Delhi District Court
Cc Ni Act No. 7015/2021 Sushil vs . Ajim Khan Page No.1 Of 17 on 30 May, 2023
IN THE COURT OF MS. EBBANI AGGARWAL
LD. MM (NI ACT), DIGITAL COURT-09, SOUTH-WEST,
DWARKA COURT, NEW DELHI
DLSW020161372021
SUSHIL
S/o Late Sh. Harbans Lal
Proprietor of Sushil Battery
R/o E-8, Shop No.1, Ram Dutt Enclave
Uttam Nagar
New Delhi - 110059 ......... Complainant
VERSUS
AJIM KHAN
S/o Sh. Yasim Khan
Proprietor of Ganga E Rickshaw Battery
R/o Plot No. 5, WZ 101-A Ravi Nagar,
Near Shiv Shakti Mandir, Chowkhandi
B- Block, Delhi - 110018 ............. Accused
Complainant Case no. 7015/2021
CNR No. DLSW020161372021
Title Sushil v. Ajim Khan
Name of Complainant Sushil
Name of Accused Ajim Khan
Date of Institution of 18.03.2021
Complaint
Date of Final Arguments 24.05.2023
Date of Pronouncement of 30.05.2023
Judgment
Offence Involved Section 138 NI Act
Plea of the Accused Pleaded not guilty
Final order Acquitted
Digitally signed
EBBANI byAGGARWAL
EBBANI
CC NI ACT No. 7015/2021 Sushil vs. Ajim Khan Page No.1 of 17
AGGAR 2023.05.30
Date:
WAL 14:59:36
+05'30'
JUDGMENT
1. Present complaint has been filed by complainant alleging an offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the "NI Act").
2. Facts, in brief, as alleged in the complaint are that complainant is engaged in business of batteries under name "Sushil Batteries" and accused in also engaged in similar business under name "Ganga E-Rickshaw Battery" and both of them have been involved in regular business transactions. Accused had purchased E-batteries worth Rs. 12,70,485/- from complainant and has already made payment of around Rs. 9,59,290/- and in partial discharge of his legally enforceable debt, accused issued cheque bearing no. 070197 dated 23.01.2021 for a sum of Rs. 2,00,000/- (Ex. CW-1/1) (hereinafter referred to as the "cheque-in-question") which got dishonoured with remarks "Funds Insufficient" vide return memo dated 27.01.2021 (Ex. CW-1/2). Complainant then sent a legal demand notice dated 17.02.2021 (Ex. CW- 1/3) to accused calling upon him to make the payment of cheque amount within the statutory period of 15 days. However, accused did not make the payment of amount in question and hence, present complaint alleging an offence under Section 138 of the NI Act was instituted by complainant.
APPEARNCE OF ACCUSED AND FRAMING OF NOTICE
3. This court took cognizance of offence under Section 138 of the NI Act vide order dated 27.09.2021, accused was summoned and thereafter, accused entered appearance EBBANI Digitally by EBBANI signed CC NI ACT No. 7015/2021 Sushil vs. Ajim Khan Page No.2 of 17 AGGAR Date:
AGGARWAL WAL 2023.05.30 14:59:57 +05'30' before this Court on 29.01.2022. Notice as per mandate of Section 251 of Code of Criminal Procedure, 1973 (hereinafter referred to as the "Cr.P.C.") was framed against the accused wherein accused pleaded not guilty and claimed trial. Accused did not deny his signatures on the cheque-in- question and has also stated that he knows the complainant. In his plea of defence, the accused has stated that he had taken batteries from complainant which were valued at around Rs. 1,20,000/- on credit basis and at that time, he had handed over present cheque-in-question as security. Accused further stated that he has paid back around Rs. 35,000/- to complainant and that he is still willing to pay the balance amount. Accused has further stated that he does not owe Rs. 2,00,000/- to complainant which is the amount of the cheque-in-question and has also stated that his security cheque is being misused.
