Delhi District Court
Smt. Guddi vs . Shri Asraf on 24 February, 2016
IN THE COURT OF SHRI DEEPAK KUMAR, MM03 (NI ACT) SOUTHWEST DISTRICT: NEW DELHI C.C No. 355/15 Unique case ID No. 02405R0036592015 under Section 138 of N.I. Act In the matter of : Smt. Guddi, R/o D81, Phase 3, Sector3, J.J. Colony, Dwarka, South West Delhi110078. ...Complainant Verses Asraf, House No. C24, Phase3, Sector3, J.J. Colony, Dwarka, SouthWest Delhi110078. ...Accused Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 1 of 29 Date of Institution : 31.03.2015 Date of judgment : 24.02.2016 J U D G E M E N T:
1. Vide this judgment, I shall dispose off the present complaint under section 138 Negotiable Instruments Act (hereinafter referred to as the 'N I Act') filed by the complainant against the accused.
2. The brief facts of the case as averred by the complainant in its complaint are that complainant had advanced a friendly loan of Rs. 02,70,000/ to the accused in the month of December, 2013. It has been further averred that complainant had also given a sum total of Rs. 03,10,000/ towards several deposits which complainant got deposited with accused from January, 2013 to June, 2014 in the form of a committee. It has been further averred that in order to discharge the said liability, the accused issued a cheque bearing no. 830453 dated 15.12.2014 in sum of Rs. 05,80,000/ drawn on Punjab National Bank, Sector12A, Dwarka, New Delhi in favor of the complainant which was returned unpaid vide returning memo report dated 16.01.2015 with the remarks "FUNDS INSUFFICIENT". Thereafter, the complainant sent a legal demand notice dated 11.02.2015 to the accused through her Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 2 of 29 Counsel by speed post. However, as per the complainant, despite service of the said legal notice of the demand, the accused failed to pay the aforesaid dishonored cheque amount. Hence, the present complaint.
3. The cognizance of offence u/s 138 Negotiable Instrument Act, was taken and accused was summoned vide order dated 09.04.2015. Thereafter, separate notice u/s 251 Cr. P.C., explaining acquisitions against the accused u/s 138 N I Act was framed on 30.05.2015 to which he did not plead guilty and claimed trial.
4. An application filed on behalf of the accused u/s 145(2) NI Act seeking to crossexamine the CW was allowed. Vide order dated 06.08.2015, CE was closed. On 09.09.2015, statement of accused u/s 313 Cr.P.C was recorded. DE was closed vide order dated 19.01.2016.
5. It is well settled position of law that to constitute an offence under S. 138 N.I. Act, the following ingredients are required to be fulfilled:
(i) A person must have drawn a cheque on an account maintained by him in a bank for Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 3 of 29 payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) 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;
(iv) 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;
(v) 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 drawer of the cheque, within 30 days of the receipt of information by him from Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 4 of 29 the bank regarding the return of the cheque as unpaid;
(vi) 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.
6. Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the N I Act.
7. I have heard both the parties and gone through the record.
8. First, it appears pertinent to mention here the provisions of Section 118 of the NI Act which inter alia provides that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the NI Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque , for the discharge of, whole or part of any debt or liability . The said presumptions are rebuttable in nature. Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 5 of 29
9. In Rangappa vs. Sri Mohan 2010 V AD(SC), three Judge Bench of Hon'ble Supreme Court held that section 139 raises a presumption of existence of legally enforceable debt or liability and not simple existence of debt or liability. This presumption is rebuttable presumption and it is open to the accused to raise a defense wherein the existence of legally enforceable debt or liability can be contested.
10. It has been held in M/s Kumar Exports v. M/s. Sharma Carpets, 2009 A.I.R. (SC) 1518 that the accused may rebut these presumptions by leading direct evidence and in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case.
