Delhi District Court
Pooja Finlease Ltd. vs . Naresh Pal on 30 September, 2021
IN THE COURT OF MS. MEDHA ARYA
MM (N.I. Act03) SOUTHWEST: DWARKA COURTS: NEW DELHI
CNR No.DLSW020089392019
Ct. Case No.7827/2019
PS: Dwarka South
U/s.138 N.I. Act.
Pooja Finlease Ltd. Vs. Naresh Pal
Date of Institution of case: 23.02.2019
Date of which Judgment reserved: 28.09.2021
Date on which judgment pronounced: 30.09.2021
JUDGMENT
1) Unique ID no. of the case : DLSW020089392019
2) Name of complainant : Pooja Finlease Ltd.
70/A32, Rama Road, Industrial Road,
New Delhi110015
3) Name and address of accused : Naresh Pal
S/o Nannu Ram
R/o House No.455/4, Gali No.2A, Near
Raghunath Mandir Prem Nagar
Road, Patel Nagar, Delhi110008
4) Offence complained of : Section 138 N.I. Act
5) Plea of accused : Not guilty and claim trial
6) Final Order : Acquittal U/s.138 N.I. Act
7) Date of order : 30.09.2021
Pg. 1 of 24 C.C. No.7827/2019
BRIEF REASONS FOR DECISION
1. By way of the above captioned complaint, the complainant has sought the summoning, trial and conviction of the accused for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter, 'the NI Act'), by alleging that the cheque was given by the accused to the complainant towards repayment of a loan amount dishonoured upon presentation and the accused failed to clear his legal liability towards the complainant despite the due service of statutory notice.
2. The above captioned complaint has been filed by the complainant Pooja Finlease through its AR. It is averred in the complaint that the complainant is a company, duly incorporated under the Companies Act 1956, having its registered office at Najafgarh, New Delhi110015. It is the case of the complainant, as culled out from the complaint, that the accused had approached the complainant on 20.09.2016 for the purpose of availing a personal loan. A loan of Rs.50,000/ was duly sanctioned to the accused, and the accused had agreed to repay the loan amount in equal installment of Rs.500/ spread over 112 days. It is further the case of the complainant that the loan agreement bearing number PLD0947 was duly executed between the complainant and the accused, incorporating the terms as per which the loan was advanced to the accused.
Pg. 2 of 24 C.C. No.7827/2019
3. The complainant has further averred in the complaint that the accused failed to repay the loan amount as well as the daily instalments to the complainant. Finally, when the complainant approached the accused seeking the repayment of the loan amount, the accused issued the cheque bearing number 000030 dated 02.01.2019 drawn on bank of Baroda, Punjabi Bagh, New Delhi110026 for the amount of Rs.68,627/ (hereinafter, the cheque in question) towards full and final discharge of his liability towards the complainant. To the utter dismay of the complainant company, however, the cheque in question was dishonoured upon presentation vide cheque return memo dated 04.01.20219, with the remarks "funds insufficient". Within 30 days of the receipt of the information of the dishonour of the cheque, the complainant served a legal demand notice upon the accused seeking the payment of the cheque amount. The said legal notice dated 22.01.2019 was duly served upon the accused, but the accused failed to pay the cheque amount and clear his liability towards the complainant within 15 days of the receipt of the legal notice, thus constraining the complainant to approach this court by way of the above captioned complaint.It is the case of the complainant that the present complaint has been filed within the period of limitation as per Section 142 of the NI Act, and further that the territorial jurisdiction to try the present case vests with this court.
Pg. 3 of 24 C.C. No.7827/2019
4. The presummoning evidence of the AR of the complainant was duly recorded under Section 200 CrPC. At the stage of presummoning evidence, the AR of the complainant relied upon the evidence affidavit Ex.CW1/1 bearing his signatures at point X & Y. The contents thereof are not being reproduced herein in the interest of brevity, the same being a reiteration of the contents of the complaint. In his pre summoning evidence, CW1/AR of the complainant further relied upon the following documents
(i) Ex.CW1/A being the board resolution authorising the AR of the complainant Brijesh Pandey to prosecute the instant complaint
(ii) Ex.CW1/B being the original cheque in question amounting to Rs.68,627/ dated 02.01.2019
(iii) Ex.CW1/C being the duly stamped cheque return memo dated 04.01.2019, the legal notice Ex.CW1/D dated 22.01.2019
(iv) Ex.CW1/E being the speed post receipt
(v) Ex.CW1/F being the internet generated tracking report along with the requisite certificate under Section 65 of the Indian Evidence Act.