COMPLAINANT'S EVIDENCE
4. Complainant examined himself as CW-1 who tendered his affidavit of evidence and in proof of its case, the complainant has relied upon the following documents:
(i) Ex. CW-1/1: Cheque in question bearing no. 070197 dated 23.01.2021 for a sum of Rs. 2,00,000/-
(ii) Ex. CW-1/2: Return memo dated 27.01.2021.
(iii) Ex. CW-1/3: Legal Demand Notice dated 17.02.2021.
(iv) Ex. CW-1/4: Postal receipt of legal demand notice.
(v) Ex. CW-1/5: Courier receipt of legal demand notice.
(vi) Ex. CW-1/6: Tracking report of courier.
(vii) Ex. CW-1/7: GST invoice dated 20.03.2020. EBBANI Digitally signed by EBBANI AGGAR Date:
AGGARWAL CC NI ACT No. 7015/2021 Sushil vs. Ajim Khan Page No.3 of 17 2023.05.30 WAL 15:00:15 +05'30'
(viii) Mark-A: Stock Register Admission-Denial of documents in terms of Section 294 of Cr.P.C. was also recorded wherein accused has not disputed the genuineness of cheque-in-question, i.e., Ex. CW-1/1 as well as the bank return memo, i.e., Ex. CW-1/2. Accused, thereafter, moved an oral application under Section 145(2) of NI Act which was allowed, and complainant was cross-
examined.
5. In his cross-examination, complainant, CW-1, has taken a similar stand as has been averred in the complaint and has deposed that he knows the accused since last six to seven years and that he is engaged in regular business transactions with accused. Complainant further deposed that he saw the shop of accused in market where he approached accused for the purpose of business and that he was engaged in regular business transactions with accused even after the issuance of the cheque-in-question. Complainant further deposed that accused has paid around Rs. 6,000/- to him by way of PayTM, however, the said payment was with respect to a kachcha bill. Complainant further deposed that GST invoice (Ex. CW-1/7) and stock register (Mark-A) have not been signed by accused. Complainant further deposed that accused had informed him about some defects in goods which he had supplied and that he had got the defective goods replaced. Complainant further deposed that present cheque-in-question was issued by accused with respect to his liability against GST invoice Ex. CW-1/7. Complainant further deposed that accused had made payment of Rs. 6,000/- to him after the date of GST invoice and that accused had made one more payment to him after the date of GST EBBANI Digitally by EBBANI signed CC NI ACT No. 7015/2021 Sushil vs. Ajim Khan Page No.4 of 17 AGGAR Date:
AGGARWAL WAL 15:00:25 +05'30' 2023.05.30 invoice, however, he does not remember the exact amount or date when he received the payment. Complainant further deposed that accused has a liability of Rs. 3,11,000/- towards him. Thereafter, complainant was confronted with bank account statement of accused which is Ex. CW- 1/X/D-1 wherein complainant has admitted receipt of Rs. 12,000/- on 11.06.2020, Rs. 6,000/- on 16.06.2020, Rs. 6,500/- on 19.06.2020 and Rs. 10,000/- on 29.09.2020 from accused.
Complainant did not examine any other witness and CE was closed.
STATEMENT OF ACCUSED UNDER SECTION 313 R/W 281 Cr.P.C.
6. Thereafter, all incriminating piece of evidence were put to accused and his statement in terms of Section 313 r/w Section 281 of Cr.P.C. was recorded wherein accused has reiterated the stand taken by him in Notice under Section 251 of Cr.P.C. and has stated that he taken batteries from complainant on credit basis for a sum of Rs. 1,20,000/- and at that time, he had handed over present cheque-in-question as a blank signed security cheque. Accused further stated that he has already paid back around Rs. 35,000/- to complainant and that he does not have a liability of cheque amount, i.e., Rs. 2,00,000/- towards the complainant. Accused further stated that his security cheque is being misused and that he does not have anything to say about GST invoice (Ex. CW-1/7) and stock register (Mark-A) as these documents belong to complainant. In the said EBBANI Digitally signed by EBBANI CC NI ACT No. 7015/2021 Sushil vs. Ajim Khan Page No.5 of 17 AGGAR AGGARWAL Date: 2023.05.30 WAL 15:00:41 +05'30' statement itself, accused opted not to lead DE and the matter was listed for final arguments.
