Delhi District Court
Dev Raj Malik vs . Ashok Kumar 1/18 on 17 October, 2019
IN THE COURT OF SH. ANIMESH BHASKAR MANI TRIPATHI
METROPOLITAN MAGISTRATE, DWARKA COURTS, NEW DELHI
Criminal Complaint No.: 4994880/2016
Dev Raj Malik ......... Complainant
Versus
Ashok Kumar ......... Accused
1. Name & address of the complainant : Dev Raj Malik
S/o Sh. Bhale Ram Malik
R/o H.No. 110, RBlock,
New Roshanpura, Najafgarh,
New Delhi110043.
2. Name & address of the accused : Ashok Kumar
S/o Sh. Khazan Singh
R/o H.No. 3, D.R. Block,
Ration Office Road, Najafgarh,
New Delhi110043.
3. Offence complained of : U/S 138, The Negotiable
Instruments Act,1881.
4. Plea of accused : Pleaded not guilty.
5. Final order : Convicted
6. Date of Institution of case : 06.04.2016
7. Date of decision of the case : 17.10.2019
Dev Raj Malik Vs. Ashok Kumar 1/18
JUDGEMENT
1. Vide this judgement, I shall dispose of the aforementioned complaint case filed by the complainant, Dev Raj Malik(hereinafter referred to as the 'complainant') against accused,Ashok Kumar (hereinafter referred to as the 'accused').
2. Factual Matrix: The complainant's case is that on 18.10.2015 accused had taken a loan of Rs. 5,00,000/ from the complainant for his personal purpose for a period of two months, but despite best efforts of the complainant, the accused failed to make the said payment.
2.1. To discharge the liability, the accused tendered one cheque amounting to Rs. 5,00,000/ bearing no. 640707 dated 18.12.2015 drawn on Punjab Sind Bank, Old Roshanpura, Najafgarh New Delhi (hereinafter referred to as the 'cheque in question') in favour of the complainant with the assurance that the same will be honoured. Upon presentation whereof, however, the same got dishonoured and was returned to the complainant vide return memo dated 19.01.2016 with the remarks "Kindly contact drawer". The complainant thereafter, sent a legal demand notice dated 15.02.2016 to the accused calling upon him to repay the loan amount within fifteen days of the receipt thereof.
2.2. However, the accused did not come forward to repay his debt within the prescribed period of fifteen days. Hence, being aggrieved, the complainant filed the present complaint under section 138 of The Negotiable Instruments Act, 1881 on 05.04.2016.
2.3. The complainant has averred that the complaint is within the period of limitation as is prescribed under section 138 read with section 142 of The Negotiable Instruments Act, 1881 and the same falls within the territorial limits of this Court; thus, Dev Raj Malik Vs. Ashok Kumar 2/18 being tenable at law.
3. Prayed for: As relief, the complainant has sought that the accused be summoned, tried and punished under section 138 of The Negotiable Instruments Act, 1881.
4. Presummoning evidence: To prove his case prima facie, the complainant led the presummoning evidence under section 200 of the Cr.P.C. by way of an affidavit which is Ex. CW1/1 wherein the complainant avouched the same facts as are averred in the complaint.
5. Documentary evidence: To prove the above claims, the complainant has filed the original cheque in question is Ex. CW1/A, the cheque return memo in respect of the cheque in question is Ex. CW1/B. The legal demand notice sent to the accused by the complainant is Ex. CW1/C and the postal receipt qua the same is Ex. CW1/D and lastly Ex. CW1/E is the tracking report.
6. Summoning of accused: The learned predecessor court was pleased to summon the accused after hearing the arguments at the stage of presummoning vide order dated 31.01.2017.
7. Notice: Framed under section 251 Cr.P.C. against the accused pursuant to arguments being advanced on the point of consideration thereof by the court on 24.10.2017. The substance of accusation was read over and explained to the accused and after being satisfied that the accused comprehended the same, the court recorded his plea.
8. Plea of the accused: The accused pleaded not guilty and claimed trial. He stated in his defence that he had taken a loan of Rs. 3,50,000/ on installments in the year 2008 and 2009 from the complainant. He further stated that he had already repaid the entire loan amount and he had given the cheque in question as security which has been misused by Dev Raj Malik Vs. Ashok Kumar 3/18 the complainant. He further stated that he owe no liability towards the complainant. . He stated that he know the complainant. The accused admitted his signatures on the impugned cheque and claimed that he has only filled the amount in figure and words. Lastly, he refused to receive the legal demand notice.