11. As, discussed above, it becomes amply clear that the accused does not need to discharge his or her liability beyond the shadow of reasonable doubt. He just needs to create holes in the case set out by the complainant. Accused can say that the version Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 6 of 29 brought forth by the complainant is inherently unbelievable and therefore the prosecution cannot stand. Or the accused can give his version of the story and say that on the basis of his version the story of the complainant cannot be believed. In the first situation the accused has nothing to do except to point inherent inconsistency in the version of the complainant.
12. So far as the factum of liability is concerned, in view of the mandatory presumptions of law as discussed above if an accepted signed cheque has been produced by the complainant, then there cannot be any inherent lacuna in the existence of liability. But then definitely accused can create some loopholes in the story of the complainant by impeaching the credit of witness during the cross examination. The strength of standards on the accused is not as high as placed and desired from the complainant. Accused can discharge its burden by demonstrating the preponderance of probabilities coming in its way.
13. Now, coming to the present case in hand. The first defense of the accused has been rooted in attacking the validity of cheque in question i.e. Ex.CW1/A . It has been contended that there has been material alteration in the cheque, rendering the cheque invalid and the same can not be used for launching action against accused u/s 138 N.I. Act. Reliance in this regard has been placed Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 7 of 29 upon the judgment of Hon'ble Karnatka High Court dated 13th August, 2012 in the case titled as Basangouda Channappa vs. M/S Karnataka Mining Industries and the judgments of Hon'ble Kerala High Court in Starline Agencies vs. R.B. Agencies dated 8th March 2006 and Ramchandaran vs. K. Dineshan 2005 CRL. L. J 1237. Same has been countered by the Ld. Counsel for the complainant by submitting that impugned cheque has been issued to the complainant in duly filled form and no alteration whatsoever has been made by the complainant. It has been further asserted that complainant, being illiterate, is incapable of making any alteration and moreover, the cheque in question has been returned dishonored on its presentation on account of insufficient funds.
14. After having heard both the parties, let me now proceed to examine the above contention of the accused. Before proceeding to consider the same, first and foremost, it appears relevant to mention here the relevant legal provisions.
15. Section 87 of the Negotiable Instruments Act, reads as follows :
"87. Effect of material alteration Any material alteration of a negotiable instrument renders the same void as against any one who is a party Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 8 of 29 thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties; Alteration by indorsee Any such alteration, if made by an indorsee,discharges his indorser from all liability to him in respect of the consid eration thereof. The provisions of this section are subject to those of sections 20, 49, 86 and
125.
16. In Veera Exports vs T. Kalavathy on 2 November, 2001, AIR 2002 SC 38, Hon'ble Supreme Court of India held as follows:
"The first paragraph of Section 87 makes it clear that the party who consents to the alteration as well as the party who made the alteration are disentitled to complain against such alteration, e.g. if the drawer of the cheque himself altered the cheque for validating or revalidating the same instrument he cannot take Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 9 of 29 advantage of it later by saying that the cheque became void as there is material alteration thereto. Further, even if the payee or the holder of the cheque made the alteration with the consent of the drawer thereof, such alteration also cannot be used as a ground to resist the right of the payee or the holder thereof. It is always a question of fact whether the alteration was made by the drawer himself or whether it was made with the consent of the drawer. It requires evidence to prove the aforesaid question whenever it is disputed."
17. Section 20 of NI Act provides for "inchoate stamped instruments" and states that if a person signs and delivers a paper stamped in accordance with the law and "either wholly blank or have written thereon an incomplete negotiable instrument" such person thereby gives prima facie authority to the holder thereof "to make or complete as the case may be upon it, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp."
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18. The position in law has been explained in the judgment of the Division Bench of the Hon'ble Kerala High Court in Lillykutty v. Lawrance 2003 (2) DCR 610 in the following words:
"In the instant case, signature is admitted. According to the drawer of the cheque, amount and the name has been written not by the drawer but by somebody else or by the payee and tried to get it encashed. We are of the view, by putting the amount and the name there is no material alteration on the cheque under Section 87 of the Negotiable Instruments Act. In fact there is no alteration but only adding the amount and the date. There is no rule in banking business that payee's name as well as the amount should be written by drawer himself."