FINAL ARGUMENTS
7. Ld. Counsel for complainant has reiterated the averments made in the complaint in his arguments and he has further argued that all the statutory requirements for an offence under Section 138 of the NI Act are met with in the present complaint and that complainant has been able to prove his case beyond reasonable doubt. Ld. Counsel for complainant has further argued that accused and complainant were involved in regular business transactions and that complainant has not received any money from accused qua the liability as per the GST tax invoice in furtherance of which the cheque-in-question was issued by the accused. Ld. Counsel for complainant has further argued that present cheque-in-question was issued by accused in partial discharge of his total legal liability of Rs. 3,11,000/-. Ld. Counsel for complainant has further argued that accused has admitted his signatures on the cheque-in-question and that presumption under Section 139 of the NI Act exists in favour of the complainant and that in view of the same, accused be convicted for offence under Section 138 of the NI Act.
8. Per Contra, Ld. Counsel for accused has argued that accused does not have a legal liability of cheque amount towards the complainant. Ld. Counsel for accused has further argued as per the GST invoice the liability of accused is of Rs. 1,20,000/- and that accused has made payment of around Rs. 34,000/- to complainant after the EBBANI Digitally by EBBANI signed CC NI ACT No. 7015/2021 Sushil vs. Ajim Khan Page No.6 of 17 AGGAR Date:
AGGARWAL WAL 2023.05.30 15:00:51 +05'30' date of GST invoice which has also been admitted by the complainant. Ld. Counsel for accused has further argued that accused did not make the balance payment to complainant as the batteries provided by complainant were defective and that complainant had not replaced the defective batteries. Ld. Counsel for accused has further argued present cheque-in-question was handed over by accused as a blank signed security cheque which is now being misused. Ld. Counsel for accused has further argued that accused did not receive legal demand notice from complainant. Ld. Counsel for accused has further argued accused has been able to rebut the presumption, has been able to establish his defence and that accused be acquitted for offence under Section 138 of the NI Act.
LEGAL POSITION
9. Before proceeding to decide the case on merits, it is imperative that position of law with respect to an offence under Section 138 of the NI Act is discussed.
10. Section 138 of the NI Act reads as under:
"138. Dishonour of cheque for insufficiency, etc., of funds in the account. -- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which EBBANI Digitally signed by EBBANI CC NI ACT No. 7015/2021 Sushil vs. Ajim Khan Page No.7 of 17 AGGAR AGGARWAL Date: 2023.05.30 WAL 15:01:11 +05'30' may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and;
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation. -- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."
11. In order to constitute an offence under Section 138 of the NI Act the following ingredients must be fulfilled:
(i) Cheque must be drawn on an account maintained by drawer for discharge of a legally enforceable debt either in part or whole.
(ii) Cheque must be validly presented for encashment, i.e., must be presented within validity period or within 3 months from date of issuance whichever is earlier.
(iii) Cheque must be returned back unpaid with remarks funds insufficient or exceeds the amount arranged for.
(iv) A legal demand notice in writing must be issued by payee or holder in due course, within 30 days of receipt of information regarding dishonour of cheque, calling upon the drawer to make the payment of EBBANI Digitally by EBBANI signed CC NI ACT No. 7015/2021 Sushil vs. Ajim Khan Page No.8 of 17 AGGAR AGGARWAL Date:
2023.05.30 WAL 15:01:01 +05'30' amount in question within 15 days of receipt of legal demand notice.
(v) Drawer fails to make the payment of amount in question within 15 days of receipt of legal demand notice.
12. Section 139 of the NI Act is a reverse onus clause which was added to the statute book in order to increase the credibility of cheque/negotiable instruments as a mode of payment. Section 139 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 nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
13.Nature and scope of presumption under Section 139 of the NI Act has been dealt in a catena of judgments. In case Rangappa v. Sri Mohan, (2010) 11 SCC 441, Hon'ble Supreme Court has further held as under:
"27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard or proof.
