentioned that the cheque in question was given in blank signed condition to the complainant for security as he had business relations. The cheque in question was given at the start of business relations and he is not liable for cheque amount mentioned in the cheque in question. But later on, the accused at the time of recording of his statement U/s 313 Cr.P.C as well as at the time of leading defence evidence in his examination in chief/ cross examination changed his stand and stated that he had issued the cheque in question after signing the same and filling up amount to father of the complainant for a business transaction. Further in his evidence DW-1/accused has stated he had received Rs 2,60,000/- from Nanhe and he also gave a security cheque Case No. 3314/17 Nazim Vs. Salim Khan 24 to him. No date for taking money of Rs 2,60,000/- has been given by the accused. The accused further stated that after selling the goods, he went to Nanhe to return the amount and when he returned the amount , he asked for the cheque from Nanhe who stated that the cheque is in custody of his son namely Nazim who is out of station and Nanhe promised to return the cheque within 2-3 days. But he did not return the same and the cheque in question has been thus misused by the complainant. DW-1 has also examined DW-2 to support these facts. However , the stand of the accused seems to be an after -thought since no where at the time of framing of notice U/s 251 Cr.P.C , the accused had disclosed these facts in his defence but later took a contradictory stand from the earlier one. Even if the stand of the accused is taken to be true for the sake of argument , the stand of the accused does not fit in the facts and circumstances of the case since the accused has mentioned the date of return of amount of Rs 2,60,000/- to father of complainant on 05.02.2017 in the presence of DW-2/Irshad. Further, DW- 2/Irshad has stated in his cross examination that on 05.02.2017 the accused had called him and requested to accompany him to complainants house. The accused had taken cash of Rs 2,60,000/- from his house on 05.02.2017. DW-2/Irshad specifically stated in his cross examination that the accused was having cash of Rs 2,60,000/- in the form of Rs 1,000/- notes. However, if judicial notice is taken of the date and events, it is transpired that in the month of November 2016, demonetization was done by the Govt. of India and all the notes in the form of Rs 1,000/- were ceased to be legal tender for exchange of money. Thus, this fact raises serious doubt on the version of the accused as well as DW-2/Irshad and due to this reason , it cannot be believed that accused had returned the amount of Rs 2,60,000/- in the form of Rs 1,000/- notes to the father of the complainant on 05.02.2017, who accepted the same as legal tender of money as alleged by the accused due to demonetization by the Government of India in the month of November, 2016. Further as per admission of accused in his cross examination as DW-1 that he did not take any receiving from the father of complainant when he returned Rs 2,60,000/- as alleged. Thus these facts show that the testimony of DW-1 and DW-2 is not trustworthy and reliable. Further DW-2 is an interested witness as related to the accused/DW-1 and due to glaring defect in the testimony of DW-2 Case No. 3314/17 Nazim Vs. Salim Khan 25 regarding the fact of payment to the father of complainant on 05.02.2017 of Rs 2,60,000/- in the form of Rs 1,000/- notes, the testimony of DW-2 cannot be trusted and relied by this Court to support the version of the accused and the same is liable to be discarded.
33. On the other hand, the evidence led by the complainant and the circumstances of the case show that the complainant , his father and accused were known to each other and had business dealings. The accused has specifically stated in his statement at the time of framing of notice U/s 251 Cr.P.C that the cheque in question was given in blank signed condition to the complainant for security as they had business relations. The cheque in question was given at the start of business. Further DW-1/accused has admitted that Ex. CW-1/1 is in his hand writing which is calculation of amount due upto 07.12.2016. Ex. CW-1/2 is the cheque in question bearing signatures of the accused and is in the name of Nazim Traders. Further documents Ex. CW-1/3, Ex. CW-1/4 & Ex. CW-1/5 show that the said cheque was returned unpaid/dishonoured on 18.02.2017, 27.03.2017 & 12.05.2017 three times in the account of the accused due to "stopped payment by the drawer" and despite issuance of legal notice on 08.06.2017 on behalf of the complainant to the accused , the accused has failed to pay the cheque amount to the complainant. Moreover, despite dishonor of cheque at the very first time accused raised no complaints against the conduct of the complainant regarding misuse of the cheque and even no reply was sent by the accused to legal notice issued on behalf of the complainant. These acts of accused speaks for themselves and show that the version of the complainant is true and trustworthy. Further there are presumptions in favour of the complainant U/s 118 & 139 NI Act and the accused has not disputed his signatures on the cheque in question.