19. The above judgment was quoted with agreement by the Hon'ble Delhi High Court in Ravi Chopra vs State & Anr. 2008(2) JCC (NI) 169 and it was held that if the signatures on the cheque are admitted by the accused, it matters little if the name of Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 11 of 29 the payee, date and amount are filled up at a subsequent point in time.
20. Now coming to the facts of the present case in hand. The primary defense of the accused has been focused in controverting the validity of the impugned cheque by alleging the same being materially altered. It has been asserted that there has been material alteration by writing two dates on the cheque in question. In order to substantiate his claim, accused examined bank witness DW1, who brought on record the reply i.e. Ex.DW1/B given to the letter Ex.DW1/A written on behalf of the accused to the concerned bank authority regarding the acceptance of materially altered cheque. The Para no. 3 of the said reply i.e. Ex.DW1/B states as follows:
"The contents of unnumbered para 3 of your notice is wrong and hence denied, it is wrong and denied that the holder of the cheque got it dishonored from our client in collusion with some staff of our client. It is further wrong and denied that your client is facing criminal prosecution on account of a serious lapse on part of our client. It is submitted that even your Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 12 of 29 client had not the balance on 15.01.2014 to honour the cheque in question. Thus your client want to take undue advantages of his own wrong."
21. Secondly, DW1 categorically deposed that his Bank i.e. Punjab National bank, Sector 12A, Dwarka is not concerned with the dishonor of the cheque in question. However despite the said deposition, accused did not prefer to examine the concerned bank authority. The said bank witness could have been prayed to be examined. It has been argued on behalf of accused that the concerned bank witness could not be identified. However the said arguments appear to be hollow and flawed one as accused conveniently and questionably chose to ignore the inspection of the case file and thus ascertainment and identification of the concerned bank authority. The approach of the accused miserably fails to inspire the confidence of the court.
22. Further, even assuming and not admitting that there has been irregularities in admitting the impugned cheque by the concerned bank authority, at most , it entitles the drawer to make up the loss and damages if any, from the bank who runs the risks of its consequences.
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23. Perusal of cheque in question i.e. Ex. CW1/A reveals that two dates have been written on the cheque, however, merely by the same, it cannot be inferred that same is material alteration or that it has been done by the complainant. It is a settled principle of law that one who alleges something must prove the same and therefore onus was on accused to prove that correction in the date of cheque was not done by him but by the complainant and without his consent and that the same amounts to material alteration rendering the cheque void. However, in the present case, accused has not led any evidence, whatsoever to prove the same. Moreover, accused did not bring on record any communication made to the complainant regarding demand of return of the cheque in question.
24. Even the Para no. 1.8 of " CTS2010 Standard for Cheque FormsSpecifications" i.e. Ex.DW1/C (colly) relied upon by the accused carves out exception regarding correction for the purpose of date validation purpose, if required. The same reads as follows:
"Prohibiting alterations/corrections on cheques :
No changes/ corrections should be carried out on the cheques (other than for date validation purposes, if required). For any change in the payee's name, courtesy amount (amount in figures) Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 14 of 29 or legal amount (amount in words), etc., fresh cheque forms should be used by customers. This would help banks to identify and control fraudulent alterations.
25. The plea of material alteration further fall flats on account of assertion of the accused that the cheque in question was given to some Akram as blank signed for the purpose of purchasing of some mobile phone. However, much to the derogation of his own case, he did not opt to examine the said Akram who could have been the key witness to substantiate his claim. It appears quite indigestible and improbable that a blank signed cheque would be given to someone for the purpose of purchasing a mobile phone. No reasonable explanation has been offered on behalf of accused for the same. There has been conspicuous silence as to the person who filled up the particulars of the cheque in question or more precisely the dates on the cheque in question. No prayer was made for sending the impugned cheque for forensic test. Accused remained conspicuously and questionably inert and muted over this issue much to the detrimental of his own case, which largely imperils and emasculates the defense of the accused. Further, the submissions are vague in nature. Secondly, arguments cannot be substituted for Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 15 of 29 evidence. A bare claim or explanation given by the accused cannot be accepted.