EBBANI Digitally signed CC NI ACT No. 7015/2021 Sushil vs. Ajim Khan Page No.9 of 17 by EBBANI AGGAR AGGARWAL Date: 2023.05.30 WAL 15:01:25 +05'30'
28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
14. In Basalingappa vs Mudibasappa, [(2019) 5 SCC 418] (hereinafter referred to as Basalingappa Case), certain principles regarding rebuttal of presumption under Section 139 of the NI Act has been laid down which are as under:
25. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in 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 the 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 support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
EBBANI Digitally signed by EBBANI CC NI ACT No. 7015/2021 Sushil vs. Ajim Khan Page No.10 of 17 AGGAR AGGARWAL Date: 2023.05.30 WAL 15:01:37 +05'30' 25.5. It is not necessary for the accused to come in the witness box to support his defence."(Empahsis supplied)
15. Section 139 thus creates a rebuttable presumption in favour of complainant which casts an onus on accused to rebut the same on basis of preponderance of probabilities. It is not necessary that accused enters the witness box himself for this purpose, however, making of bare averments is not enough and some proof has to be adduced by accused either from the material which is already available on record or by leading cogent evidence in support of his defence.
ANALYSIS ON MERITS
16. Position of law being as above, it becomes imperative to examine as to whether complainant has been able to establish the basic ingredients for commission of offence under Section 138 of the NI Act and if the complainant succeeds in same, whether accused has been able to rebut the presumption drawn under Section 139 of the NI Act or not.
17. In the case at hand, accused has admitted his signatures on the cheque-in-question, therefore, a presumption exists in favour of complainant under Section 139 of the NI Act which includes the presumption that cheque-in-question was issued in discharge of a legally enforceable debt. [Reliance has been placed on Basalingappa Case (supra)]
18. With respect to the essential ingredients of Section 138 of the NI Act, it can be seen from record that the cheque in question Ex. CW-1/1 was presented within three months from the date of issuance viz 23.01.2021 and the same was dishonoured with remarks "Funds Insufficient" vide return CC NI ACT No. 7015/2021 Sushil vs. Ajim Khan Page No.11 of 17 EBBANI Digitally signed by EBBANI AGGAR AGGARWAL Date: 2023.05.30 WAL 15:01:49 +05'30' memo dated 27.01.2021 Ex. CW-1/2. Legal Demand Notice dated 27.02.2021 Ex. CW-1/3 was sent to the accused, i.e. within 30 days of dishonour and the said legal demand notice was delivered upon the accused. Postal receipts Ex. CW-1/4, courier receipt Ex. CW-1/5, tracking report of courier Ex. CW-1/6 have also been furnished by complainant. Thereafter, the present complaint was filed within the prescribed period of limitation, i.e., on 18.03.2021. Further, the accused has admitted his signatures on cheque-in-question in the Notice framed against him under Section 251 Cr.P.C. and therefore, it can be inferred that cheque-in-question was issued from an account maintained by the accused himself.
19. In view of the foregoing discussion and presumption under Section 139 of the NI Act drawn in favour of complainant, complainant has been able to establish basic ingredients for commission of offence under Section 138 of the NI Act. The onus is now on accused to rebut this presumption drawn against him on basis of preponderance of probabilities.
20. It has been argued by Ld. Counsel for accused that accused did not receive the legal demand notice, however, the tracking report of courier (Ex. CW-1/6) shows that legal demand notice was delivered. It is pertinent to mention here that accused appeared before this court after summons were duly served to the accused on the same address on which the legal demand notice was sent.
Further, in the case of C.C Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555, Hon'ble Supreme Court of India has held as under:
EBBANI Digitally signed by EBBANI AGGAR AGGARWAL Date: 2023.05.30 CC NI ACT No. 7015/2021 Sushil vs. Ajim Khan Page No.12 of 17 WAL 15:02:02 +05'30' "...an accused who has not received the legal demand notice cannot claim the benefit of the defence of non-receipt of the same as once summons are served upon him, it is the duty of such an accused to make the payment of the cheque in question within 15 days of receiving summons from the court. Once this option is not availed by him, the benefit of defence of non- service of notice cannot be given to the accused."
