Delhi District Court
Zile Singh Khatri vs . Amit Kumar on 3 June, 2023
1
IN THE COURT OF DR. SATINDER KUMAR GAUTAM
PRESIDING OFFICER SPECIAL COURT(NI ACT) SOUT WEST,
DWARKA
CC No. 13459/2019
Zile Singh Khatri vs. Amit Kumar
Under Section 138 of the Negotiable Instruments Act, 1881
P.S Palam Village
1. Name and particular of the complainant : Sh. Zile Singh Khatri
S/o Late Sh. Badlu Ram
R/o RZ D-1/79, Gali no.7,
Mahavir Enclave, Palam
Dabri Road, New Delhi-
110045
2. Name and particulars of accused : Sh. Amit Kumar
S/o Sh. Dharambir Singh
R/o B-237, Nasirpur Colony.
Gali No. 18,
New Delhi-110045
3. Offence complained of : u/s 138 of NI Act
4. Plea of accused : Pleaded not guilty
5. Date of institution : 20.04.2019
6. Final Order : Acquitted
7. Date of such order : 03. 06.2023.
CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.1 /27
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JUDGMENT
INTRODUCTIION
1. Vide this judgment, the present complaint filed by Zile Singh Khatri against accused Amit Kumar for offence u/s 138 r/w Section 142 of Negotiable Instrument Act would be disposed of.
BRIEF FACTS
2. The factual matrix of the allegations averred in the complaint are that accused and complanant are well known to each other for the last five years. In the last week of Jan,2018, accused approached for friendly loan of Rs.1,20,000/- for a period of ten months. Considering request of accused, complainant gave Rs.1,08,000/- in cash on 08.02.2018, after withdrawing from bank and Rs. 12,000/- from his own savings. After expiry of period of ten months, complainant approached the accused for taking repayment and on great persuation, the accused issued a cheque bearing no. 985389 dated 20.12.2018 for a sum of Rs.1,20,000/- drawn on Central bank of India , Mangla Puri, New Delhi in favour of complainant with request for presenting the same in March 2019. As per assurance of accused, complainant presented the cheque in his account in his bank State Bank of India, Main Palam Dabri Road, Mahavir Enclave, New Delhi-110045 which has been returned back as unpaid CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.2 /27 3 with remarks "Account Closed" vide return memo dated 11.3.2019. Thereafter, complainant again approached accused and intimated about dishonour of cheque and requested to make the said payment but accused failed to pay the cheque amount. Thereafter, complainant sent a legal demand notice dated 23.3.2019 to the accused by way of Regd. Post but accused failed to make payment despite service of notice within 15 days . However, accused replied to the said legal notice. Hence, the present case.
PRE-SUMMONING EVIDENCE, SUMMONING ORDER AND NOTICE U/S251 CR.P.C
3. Complainant tendered his pre-summoning evidence on 02.09.2019 vide affidavit of evidence Ex.CW1/A along with documents i.e. statement of account Ex.CW1/1, original cheque Ex.CW1/2, returning memo Ex.CW1/3, legal notice is Ex.CW1/4, postal receipt Ex.CW154, Track Report is Ex.CW1/6, and thereafter closed his pre- summoning evidence.
4. Considering pre- summoning evidence and documents on record, the court concerned after taking cognizance of the offence under Section 138 NI Act, summoned the accused vide order dated 23.11.2019.
CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.3 /27 45. Thereafter, accused appeared on 20.01.2020 and bailed out.
Thereafter notice u/s. 251 CrPC was framed against him to which he pleaded not guilty and claimed trial. In defence he stated that the cheque in question bears his signature and he did not fill other particulars as he had given the same as blank signed cheque at the time of taking loan of Rs.40,000/- in cash in the year 2009-2010 from the complainant. He further stated that as security, he had issued two blank signed cheques including the cheque in question and he has already paid the said loan alongwith interest. He did not receive any legal notice sent by complainant.