26. Further, the judgments sought to be relied upon by the accused appears to be of no help to him as the same were delivered in the backdrop of different and distinct sets of facts and circumstances which offer little relevance to the present case in question. In the present case, there has been no erasure or interlineation in the cheque in question and moreover, as held earlier, accused utterly failed to prove if the particulars including the dates on the cheque in question were not filled up him or he has not consented the putting of subsequent date on the impugned cheque.
27. In view of these set of circumstances, facts and legal positions, I do not find any force in the contention that there has been material alteration in the cheque in question, rendering the same as void. Accordingly,the same is decided in favor of the complainant.
28. It has also been the defense of the accused that com plainant was neither capable nor in possession of sufficient funds to advance such a huge loan. Reliance in this regard has been placed upon the judgment of Hon'be Supreme Court in the case titled as K. Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 16 of 29 Subramani vs. K. Damodara Naidu 201591) JCC (NI) 23. Lets examine the same in the light of the facts and circumstances of the present case.
29. The quintessence of the submissions made by the ld counsel for the accused appears to be focused on the point that it was not enough for the cheque to have been issued and the same to have been dishonored, it was also for all its intents and purposes mandatory to establish that cheque was issued for discharge, in whole or in part for any legally enforceable debt or liability. Appreciation of the above contention warrants the discussion of the provision of Section 138 and 139 of the N I Act.
30. Section 139 of the NI Act reads as under:
"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 na ture referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
31. In criminal trial where accused is subjected to intense scrutiny and his life and liberty is placed under scanner, it is all necessary that the execution of cheque against the alleged loan should be proved with evidence of irrevocable nature and of Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 17 of 29 impeccable character. Mere production of cheque cannot make the case of the complainant sacrosanct and absolute so as to exempt her from all blemishes and burdens. It is trite to say that Cheque as an instrument is very prone to be misused and thus it becomes all necessary for complainant to come up with cogent and convincing evidences to win over the confidence of the court.
32. In C. Santhi vs. Mary Sherly And Anr. decided on 30.06.2011, Hon'ble High Court of Kerala while considering the issue of difference between execution and issuance of cheque,has held as follows: "On consideration of the various aspects and provisions of the Act,I am of view that the contention raised by a accused in a prosecution under section 138 of the act that he issued a blank signed cheque will not amount to admission of execution of cheque. A signed blank cheque leafs very often referred to as a blank 'cheque',but strictly speaking it is not a 'cheque', as defined under the Act. It can be treated only as a containing admitted signature of the accused. The admission of signature on cheque leaf alone will Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 18 of 29 not constitute admission of execution of the cheque. The argument that accused admitted 'execution of the cheque in the reply notice etc. cannot therefore be accepted."
.......................
" The prosecution shall however make clear to court ,each of the circumstances relied upon by it, to establish drawing of the cheque by the accused. The mere fact that the cheque produced in the court came from possession of complainant alone will not be sufficient to prove execution, even though it may be one of the circumstances. No laws allow a court to presume that the cheque which is produced and marked in the court was handed over or delivered to complainant by the accused. The court can at best say that the cheque was in the possession of the complainant. But under what circumstances it came to his possession is to be stated by the complainant. In the absence of such statement, court cannot Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 19 of 29 proceed on any assumption that it was handed over to complainant by accused."
33. Now coming to the present case in hand. Admittedly, complainant used to earn around five to seven thousands per month by doing the work of cooking and and other household work. She also stated to have one daughter earning around 78 thousands and a son earning around fourteen thousand per month by doing the work of wall painting. However, she failed to specify if any contributions were made by her son and daughter and much to the detrimental of her own case, she did not prefer to examine the same in assistance of her case. Even, for the sake of argument, and as of passing remarks, if we add the alleged earnings of all the three person, it comes to around 26 - 27 thousands which appears quite inadequate in meeting the needs and requirements of the family and also managing to save sufficiently to invest in committees as complainant alleged to have invested the sum of Rs.03,10,000/ in the committee run by the accused during the period from January, 2013 to June, 2014 which comes at the rate of more than 20 thousand rupees per month. The incredulity and indigestibility goes further as complainant claimed to have invested in other committees as well.
