Delhi District Court
Cc No. 626528/16 Manjeet Singh vs . Sunipan Ghosh Page No. 1/15 on 6 December, 2021
IN THE COURT OF ANKIT MITTAL,
METROPOLITAN MAGISTRATE - 04, N. I. ACT,
SOUTHEAST DISTRICT, SAKET DISTRICT COURTS, DELHI.
JUDGMENT
Manjeet Singh .................Complainant
Versus
Sunipan Ghosh ....................Accused
PS - New Friends Colony
Under Section 138 of N. I.
Act, 1881
CNR No. DLSE020075242015
a) Sl. No. of the case : CT No. 626528/2016
b) Date of filing of case : 11.09.2015
c) Name of the complainant : Manjeet Singh
S/o Sh. Bhagat Ram Bansal
R/o 850, Shakti KhandIV,
Indirapuram, Ghaziabad,
Uttar Pradesh201014
d) Name of the accused person(s) :Sunipan Ghosh
S/o Sh.S. K. Ghosh
R/o 906, Solitare Paramount
Symphony Republic Crossing
Ghaziabad201016
e) Offence complained of : Under Section 138 of N. I. Act,
1881
f) Plea of accused : Pleaded not guilty
g) Final order : Acquittal
h) Date of such order : 06.12.2021
BRIEF STATEMENT OF THE REASONS FOR DECISION :
1. Vide this judgment, this Court shall dispose off complaint for offence punishable CC No. 626528/16 Manjeet Singh Vs. Sunipan Ghosh Page No. 1/15 under Section 138 of The Negotiable Instruments Act, 1881 filed by the complainant Manjeet Singh S/o Sh. Bhagat Ram Bansal against accused Sunipan Ghosh. In gist, it is alleged in complaint that complainant advanced friendly loan to the accused of Rs.49,500/ (Rupees Forty Nine Thousand Five Hundred Only) vide cheque bearing no. 00061 dated 27.07.2015 which is Ex. CW1/A. Complainant presented the cheque, but same was dishonored vide memo Ex.CW1/B with reasons 'Account Closed'. The complainant sent a legal demand notice on 10.08.2015 vide Ex.CW1/C via postal receipt Ex.CW1/D which was delivered by AD Card/service report Ex. CW1/E and reply to the legal demand notice was given by the accused Ex. CW1/F. Since, no payment was made by the accused within the statutory period of legal demand notice, hence, this complaint.
APPEARANCE OF ACCUSED & NOTICE
2. Presummoning evidence was led by the complainant side and after hearing complainant side, accused was summoned for offence punishable under Section 138 of The Negotiable Instruments Act, 1881. After appearance of accused, it was ensured that copy of complaint has been supplied. Notice was framed against the accused for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 on 09.04.2018 in which accused pleaded not guilty and claimed trial and submitted that he does not know the complainant. Accused stated that he had not given the cheque in question to the complainant. Accused stated that he had given the cheque in question to the father of the complainant as he had the dealing with him in 201213. Accused stated that he had given six security cheques to him, when dealings were complete, accused requested the complainant to return his cheques but complainant told him that the cheques have been misplaced. Accused stated that he consulted his advocate and he advised him to asked the father of the complainant to get FIR registered of the missing cheques. Accused CC No. 626528/16 Manjeet Singh Vs. Sunipan Ghosh Page No. 2/15 stated that complainant's father told him that he is a senior citizen and he will not misuse the cheques. Accused advocate advised him to get FIR registered for missing the cheques but police did not register the same on the ground that cheques were not misplaced by him but by the father of the complainant. Accused stated that he sent a legal notice to the father of the complainant in the year 2014 to return the cheques and in case the cheques have been misplaced than he is responsible for the same. Accused stated that in august, 2014, he made stopped payment for all six cheques. Accused stated that he received the legal notice from the complainant and he replied the same. Accused stated that the amount in question was filled by him and he also signed the cheque in question but other details were not filled by him. Accused stated that father of the complainant has also misused his other cheques and cases have been filed against him in Kanpur and Ghaziabad also. Accused stated that he has no liability towards the complainant for any payment. Thereafter, matter was fixed for complainant's evidence and accused side was granted opportunity to crossexamine the complainant's evidence.
