Delhi District Court
S/O Sh. P. P. Madan vs Shamsher Singh Gogi on 10 May, 2012
1
IN THE COURT OF MS. SURABHI SHARMA VATS
MM01 (138 NEGOTIABLE INSTRUMENTS ACT)
PHC, NEW DELHI DISTRICT, NEW DELHI.
(a) Complaint Case No. 187/1/10
(b) Date of Institution 24.03.2009
(c) Date of offence The date on which cheque dishonored.
(d) Complainant Sanjeev Bhatia
S/o Sh. R. P. Bhatia
R/o S. No. 4/40, Street No. 38,
Rehgarg Pura, Karol Bagh, Delhi.
(e) Accused Krishan Madan
S/o Sh. P. P. Madan
R/o D39, Naraina Vihar,
New Delhi110028.
(f) Offence Under Section 138 N.I. Act
(g) Plea of the accused Pleaded not guilty and claimed trial
(h) Argument heard and 02.03.2012 (Case file went to the Ld.
reserve for order Revisionist Court after arguments
were heard and file received back on
23.04.2012)
i) Final order Conviction
(j) Date of Judgment 10.05.2012
JUDGMENT
Brief facts of the case:
1. It is the case of the complainant that the accused has been receiving help from the complainant by taking friendly loan on various occasions for his business purposes and for his personal needs, since the C.C. No.187/1/10 MM01 (138 N.I. Act) : 10.05.2012 2 complainant was having his friendly relations with the accused, he used to advance friendly loan time to time as and when demanded by the accused. It is further stated that the complainant gave friendly loan from time to time to the accused which got accumulated to the tune of Rs. 89,70,000/ and the accused also in turn acknowledged having received the loan amount by duly sworn and attested affidavits, by executing the agreements on various occasions on receiving the friendly loan amount from the complainant. It is further averred that lastly the accused executed a mortgage deed dated 03.11.2008 by mortgaging his self acquired building bearing no. C9, Community Center Janakpuri, New Delhi110058 in the presence of many witnesses acknowledging the receipts of the total amount of friendly loan and also acknowledging the obligation to repay the same.
2. It is further contended that to discharge his part liability, accused issued two cheques bearing no. 781197 and 781200 dated 29.11.2008 and 15.10.2008 for Rs.40,00,000/ and Rs.12,70,000/ respectively both drawn on Standard Chartered Bank, Sansad Marg, New Delhi. The cheques were presented for clearance but the same were returned back for reasons of "Funds Insufficient" and "Unclaimed Account"
respectively vide returning memos dated 27.01.2009 and 24.01.2009 respectively. After the dishonour of the cheques, complainant sent legal notice dated 11.02.2009 of each cheque through his counsel to the accused on his residential address i.e. D39, Naraina Vihar, New Delhi110028 on 11.02.2009 through speed post and UPC informing the accused of dishonour of his cheques, demanding the cheques amount C.C. No.187/1/10 MM01 (138 N.I. Act) : 10.05.2012 3 and calling upon the accused to make payment of the dishonoured cheques within a period of 15 days from the date of the receipt of the said notice as required under law. Despite receiving the legal demand notice, accused had failed to make the payment and then present complaint has been filed under section 138 Negotiable Instrument Act.
3. The Learned Predecessor Court has summoned the accused after taking cognizance and after supplying the documents, a notice under section 251 Cr. P.C. for offence under section 138 Negotiable Instrument Act was served upon accused on 09.11.2009. The accused pleaded not guilty and claimed trial. After completion of Complainant's Post Notice Evidence, statement of the accused was recorded and accused submitted that he does not want to lead evidence in his defence.
4. In his defence, accused has submitted that "These cheques were given as complainant had promised to arrange a loan from banks and was without consideration. Hence it is a false case as no loan was arranged from bank. In fact my bank account was inoperative. I never received any such notice. It is a false case to extort money from me. I am innocent and has been falsely implicated by the complainant in the present case. He has misappropriate the cheques given for arranging loan by complainant from bank."
5. I have heard Ld. Counsel for both the parties and also perused the testimony of witnesses and documents placed on record carefully. Perused written arguments & judgments relied upon by both the counsels.
6. Before proceeding further, this court would like to reproduce C.C. No.187/1/10 MM01 (138 N.I. Act) : 10.05.2012 4 section 138 of the Negotiable Instrument Act.