CW1 further deposed to the effect that the complainant company maintains its bank account with ICICI bank Sector10, Dwarka Branch, New Delhi and the cheque in question was presented for collection through that account. CW1 further deposed on oath that the statutory demand notice was sent to the accused at his correct address. Upon consideration of the presummoning evidence adduced on the Pg. 4 of 24 C.C. No.7827/2019 record and after hearing the complainant on the point of summoning, the accused was summoned to face trial.
5. When the accused entered appearance, he was admitted to bail and then the parties were referred to the mediation Centre annexed with Dwarka District Courts, so as to accord to them an opportunity to explore the possibility of settlement. However, the matter could not be settled between the parties. Thereafter, a formal notice under Section 251 CrPC was served upon the accused, vide which notice the substance of the accusation against him, contained in the complaint, was explained to the accused. The accused pleaded not guilty to the offence alleged against him and stated that while he had obtained a loan of Rs.50,000/ from the complainant company, at that time he had issued 5 to 6 blank signed cheques in favour of the complainant company as security, and one of the said cheques has been misused. The accused also stated that he only has an outstanding liability of Rs.10,000 12,000/ towards the complainant company. The accused further stated that he had never received the legal demand notice dated 22.01.2019 from the complainant company. It is pertinent that the accused admitted the fact that he has availed a loan from the complainant, and also admitted his signatures over the cheque in question, but took the stand that the particulars on the cheque in question were filled in by the representative of the complainant and not by him.
Pg. 5 of 24 C.C. No.7827/2019
6. Thereafter, upon an application filed by the accused under Section 145(2) of the NI Act, which was not opposed by the complainant, the accused was permitted to cross examine the complainant. At this stage, this Court also directed that the case be tried as summary trial case.
7. The hearing in the matter thereafter progressed to the stage of CE. At the stage of CE, the AR of the complainant examined himself as CW1. In his examination in chief, CW1 adopted his presummoning evidence, and also relied upon the documents on which he had relied at the stage of presummoning. In his cross examination, AR of the complainant deposed that Rs.50,000/ was advanced to the accused by way of a loan by the complainant, but he could not state if the said amount was advanced to the accused by way of a cheque or direct bank transfer/NEFT. CW1 accepted as correct the suggestion that only an amount of Rs.44,500/ was transferred to the account of the accused on 20.09.2016, and volunteered that out of the sanctioned loan amount of Rs.50,000/, the amount of Rs.44,500/ was transferred after making the due deductions for file charges etc. CW1 further acccepted as correct the suggestion that the accused had repaid Rs.26,000/ out of the loan amount, (of Rs.50,000/). CW1 further deposed that the last payment of an instalment towards the repayment of the loan amount was made by the accused on 13.10.2016, and that this instalment was of the amount of Rs.2,000/. CW1 further deposed that the cheque in Pg. 6 of 24 C.C. No.7827/2019 question was given by the accused on first or second of January 2019. CW1 further deposed that as computed in the month of January 2019, the amount due by the accused towards the complainant was Rs.68,627/, that is the amount of the cheque in question. CW1 further deposed that the cheque in question was given by the accused at the office of the complainant company, but he cannot specify the name of the official to whom the cheque was handed over as no record in this regard is maintained by the complainant. CW1 further deposed that the complainant's concerned department had computed the total amount which was due by the accused . CW1 denied the suggestion that no statutory legal demand notice was served upon the accused. CW1 denied the suggestion that the cheque in question was given by the accused to the complainant in blank signed condition, and further denied the suggestion that the complainant company had taken, in all, six blank signed cheques from the accused for the purpose of securing the loan advanced by it to the accused. CW1 deposed on oath that he could not state if the accused had taken any other loan from the complainant company prior to the present loan. CW1 deposed that he could not confirm if the accused had obtained a loan fraud of Rs.29,250/ from the complainant on 13.07.2016 and the loan of Rs 50,000/, which is the substratum of the present complaint, was advanced by the complainant to the accused, only after the accused had repaid the earlier loan. CW1 further stated that the accused was required to repay the loan amount in equal instalments of Rs.500/ each day for a period of 112 days, and the complainant company would charge penal interest at the rate of 5% per month, for each month of Pg. 7 of 24 C.C. No.7827/2019 default. CW1 deposed that the loan advanced by the complainant company to the accused is as per the RBI guidelines.CW1 deposed on oath that he could not confirm if the RBI guidelines permitted charging of 5% per month penal interest on account of default of repayment of loan. CW1 denied the suggestion that the accused had made a payment of Rs.55,000/ against the present loan amount, and the receipts were also issued by the complainant to the accused reflecting the repayment. CW1 was discharged after this crossexamination.
8. No other witnesses were examined by the complainant and CE was accordingly closed vide order dated 22.01.2020.
9. Thereafter, the accused was examined under Section 313 CrPC. At this stage, the accused stated that he had duly availed a loan of Rs.50,000/ from the complainant, and Rs.44,500/ was sanctioned in his favour by the complainant company after due deductions and towards securing the repayment of the said loan amount, he had given six blank signed cheques to the complainant company. The accused further stated that he had never filled the particulars on the cheque in question, nor did he receive any statutory demand notice from the complainant. The accused opted to lead DE.