9. Subsequently, the accused filed an application under Section 145(2) of the NI Act wherein the accused alleged that he and complainant are neighbour and known to each other since long. Accused stated that he had taken a loan of Rs. 3,50,000/ in installments from the complainant. Accused further stated that in 2012, a compromise was made between the parties thereby acused had paid a huge amount to the complainant (principal loan amount with interest), but unfortunately he misplaced the said written compromise. Accused further stated that the cheque in question along with other cheques taken by teh complainant for security purpose of said loan from the accused. The accused further stated that he has no liability towards the complainant. In application under section 145(2) of the NI act, the accused has deviated a bit from the plea of defence taken at the time of framing of notice under section 251 of the Cr.P.C. Lastly the accused has also mentioned that he has not received any legal notice.
10. Evidence of the complainant: To prove his case, the complainant adopted his presummoning evidence as postsummoning evidence and got himself examined as CW1. He was subjected to crossexamination at length by the counsel for Accused and finally the cross examination of the complainant was closed on 31.05.2019 and the complainant closed his evidence the very same day.
11. Examination of the accused under section 313 Cr.P.C.: The accused was examined under section 313 Cr.P.C. on 23.08.2019 wherein he had taken a loan of Rs. 3,50,000/ from the complainant in the year 20082009 and he had repaid the loan on 09.07.2012 to the tune of Rs. 10,50,000/. Denying his liability, the accused denied filling the particulars therein but accepted his signature and amount written in the cheque.
Dev Raj Malik Vs. Ashok Kumar 4/18
12. Defence Evidence: The accused had not lead DE. Hence, DE was closed on 23.08.2019. Thereafter, the matter was fixed for final arguments.
13. granted a friendly loan to the accused and the repayment of the loan of Rs. 3,50,000/ has not been proved by the accused and infact accepted the friendly relationship with the complainant. Learned counsel further contended that the version of the accused has not been substantiated by any evidence to stand up for and bolster the same. Learned counsel asserted that the documents filed by the complainant have been duly proved and have not been impeached by the defence. He further argued that the plea of defence of the accused is far from the touchstone of preponderance of probabilities. The complaint, being within limitation, has been successfully proved by the complainant against the accused beyond reasonable doubt. Accordingly, learned counsel prayed that the accused be convicted for the offence under section 138 NI Act.
14. Per contra, learned counsel for the accused, argued that the accused owes no legal liability towards the complainant. He further argued that the cheque has been misused by the complainant as the same was never given as security cheque when the accused had taken Rs. 3,50,000/ loan which has been duly paid. He challenged the financial capacity of the complainant and pointed out various infirmities in the testimony of the complainant. Accordingly, he submitted that the complaint being a false one, the accused is entitled to be acquitted.
15. I have heard both the learned counsel, perused the material on record and considered the submissions advanced.
16. Appreciation of evidence and finding: Now coming to the merits of the case, I first deem it pertinent to enunciate the law relating to dishonour of cheque.
17. To bring home a liability under section 138 of The Negotiable Instruments Act, 1881, following elements must spring out from the averments in the complaint and the Dev Raj Malik Vs. Ashok Kumar 5/18 evidence adduced by the complainant, viz,
a) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability;
b) cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier;
c) That cheque has been 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;
d) The payee or the holder in due course of the cheque has made 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 the bank regarding the return of the cheque as unpaid; and
e) 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.
18. Being cumulative, it goes without saying that 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 Act.
19. Having said that, it becomes imperative to mention section 139 of The Negotiable Instruments Act, 1881 which carves out a presumption in favour of the drawee Dev Raj Malik Vs. Ashok Kumar 6/18 that the cheque was issued to him in discharge of a debt or other liability of a legally enforceable nature. Also, the said provision must be read along with the section 118 of the same enactment which spells out another presumption in favour of the drawee that every negotiable instrument was 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.
20. Having said that, what follows from the above is that the web of proof in a trial under section 138 NI Act is structured on the premise of the reverse onus of proof theory since the offence is a document based technical one. The journey of evidence in a trial under section 138 NI Act thus, begins not from the home of the prosecution story but from the point of the defence. The presumptions carved out in favour of the complainant are those of law and not those of fact. The court is obligated to draw presumptions and only when the contrary are proved by the defence, the same will be said to be rebutted. Whereas the standard of proof remains the same in such a trial, the reverse onus of proof on the defence is guided by the principle of preponderance of probabilities only. As rebuttal evidence, the accused merely has to prove that the cheque was not given for any consideration or that there was no legal liability in existence against him for which the negotiable instrument was given.