In light of the position of law being as above as well as keeping in mind the fact that summons were duly served to the accused on the same address on which the legal demand was sent, presumption of service of legal demand notice as per Section 27 of the General Clauses Act, 1897 operates against the accused and the argument put forward by Ld. Counsel for accused does not hold good in the eyes of law.
21. The central defence of accused is that he does not have a liability of cheque amount, i.e., Rs. 2,00,000/- towards the complainant and that he has made a repayment of around Rs. 35,000/- to complainant which has also been admitted by complainant. As per the version put forward by accused in his defence, he had taken batteries worth Rs. 1,20,000/- from complainant on credit and at that time he had handed over the present cheque-in-question as a blank signed security cheque which is being misused by complainant.
22.In order to substantiate his defence, accused has placed on record his bank account statement, i.e., Ex. CW-1/X/D-1 and during cross examination, complainant (CW-1) was confronted with the said bank account statement of accused. Complainant has admitted receipt of total sum of Rs. 34,500/- in course of four different transactions, i.e., Rs. 12,000/- on 11.06.2020 (mentioned at Point A), Rs. 6,000/- on 16.06.2020 (mentioned at Point B), Rs. 6,500/- on EBBANI Digitally signed CC NI ACT No. 7015/2021 Sushil vs. Ajim Khan Page No.13 of 17 by EBBANI AGGAR AGGARWAL Date: 2023.05.30 WAL 15:02:14 +05'30' 19.06.2020 (mentioned at Point C) and Rs. 10,000/- on 29.06.2020 (mentioned at Point D) from accused.
23.With respect to receipt of the afore-mentioned sum of money from accused, it has been argued by Ld. Counsel for complainant that accused had a total liability of Rs. 3,11,000/- towards complainant and the cheque-in-question was issued by accused qua his liability as per the GST tax invoice dated 20.03.2020 (Ex. CW-1/7) and accused has not paid any amount out of the liability of Rs. 1,20,000/- shown in the GST tax invoice. It is pertinent to mention here that as per the GST tax invoice dated 20.03.2020, liability of accused is of Rs. 1,20,000/- and the payment which the accused has made to complainant on all the four occasions as mentioned at Points A, B, C and D of Ex. CW-1/X/D-1 are post-dated from date of GST tax invoice (Ex. CW-1/7) and therefore, the possibility that accused had handed over the present cheque-in-question to complainant as a blank signed security cheque towards liability of Rs. 1,20,000/- out of which he has already repaid Rs. 34,500/- cannot be ruled out in entirety.
24.It is also the case of the complainant that the accused and complainant were involved in regular business transactions with each other and that the accused had a total liability of Rs. 3,11,000/- and in partial discharge of his legally enforceable debt accused issued present cheque in question. However, in the cross examination, the complainant has taken a stand that the present cheque-in-question was issued by the accused qua the GST tax invoice (Ex. CW-1/7) dated 20.03.2020. On one hand, complainant has taken a stand that present cheque-in-question was issued by accused in EBBANI Digitally by EBBANI signed CC NI ACT No. 7015/2021 Sushil vs. Ajim Khan Page No.14 of 17 AGGAR Date:
AGGARWAL 2023.05.30 WAL 15:02:27 +05'30' partial discharge of his total liability of Rs 3,11,000/- and on the other hand, complainant has deposed that present cheque-in-question was issued qua GST tax invoice. Thus, complainant has been inconsistent in his stand with respect to the liability qua which the accused has issued the present cheque-in-question.
25.In addition to the afore-mentioned contradiction, the GST tax invoice is for a sum of Rs. 1,20,000/- whereas the cheque-in-question of for a sum of Rs. 2,00,000/- and complainant has admitted receipt of around Rs. 34,500/-.