Section 138 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 provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of 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 C.C. No.187/1/10 MM01 (138 N.I. Act) : 10.05.2012 5 liability.
7. The essential ingredients which need to be proved for constituting the offence under Section 138 of NI Act were discussed in the case Jugesh Sehgal vs. Shamsher Singh Gogi, 2009 (9) SCALE 455. The relevant portion of the said judgment reads as under:
"9. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:
(i) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) That cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) That cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days (Now 30 days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) The drawer of such cheque fails to make payment of the C.C. No.187/1/10 MM01 (138 N.I. Act) : 10.05.2012 6 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."
8. Now, this court would examine whether the complainant in the present case has proved the necessary ingredients of the offence or not. (8.1) The first ingredient of the offence is proved as the cheques in question are placed on record as Ex. CW1/A and Ex. CW1/B and the issuance of the cheques to the complainant and every particular upon both the cheques is admitted by the accused.
(8.2) The second ingredient of the offence is that the cheques in question must have been issued in discharge of legal liability. The particulars upon the cheques in question including signature are admitted, thus presumptions u/s 118 and 139 NI Act become applicable. Whether the accused was able to rebut the presumptions would be discussed in the latter part of this judgment.
(8.3) The third ingredient of the offence is that the cheque/cheques must be presented to the bank within a period of six months from the date which is mentioned upon the cheque/cheques. In the present case, the cheques in question are dated 29.11.2008 and 15.10.2008 and the cheques were presented on 24.01.2009 and 21.01.2009 vide bank pay inslip Ex. CW1/C and Ex. CW1/D respectively. Thus, it is evident that both the cheques in question were presented within a statutory period of six months.
(8.4) The fourth ingredient of the offence is that the cheques in question must be returned unpaid. Both the cheques in question in the instant case were returned unpaid for the reason "Funds Insufficient and Unclaimed C.C. No.187/1/10 MM01 (138 N.I. Act) : 10.05.2012 7 Account" vide return memos dated 27.01.2009 and 24.01.2009 respectively. One bank witness, CW3 Mr. Ram Singh from Bank of Baroda, Karol Bagh, New Delhi was examined on behalf of the complainant and filed a document Ex. CW3/1 i.e. Certificate No. BP/2010/SB01/7323 dated 08.05.2010. Original bank return memos Ex. CW1/F and Ex. CW1/E, evidence given by the bank witness CW3 Ram Singh went uncontroverted. As regards the return of cheques unpaid for the reasons "Funds insufficient" and "Refer to Drawer", same are well established from the examination of CW3 and certificate from bank Ex. CW3/1. Moreover, section 146 of NI Act reads as under : "The Court shall in respect of every proceeding under this chapter, on production of bank's slip or memo having thereupon the official mark denoting that the cheque has been dishonored, presume fact of dishonor of such cheque unless and until such fact is disproved".
In view of the above, the dishonor of the cheques in question stands proved.
(8.5) The fifth ingredient of the offence is that the legal demand notice must be issued within thirty days of the intimation of dishonour of cheques in question and same be served upon the accused. The complainant has placed reliance upon the legal demand notices Ex. CWK and Ex. CWL and postal receipts Ex. CW1/G, Ex. CW1/H, Ex. CWI and Ex. CWJ, one witness on behalf of the complainant from the post office, CW4 U.S. Ranga, PRI, Sansad Marg Head Post Office, New Delhi was examined. The receipt of legal demand notice Ex. CWK and Ex. CWL is denied by the accused. The address of the accused mentioned upon the postal C.C. No.187/1/10 MM01 (138 N.I. Act) : 10.05.2012 8 receipt at which the legal demand notice was sent is D39, Naraina Vihar, New Delhi. The address of the accused which is mentioned by the accused in the bail bond furnished by him reveals that the address in the legal demand notice and the address given in the bail bond are same. Thus, the legal demand notice was sent at the correct address of the accused which he himself has mentioned in his bail bond and surety bond.
(8.6) The last and sixth ingredient of the offence is that the accused has not made payment of the cheques amount within fifteen days of receipt of the legal demand notice. The complainant has submitted that accused has not made the payment of the cheques amount within fifteen days from the receipt of the legal demand notice. The accused has not denied the same and never submitted at any point of time that he has made the payment of the cheques amount and as such nonpayment of the cheques amount stands established.