21. In this regard, reliance can be placed on Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 SCC 16 wherein it was held as under:
"22. Because both Sections 138 and 139 require that the Court `shall presume' the liability of the drawer of the cheques for the amounts for which the cheques are drawn, ..., it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption has been established. It introduces an exception to the general rule as to the burden Dev Raj Malik Vs. Ashok Kumar 7/18 of proof in criminal cases and shifts the onus on to the accused (...). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court may presume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged 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 or fact unless the accused adduces evidence showing the reasonable probability of the nonexistence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exists, the discretion is left with the Court to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man."
22. Since criminal liability can be attached by proving each element of the section under which liability is sought to be enforced, I shall now go on to appreciate the evidence Dev Raj Malik Vs. Ashok Kumar 8/18 documentary and oral, in light of how compellingly it satisfies each of such ingredient, if at all.
A. A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability:
23. The first condition pertains to the issuance of the cheque in question to make the payment from an account maintained by the drawer of the cheque towards a legally enforceable debt or other liability. In the present case, the accused has not denied the issuance of the cheque in question in favour of the complainant, rather the accused has put forth the defence that accused had taken a blank signed cheque at the time of advancing loan of Rs. 3,50,000/ and now misusing the same for the purpose of harassing the accused. The accused has denied the fact that the cheque was issued towards discharging any legal liability and has asserted that the same was given to the complainant as security cheque. However, the accused has admitted that the impugned cheque was signed and amount in words & numericals were written by him before handing it over to the complainant.
24. The factor that renders this defence version bizarre and suspicious is that the accused has brought forth not even an iota of evidence to pillar his defence. It is in this regard pertinent to mention that the accused has not denied the liability of friendly loan advanced to him by the complaint, in fact the accused has accepted the loan but questioned the quantum of loan and repayment of the same. Accused has averred that he had taken a loan of Rs. 3,50,000/ but returned the loan with interest to the tune of Rs. 10,50,000/. Accused has stated that he has returned the said taken loan of Rs. 3,50,000/ and thus owe no liability towards the complainant. Interestingly, nothing has been adduced on behalf of the accused to prove this fact of repayment of the loan.
25. Section 103 of the Indian Evidence Act, 1872 enunciates that the person who Dev Raj Malik Vs. Ashok Kumar 9/18 asserts a fact must prove the same unless the law otherwise provides. In the present case, the onus to prove that the accused has returned the said loan and nothing remains to be paid to the complaint, rested on accused. The accused has failed to bring on record any evidence that can satisfy the factum of repayment. The only recourse Accused took to prove his case is by crossexamination of the complainant. It will be pertinent to point out that accused has pointed out infirmities in the crossexamination of the complainant to the effect of non disclosure of the said loan in the ITR. Further, the accused has also pointed out certain inconsistencies in the statements of the complainant. However, the same are not close to rebutting the presumption as to loan being not legally recoverable or that the impugned cheque was never issued for the liability alleged by the complainant. The accused has also, not been able to bring out the fact of repayment of the loan in the crossexamination. It will be utter disregard to the established principles of evidence, if this court accepts the suggestions of the accused during the crossexamination of the complainant, devoid of any documentary evidence to concretize the proof. The story of accused, in the absence of any credible evidence, cannot be taken as a gospel truth.
26. For the sake of argument if one were to assume that the cheque in question was in fact, given for the purpose alleged by the accused, then two pertinent questions may take birth out of reasonability one, why did the accused not send a written notice to the complainant to demand the cheque back from him when accused has repaid the amount the loan amount to the tune of Rs. 10,50,000/ especially when the accused claims the loan to be taken, as back as 1517 years ago. Throughout the course of trial, the accused did not whisper anything about the recourse he took to procure back the security cheque. Merely stating that the entire transaction took place in good faith and the complainant kept the custody of cheques shall not suffice either to obscure the story put forth by the prosecution or to cause the probabilities to lie in one's favour.
27. The second question that would surface from the womb of reasonability is that why did the accused not file any complaint either with his bank or with the police in order to ensure that the cheque was not misused, more so, when the loan so taken was duly repaid Dev Raj Malik Vs. Ashok Kumar 10/18 by the accused. The failure to lodge/file any complaint further causes dubiety to lurk around the story of the defence. Though the accused has certainly averred about one compromise deed entered between accused and the complainant, but yet again the accused has failed to bring on record the same. Mere averment by the accused that the compromise deed was lost does not suffice the requirement to disprove the liability. An adverse inference can safely be drawn against the accused who has otherwise failed to adduce any credible evidence to show that he indeed did everything within his power and control, as a prudent person would do, to ensure that the cheque tendered by him was not misused. Failure of the accused to prevent such alleged misuse, when he had the knowledge that the same can be misused by the complainant renders the defence evidence weak.