COMPLAINANT'S EVIDENCE
3. During the trial, complainant has led the oral and documentary evidence against the accused to prove his case beyond reasonable doubt. The following evidence are as under:
Oral Evidence CW1 Manjeet Singh (Complainant) Documentary Evidence Ex. CW1/A Cheque bearing no. 00061 dated 27.07.2015 for a sum of Rs. 49,500/ Ex. CW1/B Return Memo dated 29.07.2015 with remarks "Accounts Closed) Ex. CW1/C Legal demand notice dated 10.08.2015 Ex. CW1/D Postal Receipt.CC No. 626528/16 Manjeet Singh Vs. Sunipan Ghosh Page No. 3/15
Ex. CW1/E AD Card /Service report
Ex. CW1/F Reply to the legal demand notice
Complainant stepped in witness box as CW1 adopted his affidavit of pre summoning as his evidence reiterating almost all facts of complaint, stating all exhibits available on record.
4. Complainant evidence was closed vide order dated 19.09.2018 and thereafter, matter was fixed for recording statement of accused.
STATEMENT OF ACCUSED
5. The statement of accused was recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 separately on 19.02.2019.
He answered in his statement u/s 313 Cr.P.C that it is totally false. He stated that he does not even know present complainant before this complaint. He stated that he knows Sh. Bhagat Ram Bansal, father of present complainant as he had dealings with him prior to year 2014. He stated that he had provided him six cheques for said dealings.
Further, he stated that he had repaid the whole amount of Sh. Bhagat Ram Bansal and when he demanded his cheques, he told him that he has lost them. He answered that consulted his lawyer who told him to ask Sh. Bhagat Ram Bansal to lodge a report with police regarding loss of cheques. He answered that he asked Sh. Bhagat Ram Bansal to lodge the report, however, he stated that he is senior citizen and since they have good relations so he should not worry and his cheques would not be misused in any way. He answered that he himself went to PS to lodge report of loss of cheques, but he was told that since they were lost by some other person, therefore, the other person could only CC No. 626528/16 Manjeet Singh Vs. Sunipan Ghosh Page No. 4/15 lodge such report. He answered that he again consulted his counsel who then sent a legal demand notice to Sh. Bhagat Ram Bansal wherein the fact of loss of cheques by him was mentioned. He answered that he also stopped the payments of all those six cheques with his bank. He was not even residing nearby to the place of complainant and his father in the year 2015, so there was no question of providing any money by complainant to him in the year 2015. He answered that his present cheque has been misused by present complainant without any liability after manipulating the same. He answered that the other cheques have also been misused by filing complaints at Ghaziabad and at Kanpur through other people related to complainant and Sh. Bhagat Ram Bansal only to harass him. He stated that the said complaints have been filed through Sh. Nirmala Gupta at Kanpur and Sh. Bhagat Ram Bansal at Ghaziabad. He stated that he first received the call of present complainant in the year 2015 wherein he threatened him and told him that he is son of Sh.
Bhagat Ram Bansal. He stated that he has recording of the same and will produce in defence.
In statement u/s 313 Cr.P.C, accused opted lead to defence evidence. Accused examined himself as DW1 and tendered documents in his defence which are as under:
Defence of Accused.
Oral Evidence (DW1 Sunipan Ghosh)
Documentary Evidence
Ex.DW1/1 Originals statement of account dated 01.01.2013 to 01.01.2014
Ex.DW1/2 Record slip of cheques
Ex.DW1/3 Copy of cheque bearing no.000060 dated 31.07.2013 drawn on
Bank of India
Ex.DW1/4 Legal notice dated 29.03.2014
Ex.DW1/5, Copy of postal receipt dated 31.03.2014
Ex.DW1/6 Copy of deposit four slip
CC No. 626528/16 Manjeet Singh Vs. Sunipan Ghosh Page No. 5/15
Ex.DW1/7 Copy of stop payment dated 19.08.2014
Ex.DW1/8 Copy of legal notice dated 08.08.2015
Ex.DW1/9 Copy of legal notice dated 14.08.2015
Ex.DW1/10 Copy of aadhar card
Ex.DW1/11 Copy of record of diary
Ex.DW1/12 statement of account dated 01.01.2014 to 01.09.2014.
6. Thereafter, defence evidence was closed vide order dated 03.10.2019.
7. Final arguments from both sides were heard at length and written synopsis/arguments were filed by both the parties. Case file perused.
POINT FOR DETERMINATION :
8. Whether the complainant has been able to establish ingredients of offence punishable under Section 138 of The Negotiable Instruments Act, 1881 beyond shadow of reasonable doubt against the accused or not?