All the necessary ingredients for the offence u/s 138 of NI Act have been made out against the accused with the aid and assistance of the presumptions u/s 118 and 139 NI Act raised under the Act. So the complainant has discharged the initial burden of proving his case and now the onus is upon the accused to come up with a probable defence and rebut the presumptions raised against him and shift the burden again on the complainant.
9. Section 118 (a) and 139 of the Negotiable Instrument Act are reproduced herein for ready reference.
Section 118 of NI Act reads as follows: Presumptions as to negotiable C.C. No.187/1/10 MM01 (138 N.I. Act) : 10.05.2012 9 instruments.-Until the contrary is proved, the following presumptions shall be made:
(a) of consideration : that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;
"That every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."
and section 139 presumption in favour of holder reads as under: "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."
10. Hon'ble Supreme Court in Hiten P Dalal vs. Bratindra Nath Banerjee, (2001) 6 SCC 16 wherein it has been held that : "..because both Sections 118 and 139 require 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 raising the presumption has been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused".
The burden of proof to rebut these presumptions lies upon the accused. It is a settled preposition of law that the initial burden to rebut the dual presumptions of law i.e. the issuance of impugned cheque for legally enforceable debt and of the existence of legal debt is upon the C.C. No.187/1/10 MM01 (138 N.I. Act) : 10.05.2012 10 accused. The accused is required to raise a probable, direct and cogent evidence for the same. It is further a settled position that the accused for raising such a probable defence and for the establishment thereof, can rely upon the circumstances of the case, the evidence adduced by the complainant and any other independent evidence.
In Mallavarapu Kasivisweswara Rao vs. Thadikonda Ramulu Firm and Others, AIR 2008 SC 2898 it was held as under: "12. Under Section 118 (a) of the Negotiable Instruments Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in the regard lies on the defendant to prove the nonexistence of consideration by bringing on record such facts and circumstances which would lead the Court to believe the nonexistence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal.
... ... ... The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. ... ... ..."
11. According to Section 139 of NI Act "it shall be presumed, unless the contrary is proved that the holder of a cheque received the cheque for discharge in whole or in part, of any debt or other liability." Under Section C.C. No.187/1/10 MM01 (138 N.I. Act) : 10.05.2012 11 139 NI Act there is a legal presumption that the cheque was issued for discharging an antecedent liability and that presumption can be rebutted only by the person who has drawn the cheque. This presumption has to be rebutted by the accused. So the burden of proof is on the accused.
12. It would be appropriate to quote the Hon'ble Supreme Court of India judgment in case titled Rangappa vs S. Mohan decided on 07.05.2010: "Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Section 138 N.I. Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act." Now, it is to be seen whether the accused was able to rebut the presumption on preponderance of probabilities.
13. It is the defence of the accused that these cheques (cheques in question) were given to the complainant as complainant had promised to arrange a loan from bank and were without consideration. In fact his bank account was in operative. Another defence of the accused is that he never received any such notice (legal demand notice) and it is a false case to extort money from him. He further submitted that he is innocent and has been falsely implicated as no loan was arranged from the bank.
14. For proving his defence, accused has not led any defence evidence in his defence. In his statement u/s 313 Cr. P.C. accused has denied the receipt of legal demand notice and liability to pay.
15. Taking into consideration the facts of the case, circumstances, evidence on record, written submissions filed on behalf of both the C.C. No.187/1/10 MM01 (138 N.I. Act) : 10.05.2012 12 parties, judgments relied upon by both the Ld. counsels and hearing the arguments by both the parties, this court is of the view that the accused has failed to rebut the presumption of law under section 118 and 139 N.I. Act.