6. Application of accused filed u/s 145 (2) NI Act was allowed vide order dated 3.3.2020 and accused was permitted to cross-examine the complainant/CW1 who was duly cross-examined by Ld. Counsel for accused on 28.5.2022 and 15.7.2022.
7. During cross-examination complainant stated that he got retired in 1984 from post of Hawaldar as defence personnel at the age of 47 years and thereafter he worked Airport Authorities of India and worked till 1995 and since then he is at home. He further stated that he has bank account in State Bank of India, Mahavir Enclave and Central Bank of India, Mangla Puri. He do not remember as to how many persons had given loans. The loans were given as friendly loans. He filed complaint case u/s 138 of Negotiable Instrument Act ( hereinafter referred as NI Act ) against 10 to 12 persons i.e Vinay CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.4 /27 5 Kumar Jain, Rashmi Vats, Kumkum singh, Suresh , Rakhi Verma, Manju, Arun, Santosh Kumar, Aryan Sharma , Bobby, Vineet Dudeja and out of them, some have been settled and some are pending trial. He do not remember exactly if there is any other case apart from above.
8. In further cross examination Cw1 stated that his source of income is rent received from property and his pension i.e Rs.35,000/-. In year 2017-2018 his monthly pension was Rs. 30-32,000/-. He filed ITR of the year 2018 but he did not show the loan in question in his ITR. CW1 placed on record ITR and House Tax recipt pertaining to year 2017-18 and 2018-19 and exhibited as Ex.CW1/D1 & Ex.CW1/D2 respectively. Complainant further stated that there is something written at the backside of cheque in question and generally account number, mobile number is written alongwith bank stamp. CW1 further testified that he has not filed any receipt or acknowledgment to prove the loan advancement. Further denied that cheque in question were filled by him or by his friend with different ink. He also denied that he has added in prefix "1" before amount 20,000/- to change the liability with different ink. Further, CW1 stated that he know accused since 2008 or 2009 but and he do not remember whether the accused had taken any friendly loan in 2009 or 2010. CW1 testified that he had taken financial help from him on multiple occasions. He had given Rs. 20,000/- to the accused in 2009 or 2010 and it was not a friendly loan. Accused had returned him CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.5 /27 6 Rs.20,000/- in 2010. Complainant denied all the suggestions put to him. CW1 further testified that he had never taken any security cheques from the accused, has not mentioned connected matter between the same parties in his present complaint. The cheque in question was handed over to him in December 2018. The accused sought some time and asked him not to present the cheque till March 2019. Thereafter complainant evidence was closed vide separate statement of complainant on 15.07.2022. Thereafter, matter was listed for statement of accused.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE.
9. On 03.08.2022 accused was examined u/s 313 Cr.PC wherein accused admitted his signatures on the cheque in question and stated that the cheque in question was given in 2008-2009 when he had taken Rs.20,000/- from the complainant. He had already repaid Rs.24,000/- to the complainant. He admitted receiving legal notice. He further stated that he had taken a loan of Rs.20,000/- twice from the complainant and in lieu of said loan he had given two cheques to the complainant. He had already repaid more than Rs.45,000/- to the complainant. When he asked for return of those two cheques, complainant said that he has mis-placed the same while shifting his residence. He also admitted that he did not file any complaint with regard to misuse of cheque. He do not owe any liability of CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.6 /27 7 Rs.1,20,000/- as alleged by the complainant. Accused wishes to lead defence evidence.
10. Accused examined himself as DW-1 whereas stated that he had taken loan of Rs.20,000/- each from the complainant in 2009 and 2010. The cheque in question along with one more cheque were given as a security cheques for the loan taken in 2009-2010 respectively. He repaid Rs.48,000/- to the complainant in 2010. When he asked for return of security cheques, complainant kept avoiding to return his cheuqes saying that he was shifting from his house and assured that he will return the cheques as and when he finds them. Thereafter, he received notice and appeared before the court and this way he came to know that his security cheques have been misused.