INGREDIENTS OF OFFENCE AND DISCUSSION
9. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 138 of NI Act, the prosecution must fulfill all the essential ingredients of the offence. Perusal of the bare provision reveals the following necessary ingredients of the offence: First Ingredient: The cheque was drawn by a person on an account maintained by him for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity; Second Ingredient: The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability;
Third Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;
Fourth Ingredient: A demand of the said amount has been made by the payee or holder CC No. 626528/16 Manjeet Singh Vs. Sunipan Ghosh Page No. 6/15 in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank; Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
APPRECIATION OF EVIDENCE .
10. The accused can only be held guilty of the offence under Section 138 NI Act if the abovementioned ingredients are proved by the complainant coextensively. Additionally, the conditions stipulated under Section 142 NI Act have to be fulfilled.
Notably, there is no dispute qua the proof of first, third, fourth and fifth ingredient. The complainant had proved the original cheque vide Ex. CW1/A which the accused had not disputed as being drawn on the account of the accused. It was not disputed that the cheque in question was presented within its validity period. The cheque in question was returned unpaid vide return memo Ex. CW1/B due to the reason, "account closed". The complainant had proved on record the legal notice vide Ex. CW1/C dated 10.08.2015 , postal receipts vide Ex.CW1/D, tracking report vide Ex. CW1/E and reply to the legal notice vide Ex. CW1/F. With regard to the third ingredient, it is a well settled law as laid down by the Hon'ble Supreme Court in the case of Nepc Micon Limited and Others vs Magma Leasing Limited (1999) 4 SCC 253 that when the cheque is returned by a bank with an endorsement account closed, it would amount to returning the cheque unpaid because the amount of money standing to the credit of that account is insufficient to honour the cheque as envisaged in Section 138 of the Act. As such, on the basis of the above, the first, third, fourth and fifth ingredient of the offence under Section 138 NI Act stands proved against the accused.
As far as the proof of second ingredient is concerned, the complainant has to prove that the cheque in question was drawn by the drawer for discharging a legally enforceable debt. In the present case, the issuance of the cheque in question is not denied. As per the scheme of the NI Act, once the accused admits signature on the cheque in question, certain presumptions are drawn, which result in shifting of onus. Section 118(a) of the NI Act lays down the presumption that every negotiable instrument was made or drawn for consideration. Another presumption is enumerated in Section 139 CC No. 626528/16 Manjeet Singh Vs. Sunipan Ghosh Page No. 7/15 of NI Act. The provision lays down the presumption that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability.
The combined effect of these two provisions is a presumption that the cheque was drawn for consideration and given by the accused for the discharge of debt or other liability. Both the sections use the expression "shall", which makes it imperative for the court to raise the presumptions, once the foundational facts required for the same are proved. Reliance is placed upon the judgment of the Hon'ble Supreme Court, Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16.
Further, it has been held by a threejudge bench of the Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption contemplated under Section 139 of NI Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence. The principles pertaining to the presumptions and the onus of proof were recently summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 as under:
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner:
25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
25.4. That it is not necessary for the accused to come in the witness box in CC No. 626528/16 Manjeet Singh Vs. Sunipan Ghosh Page No. 8/15 support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come in the witness box to support his defence."
The presumptions raised under Section 118(b) and Section 139 NI Act are rebuttable presumptions. A reverse onus is cast on the accused, who has to establish a probable defence on the standard of preponderance of probabilities to prove that either there was no legally enforceable debt or other liability. In this case, the defence raised by the Ld. counsel for the accused to rebut the presumption is discussed below:
Defence that the cheques in question were not issued for any legal liability nor given to the complainant.
11. As regards the second ingredient, it has to be proved that the cheque in question were drawn by the drawer for discharging a legally enforceable debt. In the present case, the signature of accused on the cheque in question is not disputed by him, rather the stance of the accused is that he had the money dealings with the complainant's father and he handed over the cheque in question to the complainant's father only as a security. He also denied with any kind of dealings with the complainant.