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34. Despite of specific suggestion controverting the claim of the complainant, she failed to brought on record any evidence to corroborate her assertion of investing substantial amount in the committees run by accused. Complainant admitted of having not in possession of any receipt against the alleged deposition of amount. She also did not examine any independent witness to substantiate her claim. It appears quite unbelievable that a person earning meager amount would venture out in investing such a huge amount on regular basis without securing any receipts. Apparently, it militates against the standard of ordinary prudent person and thus, the claim of the complainant appears to be highly doubtful.
35. Complainant also asserted to have advanced the friendly loan of Rs.02,70,000/ to the accused in the month of December 2013. However at the outset, it appears significant to mention that the fiction of friendly loan is very easy to be weaved, conceived and averred but very hard to be proved and established. It becomes very captious when stakes are high and stands of the parties are fiercely and frantically brought forth with equal force and fortitude. In the present case, as per the assertions and averments of the complainant, she is earning around 57 thousands per month. Thus, it becomes of decisive importance to intensely and expansively scrutinize the claim of the complainant. Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 21 of 29
36. Considering the financial background of the complainant, the amount of Rs. 2,700,00/ is quite high and thus capacity of the complainant in advancing such huge amount is needed to be delved deeper and scrutinized arduously. Complainant has stated to have arranged the amount from different sources. Complainant has averred that she had arranged the part amount after selling off her Makaan. But when the capacity of the complainant to advance such a huge amount was disputed during her cross examination, the onus was on the complainant to bring forth some positive evidences either by calling the witness of the said transaction or filing on record the testimonial documents against the proof of the said property transaction. However, much to the derogation of her own case, the complainant kept tightlipped and preferred not to produce any clear, cogent and reliable evidence to contradict the assertion of the accused.
37. It's quite normal for ordinary prudent person to remain assiduous and watchful while humoring into financial transactions. In ordinary course of human nature, money matters are considered sensitive enough to demand alert and attentive attendance of human psyche. The degree of alertness and attentiveness gets bigger and sharper with the increase in the amount and the fragile financial status of the lender which are inversely proportional to each other. Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 22 of 29 Here in the present case, when a huge amount of money has been alleged to be advanced, it's all natural for the complainant to come forth with reliable and credible evidence. But, complainant has remained questionably inert and indolent in bringing forth any plausible evidence to win over the confidence of the court.. Complainant was found amiss in examining any witness before whom loan was advanced. The mode of payment has also been not disclosed. It appears quite indigestible and implausible to believe that complainant would advance loan to the tune of Rs.02,70,000/ without any written contracts, in the absence of any witness and without securing its repayment. These facts along with the attending circumstances make way for the entire case set out by the complainant to get enveloped and enamored into the inscrutable smokes of doubt.
38. In K. Subramani Vs. K. Damodar Naidu 2015 Civil court cases 001 (S.C), Hon'ble Supreme Court Of India found the requirement of the complainant to establish his financial capacity to lend money relevant in cases u/s 138 of N.I Act.
39. Similarly in John K. Abraham v. Simon C. Abraham And Another (2014) 2 Supreme Court Cases 236, it has been held as follows: Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 23 of 29 "It has to be stated that in order to draw presumption under Section 118 along with section 139 of Negotiable instrument Act, the burden was heavily upon the complainant to have shown that he had the required funds for having advanced the amount to the accused ;
that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favor of the complainant"
40. Reliance in this the regard can also placed on the judgment of Hon'ble High Court of Delhi in the matter titled as Satish Kumar v. State NCT of Delhi& Anr. 2013 VIII AD (Delhi) 465. ,in which it has been held as follows: "The Court finds some merit in the observation made by the learned ASJ that the petitioner had not been able to prove any of the three sources of money though he had specifically mentioned the same in his deposition .In fact, failure on his part to prove any entry in his Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 24 of 29 bank account showing withdrawal of any amount during the relevant period created a reasonable doubt about the consideration for the cheque in question........."