28. Reliance can profitably be placed on the judgment pronounced by the Hon'ble Parent High Court in V.S. Yadav v. Reena CRL. A. NO. 1136 Of 2010 wherein it was held that:
"Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to rebutting the presumption raised under Section 139 of N.I. Act. If mere statement under Section 313 Cr. P.C. or under Section 281 Cr. P.C. of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/ prosecution, then every accused has to be acquitted. But, it is not the law. In order to rebut the presumption under Section 139 of N.I. Act, the accused, by cogent evidence, has to prove the circumstance under which cheques were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque. Unless the accused had proved that he acted like a normal businessman/prudent person entering into a contract he could not have rebutted the presumption u/s 139 N.I. Act.
Dev Raj Malik Vs. Ashok Kumar 11/18 If no loan was given, but cheques were retained, he immediately would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant. Nothing was proved in this case."
29. Now that the defences taken by the accused stand beseeched, let us examine the potentiality of the prosecution story. The complainant's story is that he granted a friendly loan of Rs. 5,00,000/ to the accused and the latter issued the impugned cheque in his favour to repay the said loan. The record complainant has brought to substantiate his point are the Cheque in question, Ex Cw1/A, bearing the signatures of accused along with the cheque retuning memo, Ex Cw1/B, which further establishes the facts so claimed by the complained. The accused did not bring any evidence to impeach the credibility of the said document, rather accused agreed on the point of having signed the Cheque voluntarily and the fact that loan was indeed taken though not for the amount as claimed by the Complainant. It is matter of the fact that complainant has not build up his theory by bringing any other documentary proof, apart from the cheque in question and cheque return memo along with legal notice, of advancing loan to the accused. But the fact that accused, in his defence, has accepted the factum of loan advanced by the complainant not only provides pillar to the arguments of complainant, further it fills in the loopholes that plagued the complainants facts.
30. The burden lied heavily on the accused to have probablised the factum of repayment of the loan. It is not the case of the accused that the complainant obtained his signatures under duress or by exerting undue influence. It is further not the case of accused that the complaint did not advance any loan to the accused. He claimed that loan was advanced by the complainant, but the loan amount was Rs. 3,50,000/ and the same has been repaid to complainant. It is pertinent to mention, that though accused has claimed to have taken loan of Rs. 3,50,000/, however he has no where mentioned the fact as to why he issued the security for Rs. 5,00,000/. The accused has admitted the fact of filling the Dev Raj Malik Vs. Ashok Kumar 12/18 amount of Rs. 5,00,000/ in the impugned cheque in Notice of accusation and statement u/s 313 Cr.P.C, but accused had failed to prove the reason of filling 5,00,000/ when the loan was taken for Rs. 3,50,000/.
31. Additionally, the accused has averred that he has signed the impugned cheque and filled in the amount but not filled the particulars. The fact that accused gave a blank signed cheque to the complainant and the particulars were not filled by him does not dilute the liability of the accused as the legal position on inchoate instruments is well settled. Section 20 of the NI Act provides that if a person signs and delivers a paper stamped in accordance with the loan 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, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp. In Ravi Chopra v. State and others [2008 (102) DRJ 147], the Hon'ble High Court of Delhi has been held that if a blank signed cheque is given then it is possible that the drawer has consented impliedly or expressly to filling up of the cheque by the payee on a later date.
32. Also, in the case of K. Bhaskaran vs. Sankaran Vaidhyan Balan [1999 (4) RCR (Criminal) 309], it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
33. Learned counsel for the accused pointed out certain discrepancies in the testimony of the complainant and inter alia challenged the financial potentiality to advance Dev Raj Malik Vs. Ashok Kumar 13/18 the loan in question to the accused. He argued that in light of such infirmities, the accused has punctured the case of the prosecution and hence, rebutted the statutory presumptions. The complainant did not disclose the factum of advancement of loan in question in his ITR specifically yet such factor alone cannot be enslaving enough to shroud the prosecution story with a fog of murkiness. Only an adverse inference can be drawn against the complainant if he has not disclosed the name of the debtor in her ITR but if the attending circumstances are of such a nature as would unflinchingly incriminate the accused, then the prosecution case shall not collapse merely because the complainant has not disclosed the name of the accused as a debtor in her ITR. Also, the complainant shall face the music if an action is taken by the Income Tax department but it shall not be a factor disentitling the complainant to a relief he has claimed in the present case.