34. Further , the argument of the accused that the cheque in question was issued as a security is of no help to him in the facts and circumstances of the case as the distinction sought to be made between issuance of cheque for repayment of debt and issuance of cheque as a security for repayment of debt is illusory in law. Any cheque Case No. 3314/17 Nazim Vs. Salim Khan 26 whether issued towards repayment of debt or liability as a security, if dishonoured , the drawer of a cheque incurs liability of prosecution under section 138 of the Negotiable Instruments Act. Unlike the other securities , the cheque even if it is issued as security for repayment it is very much a negotiable instrument and with implied instruction for deferred presentation on future date, if the debt is unpaid as per the agreed terms. The cheque upon the default of the terms if presented and dishonoured, it very much amounts to an offence under section 138 of the Negotiable Instruments Act. . The contention that the cheque was issued only as security is preposterous.
35. The cheque whether issued for payment of debt or as security makes no distinction in law. The cheque is a negotiable instrument, it may be that sometimes the cheque is issued with a request on the part of the drawer to defer the presentation of the cheque for sometime, to enable the drawer to make payment by cash and take back the cheque or allow time to arrange funds for encashment of cheque. When the amount is not paid as per oral understanding , the payee is well justified to present the cheque for encashment. The cheque even if it is issued as a security for payment, it is negotiable instrument and encashable security at the hands of the payee. Therefore merely because the drawer contends that it is issued as security is not a ground to exonerate the penal liability under section 138 of the NI Act.
36. Further due to admission of accused at the time of framing of notice under section 138 NI Act that the cheque in question was given in blank signed condition to the complainant, there seems to be no weight in the argument of the accused that the complainant has no authority to file the present case as the cheque in question is in the name of Nazim Traders. Accordingly, the said argument is liable to be rejected due to abovesaid categorical statement of the accused.
37. Hence, in the considered opinion of this court, the complainant has been able to prove his case against the accused on the basis of presumptions raised U/s 118 NI Act and 139 NI Act as well as testimony of CW-1 and documentary evidence Ex. CW-1/1 to Case No. 3314/17 Nazim Vs. Salim Khan 27 Ex. CW-1/8 and the accused has failed to rebut the presumptions raised in favour of the complainant U/s 118 and 139 NI Act as the testimony of DW-1 and DW-2 does not seem to be trustworthy and reliable due to material defect regarding fact of payment of Rs 2,60,000/- to the father of complainant on 05.02.2017 i.e. during the period of demonetization by the Govt. of India in the month of Novemeber 2016 in the form of notes Rs 1,000/- as the same could not be legally tendered by the accused and accepted by the father of complainant as alleged by the accused on 05.02.2017. The oral as well as documentary evidence placed on record by the complainant show that the cheque in question was issued to the complainant by the accused in discharge of liability and the same got dishnoured on 18.02.2017, 27.03.2017 & 12.05.2017 due to "payment stopped by drawer" and despite issuance of legal notice issued on behalf of the complainant, the accused failed to pay the cheque amount to the compalainant of Rs 2,60,000/- . Even, if the cheque in question was given as security by the accused, the complainant could very well use the same in the event of non-payment/default for payment by the accused. Hence, in the considered opinion of this Court, the ingredients of section 138 NI Act are fulfilled. The complaint has been filed within the period of limitation and the accused is held guilty of the commission of the offence U/s 138 NI Act and is convicted accordingly.
Judgment pronounced in the open Court.
Put up for order on sentence on 08.09.2021.
Dictated & Announced in Open Court Digitally signed by
Dated 31.08.2021 FAHAD FAHAD UDDIN
Location: Shahdara
District, Karkardooma
UDDIN Courts, Delhi
Date: 2021.08.31
15:57:43 +0530
(FAHAD UDDIN)
MM-04/SHD/KKD COURTS/DELHI
Case No. 3314/17 Nazim Vs. Salim Khan 28