The fact that cheque amount is for an amount which is more than the amount of the GST Tax invoice coupled with the fact that complainant has received a sum of Rs. 34,500/- from accused after the issuance of the GST Tax invoice further substantiates the defence taken by accused that he did not have a liability of cheque amount towards the complainant and that he had a liability of a lesser amount on the date of presentation of the cheque-in-question.
26.In view of the admission on part of complainant regarding receipt of money from accused, contradictions in the stand taken by complainant as well as statement of account of accused, this court is of the opinion that accused has been able to establish his defence on basis of preponderance of probabilities because the possibility that accused only had a liability of Rs. 1,20,000/- towards the complainant out of which he has already repaid around Rs. 35,000/- cannot be ruled out. The defence taken by the accused has been substantiated and is not a mere bald averment.
EBBANI Digitally by EBBANI signed CC NI ACT No. 7015/2021 Sushil vs. Ajim Khan Page No.15 of 17 AGGAR AGGARWAL Date:
WAL 15:02:39 +05'30' 2023.05.30
27.Once the accused has been able to establish his defence on basis of preponderance of probability, benefit of presumption in terms of Section 139 of the NI Act cannot be extended to complainant. In absence of benefit of such presumption, it becomes imperative to examine as to whether complainant has been able to establish existence of a legally enforceable debt of Rs. 2,00,000/- on date of presentation of cheque-in-question beyond reasonable doubt or not.
28.Complainant has placed on record a photocopy of his stock register (Mark - A) to show that complainant and accused were involved in regular business transactions with each other and that accused had a liability of Rs. 3,11,000/- towards the complainant. Perusal of the same shows that excerpt of the stock register which has been placed on record is a photocopy which is not even a certified copy, there is no entry in the entire register to infer a liability of Rs. 3,11,000/- towards the complainant and further, it is a document which is solely maintained by complainant, is neither signed by accused or any other independent witness. In view of the same, stock register (Mark - A) is not a reliable document to confer a liability of Rs. 3,11,000/- upon the accused.
29.This Court is, therefore, of the opinion that complainant has not been able to establish existence of liability of Rs. 3,11,000/- or existence of liability of cheque amount of Rs. 2,00,000/- on date of presentation of cheque-in-question independently on its own legs without the benefit of presumption under Section 139 of the NI Act. However, accused has been able to establish repayment of some EBBANI Digitally by EBBANI signed CC NI ACT No. 7015/2021 Sushil vs. Ajim Khan Page No.16 of 17 AGGAR Date:
AGGARWAL WAL 15:02:51 +05'30' 2023.05.30 amount to complainant, therefore, the liability of accused was of an amount lesser than the amount on the cheque-in- question on the date of presentation of cheque. In view of the same, one of the mandatory requirements for commission of offence under Section 138 of the NI Act have also not been met with. [Reliance has been placed on Dashrathbhai Trikambhai Patel v. Hitesh Mahendrabhai Patel and Anr., (2022) 16 S.C.R 522 wherein it has been reiterated that for the commission of an offence under Section 138, the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation.] CONCLUSION
30.In view of the foregoing facts, arguments advanced by the parties, marshalling of evidence as well as established legal position, this court is of the considered opinion that accused has been able to rebut the presumption under Section 139 of the NI Act and has been able to establish his defence on basis of preponderance of probabilities and complainant has unable to prove its case beyond reasonable doubt. Therefore, this court is of the considered opinion that the accused Ajim Khan s/o Sh. Yasim Khan is not guilty of offence under Section 138 of Negotiable Instruments Act, 1881 and accordingly, is hereby acquitted for offence under Section 138 of Negotiable Instruments Act, 1881.
Digitally signed byEBBANI EBBANI AGGARWAL Announced in open court on 30.05.2023. AGGARWAL Date: 2023.05.30 15:03:05 +05'30' (EBBANI AGGARWAL) MM (NI ACT), DIGITAL COURT-09 SOUTH-WEST DISTRICT, DWARKA COURT NEW DELHI 30.05.2023 CC NI ACT No. 7015/2021 Sushil vs. Ajim Khan Page No.17 of 17