11. During cross examination DW1/accused stated that he has not filed any complaint before any police official or court or bank for the misuse of his cheques in question for the last eight years. He do not know whether cheques issued before 2017 would not be cleared due to some circular issued by RBI with respect to cheques. He do not have any document to show that he had made any payment of Rs.48,000/- in 2010. He denied all the suggestions put to him by Ld. Counsel for complainant. Thereafter, defence evidence was closed vide separate statement of accused on 14.09.2022 and matter was listed for final arguments.
CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.7 /27 812. Final arguments were heard on behalf of both the parties and they also filed their written synopsis as well as judgment.
CONTENION OF COMPLAINANT.
13. Ld. counsel for complainant filed written submissions reiteriting averments made in his complaint. It is further contended that accused has admitted his signature on the cheque in question in reply to notice u/s 251 cr.p.c and statement u/s 313cr.p.c but denied filled any particulars on the cheques. Accused also admitted that he had taken loan of Rs.40,000/- in 2009-2010 and has repaid the same. The accused also admitted that he had issued two security cheques as blank signed including cheque in question at the time of taking loan of Rs.40,000/- Ld. Counsel for complainant relied on judgments of apex court in Rangappa Vs. Mohan AIR, 2010 SC 1898 wherein it is held that :
" Once the cheque relates to the accoudnt of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under section 138 of the negotiable instrument act has to be raised by the court in favour of the complainant"
14. Ld. Counsel for complainant relied on judgment titled as K. Bhaskaran Vs. Sankaran Vadhyan Balan 1999(4) RCR CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.8 /27 9 ( Criminal) 309 wherein it has been held by Hon'ble Supreme Court that:
" as the signature in the cheque 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 dates which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque receive it for the discharge of any debt or liability."
15. It is further contended that in statement u/s 313 cr.p.c accused admitted having receipt of legal notice however in notice u/s 251 he denied to receive legal demand notice. The accused did not dispute the address mentioned on it. The complainant placed on record delivery report of legal notice and proved the same thus, the version of accused is not reliable. In the present case, the accused himself admitted that he has not filed any complaint with regard to misuse the cheque nor has filed any documentary proof with regard to repayment of Rs.45,000/- Thus, the complainant has proved his case and accused could not prove his defence thus, the accused may be convicted for offence u/s 138 N I Act.
CONTENION OF ACCUSED
16. Per contra, Ld. counsel for accused argued that it is apparent on the cheque that the signature and other contents of the cheque are CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.9 /27 10 in different ink and the figure of one is added later on the different pen for making amount Rs.20,000/- to Rs.1,20,000/- . Further the complainant during his cross examination admitted that he has filed complaint cases u/s 138 Ni Act against several persons in the Dwarka Court itself, it means that the compainant is working as money lender without any licence as required in Punjab Money Laundring Act. It is further contended that the complainant has not produced any receipt or acknowledgment from the accusued for loan and as per Section 269 SS of Income Tax Act, any loan more than Rs.20,000/- can only be given by cheque only. In this regard , ld. Counsel for accused relied on judgment Janardhan Bhat Vs. Dattatraya G. Hedge (2008) (1) LRC 123 SC.
17. It is further contended that it is settledproposition of law by Hon'ble supreme Court that prosecution must prove the guilt of accused beyond all reasonable doubts, the standard of proof so as to prove a defence on the part of accused is "preponderance of probabilities". Ld. Counsel for accusued also relied on judgement M.S. Narayana Menon @Mani vs. State of Kerala 2006 (4) LRC 185 SC, K. Prakashan vs. P K Surenderan 2007(4) 83C.
18. It is further contended that accused has successfully rebutted presumption u/s 139 of NI Act. The complainant was having possession of old cheques and manipulated the same to file the present case and other connected case.
CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.10 /27 1119. It is further submitted that complainant filed his ITR of year 2017-2018 but did not show any loan amount in ITR despite having PAN card. The complainant did not disclose in his complaint that accused had taken earlier loan of Rs. 20,000/- and repaid the same however, during cross examination, he admitted that he know accused 2008 or 2009. He also admitted as CW1 in his statement that "..I do not rememebr whether the accused had taken any friendly loan in 2009-2010. Thereafter he stated that he had taken financial help from me on multiple occasions..." but did not disclose when and what amount was taken by accused before 2018. However, he stated that ".....I had given Rs. 20,000/-to accused in 2009 or 2010" Thus, the said statement of complainant proves the defence of accused that he had taken loan of Rs. 20,000/- in 2009-2010 for which the accused issued two cheques including cheque in question. As per statement of complainant during cross- examination when he stated that "..Accused had returned him Rs.20,000/- in 2010..." also proves the defence that the accused has already paid the loan aken in 2009-2010 and did not return the security cheque issued by accused and misused later on to file the present false complaint. As per statement of complainant alleged that accused had taken financial help on multiple occasion but did not disclose any date, month or year or amount when he advanced money to accused on multiple occasion after 2009-2010. The accused has also filed judgment of the persons namely Bobby and CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.11 /27 12 Santosh Kumar against whom the complainant filed case u/s 138 of NI Act in which accused were acquitted. Even complainant himself stated that he filed complaint u/s 138 NI Act against 10 to 12 persons in the court and out of which few cases have already been settled. It shows that he is money lender without any money lending licence.
20. . Further, no receipt or acknowledgment filed to advance the loan amount is not reliable. When a person take a small amount loan of Rs.20,000/- and paid after a year as per version of complainant himself then how can, complainant can advance amount of Rs.1,20,000/- for a period of ten months without taking any receipt acknowledgement and cheque. In the present case as per averments of complainant, he obtained the cheque after 10 months from the date of advancing money in December 2018 and for presenting in March 2019 and prayed that the complaint is liable to be dismiss .
LEGAL DISCUSSION
21. To bring home a liability under section 138 of NI Act, 1881, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, viz.
1. 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;
CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.12 /27 132. The cheque has been presented to the bank within a period of three months from the date mentioned on the cheque or within the period of its validity, whichever is earlier;
3. The cheque is returned by the bank unpaid either because 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;
4. The payee or the holder in due course of the cheque makes a demand for the payment of teh said maount of money by giving a notice in writing to the drawer of the cheque within 40 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
5. The drawer of such cheque fails to make the payment to the payee or the holder in due course of the cheque within 15 days of the receipt of the notice.
LOAN ADVANCED
22. The complainant has simple averred that he had advanced loan of Rs. 1,20,000/- to the accused by withdrawing Rs. 1,08,000/- from bank and rest from his saving. It is admitted fact that the said amount is not shown in the ITR by the complainant nor any receipt or acknowledgement taken from accused is placed on record. Even as per complainant averments, he had taken the alleged cheque after ten months of advancing the money to the accused and presented in March 2019. On perusal of statement of accused no entry is reflecting regarding presentation of alleged cheque or dishonouring CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.13 /27 14 of the same. The complainant also did not disclose in whose presence he had given the loan amount to accused. The complainant has also not called any bank official to prove that the account of accused was in fact closed on 20.5.2011. Even otherwise, if the account was closed on 20.5.2011 then, as to why the accused would issue the old cheque in 2018 i.e after 9 years. If accused had issued the old cheque which was not valid as per guidlines of RBI, because in 2018 cheque book was used to issue with name of account holder and not without name. A person who used to give loan and take security cheques, cannot be said that he is not aware about the same. Thus, the complainant could not prove that he had advanced the loan to the accused. Even otherwise, simply cash withdrawal does not prove that the amount withdrawn is given to the accused without any documentary and oral evidence. Even that the balance shown in the account of complainant is much higher . No explanation for withdrwal of Rs. 10,8000/- . On 13.2.2018 shows 50A statement of account of complainant shows account closed. The Ex. CW1/1 is not certified in accordance with Banker Book of Evidence Act nor enclosed certificate u/s 65-B of Indian Evidence Act. In the present case, complainant himself admitted that he has no receipt/ acknowledgement for advancing money to the accused.