" .....However once burden of proof had shifted back to petitioner/complainant, he was unable to prove his case beyond reasonable doubt by establishing the source of alleged friendly loan extended to respondent No.2 ,thus disentitling him to grant of relief on basis of the negotiable instruments....."
41. Ld. Counsel for complainant also labored hard to pick hole into the defense of the accused by submitting that accused failed to prove his defense that the cheque in question was handed over to someone else and the same has been misused by the complainant. It has been argued that accused did not examine himself to exonerate and save himself from the rigor of cross examination and thus getting exposed and revealed. Let me discuss the same if same is of any help to the complainant.
42. It is settled principle of law that the case of the complainant should stand on its own leg. It cannot take advantage Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 25 of 29 of the weakness of the defense, nor can the court, on its own, make out a new case of the prosecution and convict the accused on that basis. If defense version is incorrect, it does not mean the prosecution version is necessarily correct. Therefore the contention of Ld. Counsel for the complainant regarding the weak defense of the accused appears to be of no use in sailing through the case of the complainant as accused has made decisive intrusion into the case built up by the complainant by successfully pointing towards the inherently incurable defects into the web of facts weaved by the complainant.
43. In Sharad Birdhi Chand Sarda vs. State Of Maharashtra on 17 July, 1984 (1984) 4 SCC 116, Hon'ble Supreme Court of India has made following authoritative observation while discussing the principles of appreciation of prosecution and defence evidence: "It is well settled that the prosecution must stand or fall on its own legs and it cannot de rive any strength from the weakness of the de fense. This is trite law. However, where various links in a chain are in themselves complete, then a false plea or a false defense may be Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 26 of 29 called into aid only to lend assurance to the Court. In other words before using the addition al link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution cases the same could be cured or supplied by a false defense or a plea which is not accepted by a Court."
44. It is all more significant that presumption can only be raised in furtherance of prosecution case and not in derogation of the same. The three judge bench of Hon'ble Supreme Court in a case while dealing with Prevention of Corruption Act has observed in respect of presumption of law in 'Trilok Chand Jain v. State of Delhi' AIR 666 as under: "......the presumption therefore can be used in furtherance of the prosecution case and not in derogation of it. If story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception"
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45. Thus, in view of the totality of circumstances and the settled legal positions as discussed above, the case attempted to be built by the complainant, appears to be suffering from fatal infirmities so much so that it goes directly to the root of the case and shakes the very edifice on which the case of the complainant rests. It is also relevant to mention here that the criminal conviction entails enigmatic and stigmatic exposures and experiences and thus it becomes of paramount importance to demand evidence of unimpeachable character and of unambiguous nature.
46. In the case of 'Kulwinder Singh Vs. Kafeel Ahmad' Cr. L.P. No. 478 of 2011, decided on 04.01.2013 Hon'ble Delhi High Court has held that the basic principle in criminal law is that the guilt of the respondent/accused must be proved beyond reasonable doubt and if there is any slightest doubt about the commission of an offence then the benefit has to accrue him.
47. In view of the above discussions, the present case appears to be fit case where benefit of doubt can be extended to the accused. Accordingly, in view of the above discussions, I hold that the complainant has failed to prove her case. Accused has been able to rebut presumptions u/s 118 and 139 NI Act arising in favour of the Complainant.
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48. As the ingredients of the Section 138 N.I. Act are not fulfilled, the offence under Section 138 N.I. Act is not made out against the accused. Accordingly, the accused Asraf is acquitted.
49. Bail Bond filed u/s 437 (A) Cr. P.C is already on record. Announced in the open Court on 24th Day of February 2016 (Deepak Kumar) MM03 (NI Act)/SouthWest Dwarka/ New Delhi Smt. Guddi Vs. Shri Asraf C.C No. 355/15 Page 29 of 29