Further, the accused in his defence, recorded u/s 251 Cr.P.C stated that the accused had dealings with the complainant's father i.e. Sh. Ram Bhagat prior to 2014 and had given cheque in question alongwith other 5 cheques to the latter. He also stated that he had repaid whole amount and had asked for his cheques from the complainant's father, which latter refused on the ground that same are lost. Accused also stated in his statement that complainant's father also turned down his request to lodge an FIR qua lost cheques on the ground that the latter is a senior citizen and since they have good relations therefore accused should not worry and his cheques will not be misused in any way. He also stated in his defence u/s 251 Cr.P.C that he tried to lodge an FIR qua lost cheques but he was turned back by the police officials on the premise that since cheques are lost by someone else therefore only that person can lodge the FIR who has lost the cheques. Further accused stated that after consultation with his counsel, he sent the legal notice to complainant 's father i.e. Sh. Ram Bhagat Bansal wherein the fact of loss of cheques was CC No. 626528/16 Manjeet Singh Vs. Sunipan Ghosh Page No. 9/15 mentioned by him and subsequently he stopped the payment of all those cheques. Accused also stated that the other cheques (lost) have been misused by filing complaints at Ghaziabad and at Kanpur through other people related to complainant and by his father only to harass him. Moreover, same was reiterated by the accused in his reply to the legal demand notice sent by the complainant Ex. CW1/F as well as statement recorded u/s 313 Cr.P.C and in his examination in chief u/s 315 Cr.P.C, when he entered the witness box.
12. The Hon'ble Supreme Court in the case of Kumar Exports v. Sharma Carpets (2009) 2 SCC 513, has observed that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of the negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and discharge of any debt or liability. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. The Apex Court further held that in a trial under Section 138 of the Act the accused 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 presumption 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 nonexistence of consideration and that by leading direct evidence because the existence of negative evidence is entirely possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of that, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden CC No. 626528/16 Manjeet Singh Vs. Sunipan Ghosh Page No. 10/15 of proof shifted to the complainant. To disprove the presumption the accused should bring on record such facts and circumstances, upon consideration of which the Court may either believe that the consideration and debt did not exist, or their non existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. 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 the complainant.
13. Coming to the facts of the present case, in order to substantiate his claim, that he had money dealings with the complainant's father prior to year 2014 and made the payment to the latter, accused brought following documents on record i.e originals statement of account dated 01.01.2013 to 01.01.2014 Ex. DW1/1, record slip of cheques Ex. DW1/2 (for year 2013), Copy of Cheque bearing no. 000060 dated 31.07.2013 drawn on Bank of India Ex. DW1/3, Copy of deposit four slip Ex.DW1/6, Copy of Record of diary Ex.DW1/11, Statement of account dated 01.01.2014 to 01.09.2014 Ex.DW1/12 in his cross examination. Though these documents could not prove that the exact payment was made to the complainant's father qua cheque in question, yet they are relevant in proving that there were money transactions between the accused and the complainant's father prior to year the cheque in question was got dishonored. Moreover, even in the cross examination of the accused, the only question which was put to him qua these documents, was whether these documents relates to the complainant or not, which was denied by the accused, since his defence remained consistent throughout that he had no dealings with complainant. Thus, accused was succeeded in proving that there were dealings with the complainant's father.
The case of the accused is further strengthened by the fact he placed on record the legal notice dated 29.03.2014 Ex. DW1/4, Copy of postal receipt dated 31.03.2014 Ex.DW1/5 and Copy of stop payment dated 19.08.2014 Ex.DW1/7. As the perusal of aforesaid documents, corroborated the facts stated by the accused that he had asked the complainant's father to return the cheque in question along with other 5 cheques and upon his refusal on the premise that the same were lost and sensing there is something amiss CC No. 626528/16 Manjeet Singh Vs. Sunipan Ghosh Page No. 11/15 when the complainant's father even refused to lodge an FIR, he sent the legal notice Ex. DW1/4 vide postal receipt Ex.DW1/5 and subsequently the stopped the payment of cheque in question vide Ex.DW1/7. Further, it is relevant to mention herein, the date of legal notice sent by the accused i.e. 29.03.2014 wherein full particulars of cheque in question is mentioned along with the fact that despite repeated requests, complainant refused to lodge an FIR which is much prior date of dishonourment which is 29.07.2015. Moreover, again in the cross examination of accused, no question was asked by the complainant qua these documents apart from the fact, whether it relates to complainant or not.
Further accused in his cross examination tendered the documents i.e. Copy of legal notice dated 08.08.2015 Ex.DW1/8 and Copy of legal notice dated 14.08.2015 Ex.DW1/9, showing the other complaints have been filed against him qua other lost cheques as well. However, again the only question which was asked by the complainant to the accused whether these legal notices were sent by the complainant or not which was again not the defence of the accused and his version went unrebutted.