ISSUANCE OF CHEQUE CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.14 /27 15
23. So far as question of issuance of cheque is concerned, perusal of cheque clearly shows that figure '1' is dipicted with different ink prefix amount of 20,000/-. Not only this, the cheque is of Janak Puri branch of which MICR Number in2018 was 110016050, MICR number of mangla Puri branch of the said bank as 110016121 and it seems to be manipulated . In normal cource and practice no bank change MICR code of the branch even after amalgmation or liquidation of bank with other bank even then in such case, new cheque book is issued. It also shows that the complainant used the old cheque of the accused might be issued in 2009-2010. On perusal of MICR number, other number as stated above is reflecting little bit differant. The complainant also failed to prove that the cheque was issued towards liability as he could not tell in whose presence he had given the alleged amount. The name of branch of cheque in question is diffferent in his complaint, legal notice from Janak Puri to Mangla Puri for the reason best known to him. The cheque in question is of differant branch prensented. The cheque in question presented in Central Bank of India DDA project Office, Mangla Puri and whereas presented in State Bank of India , Dabri Road Mahavir Enclave Mor in CTS account. Sectiion 87 of NI Act says that :
" Effect of material alteration:- any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteratiionand CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.15 /27 16 does not consent thereto, unless it wasa made in order to carry out the common intention of the original parties;
Alteratiion by indorsee- And any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof .
24. Hiten P. Dala 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 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 is obliged to prove the case against the accsued 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 his 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 CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.16 /27 17 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 defnce to exist or consider its existence to be reasobably probable, the standard of reasonability being that of the prudent man."
25. Reliance can be placed on the judgment prononced in John K Abrahma vs Simon C Abraham & Anr SLP (CRL.) No. 9505 of 2011, "It has to be stated that in order to draw the presumption under section 118 read along with 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had rquired funds for having advanced the money to the accused: that the issance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant"
26. Also, in K. Subramani vs K Damodar Naidu 2015 Civil Court Cases 001 (S.C), Hon'ble Supreme Court of India found the requirement of the complainant to establish his financial capacity to lend money relevant in cases u/s 138 of NI Act.
27. In the present case, it is admitted by complainant that he is a retired person and having rental income but did not disclose what was his rental income nor the same is shown in ITR. As per ITR 2017-2018 his monthly pension was only 30,000/- to 32,000/- . The complainant has also not filed proper statement of account. The leaf of bank pass bokk copy shows he is in habit of depositing cash amount and within a short period he withdraw the amount even on the same day.
CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.17 /27 18It shows that he is having some money transaction business in his own account in order to creat false evidence. He even did not file statement of account with regard to the date when it was dishonoured which also shows that complainant supress the material facts. Ld. Counsel for the accused contended that the complainant has suppressed the material facts with regard to lending money to other person and advancing loan prior to alleged loan. He also suppressed that he had received security cheques at the time of advancing loan in year 2009-2010. The accused has also alleged that complainant had filed false complaints against other persons for offence u/s 138 cr.p.c by filing copy of judgment passed in case no. 7320/19 against accused Bobby to him he alleged to advanced Rs. 2 lac in May 2018 and in other judgment against accusd Santosh Kumar in which the complainant advanced Rs.70,000/- in Dec. 2017 and thereafter he again advanced him Rs. 2 lac on 7.3.2018. All the said loan was allegedly given by complainant to the above said persons in cash after withdrawing from bank but in ITR there is no such amount is reflecting. As to why complainant advanced money in cash , he can give the loan amount by way of bank transfer or by way of cheque but complainant used to choose given loan in cash for the reason best known to him. All these create doubt on the complainant story.