16. The Reasons of this finding are as under: 16.1) The accused has raised the defence that the cheques in question were given to the complainant for the purpose of arranging a loan from the bank. In view of the judgment of Hiten P Dalal's case, (supra) and Mallavarapu Kasivisweswara Rao's case (supra), the accused has to raise a probable defence. In the instant case, all the particulars including the signature upon the cheques in question are admitted by the accused. Cheque Ex. CW1/B is dated 15.10.2008 and Ex. CW1/A is dated 29.11.2008. The accused has failed to show even on the preponderance of probabilities that why he has issued the cheques in question in the name of the complainant and not in the name of the bank when the said cheques in question were allegedly issued for arranging a bank loan. Furthermore, it is highly improbable that a prudent man would issue the second cheque despite non arrangement of loan by the complainant when the first cheque has already been issued to him. The accused has not mentioned anywhere that why he gave two cheques of such an enormous amount to the complainant and for what purposes he required the bank loan. It is also incomprehensible that why he himself did not arrange the alleged loan from the bank and asked the complainant to arrange for the alleged loan.
16.2) Another main defence of the accused is that he has not received C.C. No.187/1/10 MM01 (138 N.I. Act) : 10.05.2012 13 the legal demand notice. As already observed that the legal demand notice was sent at the address of the accused i.e. D39, Naraina Vihar, New Delhi and he has mentioned himself the same address upon the bail bond and surety bond.
At this juncture, it would be pertinent to refer to Section 27 of the General Clauses Act which is extracted as below: "27. Meaning of service by post. Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
Hon'ble Supreme Court in CC Alavi Haji Vs. Palapetty Muhammed & Another, Appeal (Crl.) 767 of 2007 wherein it has been held that : "14. 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. ... ... ...
C.C. No.187/1/10 MM01 (138 N.I. Act) : 10.05.2012 14
15. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the G.C. Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. ... ... ... It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. ... ... ..." In the present matter, the accused has failed to rebut this presumption u/s 27 of General Clauses Act. Thus, it is deemed that the legal demand notice was duly served upon the accused. 16.3) It is being put forth by Ld. counsel for the accused that the additional affidavit, the mortgage deed and affidavitcumdeclaration were not put to the accused in his examination u/s 313 Cr. P.C. by the Learned Predecessor Court. It is being clarified that this court is not placing reliance upon/is not taking into consideration the evidence and the documents which were not put to the accused in his examination u/s 313 Cr. P.C. Although, in the present matter, no prejudice has been caused to the accused by nonputting the aforesaid documents by the Learned Predecessor Court in his examination u/s 313 Cr. P.C. as Ld. counsel for the accused has asked number of questions to the complainant on these C.C. No.187/1/10 MM01 (138 N.I. Act) : 10.05.2012 15 documents during crossexamination of the complainant. 16.4) It is submitted by Ld. counsel for the accused that the affidavit in evidence which was filed by the complainant is not in accordance with the section 297 (2) of Cr. P.C. and the complainant only stated that the contents of the affidavit are true and correct, which could not be relied upon and being defective and not admissible in evidence. This argument of Ld. counsel for the accused is not tenable as this irregularity does not go to the root of the issue and does not vitiate the testimony of the complainant in any manner. Moreover, no prejudice has been caused to the accused.
It was also submitted by Ld. counsel for the accused that cheques in question Ex. CW1/A and Ex. CW1/B were not proved in accordance with law which were also objected to as complainant was not author of the cheques.
The cheques in question Ex. CW1/A and Ex. CW1/B are clearly admitted by the accused. The fact which is admitted by either of the parties needs not to be proved.
16.5) In the instant case, accused has not led any defence evidence in his defence and is placing reliance upon his statement u/s 313 Cr. P.C. It is a settled law that the statement of the accused under Section 313 Cr. P.C. or the explanation given by him to the allegations against him cannot be considered either his defence or any evidence in his favour.
Hon'ble Supreme Court in the case titled Devender Kumar Singla vs. Baldev Krishan Singla, (2005) 9 SCC 15 has held that : "10.... the statement under Section 313 is not evidence. It C.C. No.187/1/10 MM01 (138 N.I. Act) : 10.05.2012 16 is only the accused's stand or version by way of explanation, when incriminating materials appearing against him are brought to his notice.
The similar observations were made by Hon'ble High Court of Delhi in case titled V.S. Yadav vs. Reena, 172 (2010) DLT 561 wherein it is observed that : "5. it must be borne in mind that the statement of the accused under Section 281 Cr. P.C. or under Section 313 Cr. P.C. is not the defence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under Section 281 Cr. P.C. or 313 Cr. P.C. cannot be read an evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstances and not as evidence."