In the light of above, it seems that there are inherent contradictions in the case of the complainant which have neither been supported by another witness nor by any other documentary evidence. The complainant has failed to prove as to why the cheque in question was issued in his favour by the accused. In light of the evidence available on record, the testimony of CW1 cannot be relied upon. Accordingly, the assertion of the complainant that the accused had issued the cheque in question in due discharge of legal liability arising out of loan amount of Rs. 49,500/ advanced by the former to the latter does not inspire the confidence.
14. The Hon'ble Supreme Court in the case of M.S. Narayana Menon @ Mani v. State of Kerala (2006) 6 SCC 39 has observed as under, "32. A Division Bench of this Court in Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal [(1999) 3 SCC 35] albeit in a civil case laid down the law in the following terms:
"Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is CC No. 626528/16 Manjeet Singh Vs. Sunipan Ghosh Page No. 12/15 supported by a consideration. Such a presumption is rebuttable. The defendant can prove the nonexistence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt"
15. A statutory presumption has an evidentiary value. The question as whether the presumption stood rebutted or not, must, therefore, determined keeping in view the other evidence on record. In case of this nature, where the chances of false implication cannot be ruled out the background fact and the conduct of the parties together with the legal requirements are required to be taken into consideration. The Hon'ble Supreme Court in the case of Krishna Janardhan Bhat v. Dattaraya G. Hegde (supra) had observed that, "45. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country CC No. 626528/16 Manjeet Singh Vs. Sunipan Ghosh Page No. 13/15 like India. This, however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption, but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same."
16. In the present case, the accused has raised a probable defence that no consideration amount was given by the complainant to the accused by surrounding circumstances which shows that no legal liability exists. The accused has been consistent in his reply to legal demand notice sent by the complainant, statement when the notice was framed under section 251 Cr.P.C, statement under section 313 of Cr.P.C and in his evidence u/s 315 Cr.P.C where the accused had clearly stated that he had no connection with the complainant and cheque in question along with other 5 cheques were handed over to complainant's father as security cheques in lieu of dealings between them and same has not been issued to the complainant. In order to rebut the presumption raised under section 118 and 139, it is clear that the accused can rely on the evidence led by him or he can also rely on the materials submitted by the complainant in order to raise a probable defence. The Hon'ble Supreme Court of India in the case of Basalingappa v. Mudibasappa (supra) has held that inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. In the considerate opinion of this court, the accused has raised a probable defence by bringing on record such facts and circumstances in order to rebut the presumption raised under section 139 of the NI Act and that the nonexistence of the consideration and debt is so probable that a prudent man would under the circumstances of the case, act upon the plea as it did not exist.
The case of the complainant that the cheque in question was issued to the him by the accused for the purpose repaying the loan amount advanced by the former to the latter CC No. 626528/16 Manjeet Singh Vs. Sunipan Ghosh Page No. 14/15 is unworthy of credit and fails to inspire the confidence of the court. Thus, it can be clearly said that the accused has rebutted the presumption raised under section 139 of NI Act. Consequently, it can be said that no legal liability exists in favour of the complainant, thus, the second ingredient to the offence under section 138 of NI Act does not stands proved.
CONCLUSION:
17. To recapitulate the above discussion, the accused has been successful in establishing a probable defence on a standard of preponderance of probabilities to rebut the presumption under section 118 and 139 of the NI Act by punching the holes in the case of the complainant and making the case of the complainant doubtful. Cogent evidence is required to be proved beyond reasonable doubt to secure conviction in a criminal trial. The accused has been successful in establishing a probable defence by way of pointing out the material inconsistencies in the case of the complainant and thereby proving that the cheque was not given in discharge of legal debt or liability owed to the complainant. In the result of the analysis of the present case, the accused Sunipan Ghosh is hereby acquitted of the offence punishable under Section 138, Negotiable Instruments Act, 1881.
Announced in the open Court (ANKIT MITTAL) on 6th December,2021. M.M.04/N.I.Act/SouthEast,Saket/Delhi 06.12.2021 Digitally signed by ANKIT ANKIT MITTAL Date:
MITTAL 2021.12.06
16:17:56
+0530
CC No. 626528/16 Manjeet Singh Vs. Sunipan Ghosh Page No. 15/15