INCOME TAX RETURN CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.18 /27 19
28. In cases where cash loan is alleged to have been advanced by the complainant, accused generally takes a plea that loan was advanced in violation of Income Tax Act, specifically Sectiion 69SS Income Tax Act. Section 269 SS mandates that no person, after the cut-off date shall take or accept from any other person, any loan or deposit, otherwise than by an account payee or an account payee bank draft if the amount is more than Rs.20,000/- as invalid, illegal or null and void. Onus is thus on accused to show that cash loan was infact never advanced. Reliance can also be placed on judgment Dilip chawla Vs. Ravinder Kumar, 2017 SCC on Line Del 9753.
29. In section 118 (a) and 139, the Hon'ble High court summarise the principles enumerated in the following manner:
(i) One 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.
(ii) 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.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.19 /27 20 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.
30. (iv) 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.
(v) It is not necessary for the accused to come in the witness box to support his defence.
31. Unlike the prosecution, the accused has to prove his defence on probabilities by leading cogent evidence. The onus on the accused is not as stringent and rigorous as is on the prosecution even in case of a trial which proceeds on reverse onus of proof theory. The said view is endorsed by the Hon'ble Apex court in a plethora of decisions, one being, Kali Ram v. State of Himachal Pradesh 91973) 2 SCC 808 wherein it been held that:
" ... The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal"CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.20 /27 21
32. The accused has taken a consistent stand that he did not avail alleged loan from the complainant and did not issue any cheque towards any enforceable legal liability/ debt of the loan alleged and therefore, the onus of proof which is only preponderence of probability upon the accused is discharged.
33. The contention of accused that in absence of any cogent evidence of advacement of loan, the trial court has to acquit the accused and relied on judgment titled as Sudha Renukaiah and others vs State of UP, 2017 (2) RCR ( crl) 693 wherein it is held that "where in a case, two views are possible , the one which favours the accused, has to be addopted by the Court.
34. In the present case, complainant has not produced any cogent reliable evidence in whose present he advanced the alleged amount nor produced any receipt/ acknowledgement on record to show that he had infact advanced the loan of Rs.1,20,000/- As per statement of account shows that many times complainant withdrawing cash and is being credited in his account . It also reflect that in order to creat evidence, he withdraw the part amount while he can give the same by way of bank trnasfer etc. Repeated entries of depositing and withdrawn of amount within 2/3 days shows that it is not sure that complainant had given the cash amount withdrawn from bank to the accused against acknowledgement. The complainant giving name of number of persons against whom he filed cases u/s 138 NI Act shows CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.21 /27 22 that he is habitual to file cases to extort money with ulterior motive by creating the false fabricated evidence.
FINANCIAL CAPACITY OF PAYEE
35. In a landmark judgment passed on 09.04.2019 by a Division Bench of the Hon'ble Supreme Cour in Basalingappa vs Mudibasapp Criminal Appeal No. 636 of 2019 it was held that when the accused proves a probable defence, the reverse onus of proof shifts the burden on the complainant who is bound to explain his financial capacity and the transaction of loan advanced. The complainant has not shown any evidence of his financial capacity as to whether withdrawal was given to the accused or some one else or use it for own personal purpose.
36. Further, The complainant in order to prove his financial capicity to provide advance to the accused, the complainant has not filed statement of account or his financial statement which means, the complainant was not in good financial capacity to advance loan . So, the plea taken by accused that he had taken loan of Rs.20,000/- in 2009-2010 and issued the two cheques as blank signed seems to be correct as per admission of complainant in his cross examination as stated above and the accused also relied on judgment titled as Basalingappa Vs. Mudibasappa, ( Supra) wherein it was held that:
CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.22 /27 23" Sec. 20 and Sec. 139 of the Act is an example of a reverse onus and the test of propertionality should guide the construction and interpretation of reverse onus clauses on the defendant-accused and the defendant accused cannot be expected to discharge an unduly high standard of proof."
In this regard reliance can also be placed on judgment titled as Tedhi Singh Vs. Narayan Dass Mahant, 2022 SCC on Lissne SC-
302.