34. Therefore, considering the weight of the attending circumstances viz, the consistency in the prosecution story, the compelling documentary evidence adduced by the complainant and lastly, that the accused has not proved his defence to cause the probabilities to lie in his favour, the first element of section 138 NI Act stands assembled.
B. That cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier:
35. As far as this condition is concerned, the same is satisfied upon the perusal of the cheque in question, Ex. CW1/A dated 18.12.2015 and the return memo Ex CW1/B which is dated 09.01.2016, thus, being presented within prescribed period of limitation of three months. The defence did not to adduce any evidence whatsoever to contradict the same.
C. That cheque has been 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:
Dev Raj Malik Vs. Ashok Kumar 14/18
36. Section 146 of The Negotiable Instruments Act, 1881, in this regard comes into play which raises a presumption that the court shall presume the fact of dishonour of the cheque in case the cheque is returned vide a return memo having thereon the official mark denoting that the cheque has been dishonoured. Such bank slip or memo is a prima facie proof of dishonor. At the cost of repetition, the defence has failed to rebut the said presumption as well. Hence, the condition is fulfilled.
37. Further with respect to the remark 'kindly contact drawer', the Hon'ble Supreme Court in in Laxmi Dychem Vs. State of Gujarat (SLP No. 17401779 of 2011) has amply made it clear that that in banking parlance the reasons "Refer to Drawer" when cheques are returned unpaid is used generally for returning the cheque for want of funds in the drawer's account or because of service of a garnishee order.
D. The payee or the holder in due course of the cheque has made 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 the bank regarding the return of the cheque as unpaid:
38. As far as the making of demand by sending a legal notice is concerned, the complainant had sent the same, Ex. CW1/C, to the accused. The accused has denied the receipt of such notice. From perusal of record, it is evident that the address mentioned in the legal notice is identical to one informed by the accused during framing of notice. Furthermore, section 27 of the General Clauses Act provides that service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document unless the contrary is proved. A like presumption is also carved out under section 114 Indian Evidence Act, 1872 which when applied to communications sent by post, enables the court to presume that in the common course of natural events, the Dev Raj Malik Vs. Ashok Kumar 15/18 communication would have been delivered at the address of the addressee. Since these presumptions have also not been rebutted by the accused, the same stand and go in favour of the complainant.
39. Reliance can be placed on the judgment passed by the Hon'ble Apex Court in Alavi Haji v. Palapetty Muhammad (2007) 6 SCC 555 wherein it has been held as under:
"Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business."
It was further held that:
"A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act".
Dev Raj Malik Vs. Ashok Kumar 16/18
40. Thus, the fourth condition, to entail liability under section 138 of the Negotiable Instruments Act, 1881, in light of the above cited law and judgments, is fulfilled.
E. 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:
41. The last condition is that the accused fails to make the payment within fifteen days from the date of the receipt of the legal demand notice. In the present case, the accused has evidently failed to make the payment within fifteen days on the pretext that he owes no liability towards the complainant. Thus, the last limb of what will entail the liability against the accused is also structured.
42. Ratio: Since in the instant case, the accused has failed to lead any convincing evidence to aid him in discharge of his onus, the presumption of law operates in favour of existence of debt or liability. I am of the opinion that the defence set up by the accused is neither definitive nor consistent with his innocence. It is the burden of the accused to bring positive evidence, in the wake of denying the liability by bringing evidence showing that accused has no liability towards complainant in the present complaint. It was the sole burden and duty of accused to prove absence of liability by raising a ''probable'' defence.
However, he has failed to discharge his onus. Except for making bare averments, accused has not led any cogent evidence which could be termed as a probable defence. It is pertinent to note that though accused has taken multiple defences, but as discussed above, none of them have raised a probable defence in his favor.
43. Having considered the entire evidence, I am of the opinion that the complainant has successfully proved all the essential ingredients of Section 138 of the Act. Accordingly, accused Ashok Kumar found guilty of offence u/s 138 NI Act.
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44. Let he be heard on point of sentencing on another date.
45. Let the copy of this judgment be given to the convict free of cost.
46. A copy of the order be sent to District Courts website. ANIMESH Digitally signed by ANIMESH BHASKAR BHASKAR MANI TRIPATHI MANI Date: 2019.10.18 TRIPATHI 15:55:32 +0530 Announced in the open court on Animesh Bhaskar Mani Tripathi 17.10.2019 MMNI Act 02, SW/Delhi Dev Raj Malik Vs. Ashok Kumar 18/18