In the instant case, the accused neither appeared as defence witness himself nor produced any other defence witness to support his explanation given at the time of statement under Section 313 Cr. P.C. Therefore, it is abundantly clear that there is no evidence on record which can be read in the favour of the accused to corroborate his explanation under Section 313 Cr. P.C. 16.6) Ld. counsel for the accused has submitted that the complainant is not the author of the legal demand notice. This argument of Ld. counsel for the accused is unsustainable as legal demand notice even if sent and signed by Ld. counsel for the complainant is not invalid or bad in law because it is being issued on the instructions of the complainant. There is no legal requirement under Negotiable Instruments Act that legal demand notice is to be compulsory signed by the complainant. C.C. No.187/1/10 MM01 (138 N.I. Act) : 10.05.2012 17 16.7) One of the defence of the accused is that the complainant is not having any money lending license. It is the case of the complainant that an amount of Rs. 89,70,000/ was given to the accused as a friendly loan. The complainant does not admit anywhere that he is still a money lender. Mere averments of the accused would not make the complainant a money lender for all the times and purposes. In fact, no question regarding the business of money lending or license of money lending is being put to the witness (complainant) during his crossexamination. 16.8) It is also clear in this case that no complaint in respect of cheques in question and the nonarrangement of the bank loan by the complainant was made. Moreover, no written notice was served upon the complainant in this regard. Accused has not made any complaint or notice even after no loan was arranged by the complainant as per the case of accused. Accused submits that he has filed an FIR dated 12.03.2011 against the complainant. This FIR at such a belated stage, filed after the appearance of the accused in the present case, would not help the accused in any manner as the present complaint under section 138 NI Act against the accused was filed by the complainant on 24.03.2009 and the accused appeared in the present case on 14.10.2009. Meaning thereby accused has not protested immediately.
In V. S. Yadav's case, (supra) it was held that : "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.
C.C. No.187/1/10 MM01 (138 N.I. Act) : 10.05.2012 18 16.9) It is contended on behalf of the accused that the burden of proof shifted upon the complainant and complainant has not produced passport, ration card, election card and pan card of Income Tax. Further, complainant has not brought diary which was maintained by him. It is also averred that complainant has failed to disclose the source of his income and from where he brought so much of money which is allegedly given to the accused.
The peculiarity of law u/s 138, 118 and 139 Negotiable Instruments Act is that it is the exception to the general criminal law principle which places the burden of proof upon the prosecution/complainant. Law under Negotiable Instruments Act involves reverse onus clause.
The complainant has discharged his initial burden by proving factual basis for raising the presumptions u/s 118 and 139 NI Act in his favour. As no "probable defence" has been raised by the accused and mere averment that cheques in question were given to the complainant for arrangement of loan from the bank can not shift burden of proof upon the complainant. Thus, the burden of proof never shifted again upon the complainant in the present matter, so question of producing any documents (aforementioned) or witness by the complainant does not arises.
16.10) Sections 118 and 139 NI Act are presumptions of law and casts a duty upon the court i.e. "Shall Presume". The presumption u/s 114 of Indian Evidence Act is a presumption of fact. Court "may presume" it. Presumption u/s 114 of Indian Evidence Act can be raised in favour of the accused in cases u/s 138 NI Act only when burden of proof is shifted back C.C. No.187/1/10 MM01 (138 N.I. Act) : 10.05.2012 19 upon the complainant which is not so in this case. In the present case in hand, accused has raised an illusory defence which is improbable and is not proved by any cogent evidence or circumstances. The defence of the accused is also insufficient to shift the burden upon the complainant. As burden of proof never shifted upon the complainant, he is not required to bring any documents etc or to disclose his source of money/denomination of notes in view of the peculiarity of law under Negotiable Instruments Act and reverse onus clause.
17. In view of the above discussion, this court has come to the conclusion that complainant is able to prove the allegation framed against the accused and the accused has failed to rebut the mandatory presumption of law under section 118 (a) and 139 N.I. Act even on preponderance of probabilities. Accordingly, accused Krishan Madan is convicted for offence under section 138 NI Act.
18. Put up for arguments on sentence for 14.05.2012.
Announced in open court (Surabhi Sharma Vats)
th
on 10 Day of May, 2012 MM01 (138 N.I. Act)
PHC/New Delhi
C.C. No.187/1/10 MM01 (138 N.I. Act) : 10.05.2012