37. In fact, it is conceivable that in some cases, the accused may not need to adduce own evidence. Rebuttal can be done by cross examination of complainant and by showing contradictions and inconsistencies in the case of the complainant itself. Once rebuttal evidence is adduced and accepted by the Court, the evidential burden shifts back to the complainant and thereafter, the presumptions under Section 118 and 139 NI Act would not come to the aid of the complainant.
38. In the instant case, stand taken by the accused in his defence he had given two blank signed cheque as security at the time of taking loan of Rs. 20,000/- each which he had already repaid has been corroborated by complainant himself also proves the defence of accused that he had taken loan of Rs. 20,000/- each in 2009-2010 which the complainant misued the same for filing of present case by tampering the same.
CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.23 /27 2439. The onus thus shifts on the complainant and the rebuttable presumption of law under section 139 NI Act thus vanishes. The complainant has now to prove that he had advanced loan to the accused and the cheque in question was issued by the accused in discharge of legally enforceable debt.
40. Mere allegation of the complainant does not come as a good defense, unless the complainant leads cogent evidence to prove the said assertion. Section 103 of the Indian Evidence Act provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by ay special law that the proof of that fact shall lie on any particular person.Section 103 of the Indian Evidence Act amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue.
41. Reliance can also be placed on judgment titled as M.S Narayan Menon Vs. State of Kerala ( 2006) 6 SCC 39, wherein the Hon'ble court has discusssed in detail the scope and ambit of statutory presumption under Section 118 read with Section 139 of the Act. The relevant extract of the judgment is reproduced below:
"Applying the said definitions of 'proved' or 'disproved' to principle behind Section 118 (a) of the Act, the court shall CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.24 /27 25 presume a negotiable instrument to be for consideration unless and until after considering the matter before it either believes that the consideratiion does not exist or concisders the non- existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon."
42. To summarise the version of the complainant that he being a retired government pensioner advanced loan to the accused without any taking any receipt / acknowledgment for the same and even take cheque in question after ten months and agreed to present the same after three months. This story of complainant does not inspire confidence nor it is trustworthy. On the other hand, the stand of the accused has been clear and consistent through out the trial. It clearly shows that complainant misused the security cheque and account of the accused was already closed in year 2011.
43. In the instant case, the complainant has not been able to prove that the cheque in question was issued by the accused for discharge of legally enforceable liability/ debt and hence the foremost ingredients of offence punishable u/s 138 of NI Act is not established in accordance with law beyond reasonable doubt and as the CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.25 /27 26 complainant has failed to lead clear, cogent and credible evidence to prove that the cheque in question was issued in discharge of any legally enforceable debt or liability. The accused has rebutted the presumption arising in favour of complainant u/s 118 and 138 of Negotiable Instrument Act. On the other hand, the judgment relied on by counsel of complainant do not helpful the case of the complainant.
44. Keeping in view the aforesaid discussion and the material on record as well as judgment as cited by the ld. Counsel for the parties, it is brought on record that cheque in question does not reflect towards the liability of the accused on old cheque which was not vaild as per guidelines of RBI. It is just an attempt to recover the amount from the accused by using the old cheque which seems to be issued at the time of loan taken in 2009-2010 by accused . Even other wise as per cheque return memo account was closed in 2011 and complainant manipulatted and used the same lateron to file the present case . There are several loopool and dent in the complainant case brought on record.
45. In view of the aforementioned discussion and judgment cited, the court came to the conclusion that complainant has not been able to prove its case u/s 138 of NI Act beyond shadow of any reasonable doubt against the accused. Accordingly, accused namely Amit CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.26 /27 27 Kumar s/o Sh. Dharambir Singh stand acquitted for offence punishable u/s 138 NI Act qua the cheque in question.
40. This judgment contains 27 pages in number and every page of this judgment is signed by me with date.
Announced in the open Court on 3rd day of June, 2023 ( Dr. Satinder Kumar Gautam) PO Special Court (NI Act) S-W Dwarka/ 03.06.2023 CC NO. 13459/2019 Zile Sigh Khatri vs. Amit Kumar Page No.27 /27