Pg. 8 of 24 C.C. No.7827/2019
10. Accordingly, the case was thereafter fixed for defence evidence. While leading evidence in the affirmative, the accused chose to examine himself under Section 315 CrPC as the first defence witness. In his examination in chief, DW1 stated that an amount of Rs.44,500/ was advanced to him by the complainant company. DW1 further stated that the entire loan amount has been repaid by him to the complainant company and he does not have any existing outstanding liability towards the complainant. DW1 relied upon the receipts of repayment of the loan amount, which were exhibited as Ex.DW1/1 (Colly.).
In his crossexamination, the accused admitted that he has not placed on record the receipt which would reflect the payment of the entire loan amount. The accused further denied the suggestion that he had duly filled the particulars on the cheque in question, before handing it over to the representative of the complainant company. The accused volunteered that he had thrice obtained a loan from the complainant company, and he had given the cheque in question to the complainant company in blank signed condition when he had obtained the loan from the complainant company for the first time. The accused accepted as correct the suggestion that he had obtained a loan of Rs.50,000/ from the complainant company on 20.09.2016, which had to be repaid in equal instalments of Rs.500/ each for a period of 112 days, as per the loan agreement PLD0947 executed between the parties. The accused denied the suggestion that he had issued the cheque in question to the complainant company in January, 2019 towards the full and final settlement of the Pg. 9 of 24 C.C. No.7827/2019 loan account. The accused deposed on oath that he has not received any legal notice from the complainant. The accused denied the suggestion that the address mentioned on the legal notice is identical to the address mentioned by him on the date of his examination. The accused further denied the suggestion that he still has an outstanding liability of Rs.68,627/ towards the complainant. After this limited cross examination, the accused was discharged as witness.
11. No other witnesses were examined by the accused and the DE was closed on the statement of the accused vide order dated 21.09.2019.
12. The matter was then listed for final arguments. During the course of the final arguments, Ld. Counsel for the complainant argued that the accused deserves to be convicted for the offence punishable under Section 138 N.I. Act, as the accused has not been able to rebut the presumption raised against him by virtue of Section 139 of N.I. Act. Ld. Counsel for the complainant further submitted that even if the best case put forward by the accused is believed, the receipts adduced on record by the accused only reflect the repayment of amount of approx. Rs.18,000/ and not the entire loan amount. Ld. Counsel for the complainant submitted that though a plea to this effect was taken at several stages of the trial, the accused has not been able to prove on record the fact that the particulars of cheque in question were not filled by him, as he did not examine any handwriting experts, and therefore the very fact that the accused Pg. 10 of 24 C.C. No.7827/2019 had issued a cheque in question in favour of the complainant, combined with the fact that accused has not been able to prove the repayment of loan, should lead to the conviction of the accused.
Per contra, Ld. Counsel for the accused submitted that the accused has been able to successfully rebut the presumption under Section 139 N.I. Act. Ld. Counsel for the accused vehehmently submitted that the accused has proved on record, with the help of the receipt Ex.DW1/1(colly), that the loan amount has been repaid by the accused. Ld. Counsel for the accused submitted that these receipts have not been controverted by the complainant, and further the column of receipt where the complainant ought to have stated the balance due from the accused is blank, reflecting that even as per the complainant, the accused has no legal liability towards it. It was further submitted that perusal of the legal notice, Ex.CW1/D shows that complainant has demanded Rs.14,800/ which also shows an admission of complainant to the effect that the accused does not have an outstanding liability of Rs.68,627/ towards the complainant.
13. This court has perused the record of the case in the light of rival contentions of both the parties. Considered.
14. It would be apposite at this stage to briefly discuss the law applicable to the offence of dishonour of cheques. Section 138 makes an offence the dishonor of a Pg. 11 of 24 C.C. No.7827/2019 cheque given in discharge of a legally enforceable liability. The proviso to Section 138 contains the preconditions which must be fulfilled before an offence under the provision is made out. These conditions are
(i) presentation of the cheque to the bank within three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(ii) a demand being made in writing by the payee or holder in due course by the issuance of a notice in writing to the drawer of the cheque within thirty days of the receipt of information from the bank of the return of the cheques; and
(iii) the failure of the drawer to make payment of the amount of money to the payee or the holder in due course within fifteen days of the receipt of the notice.
The legal position was discussed by the Hon'ble Supreme Court of India in MSR Leathers vs. S. Palaniappan (2013) 1 SCC 177 , wherein it was held thus, "12. The proviso to Section 138, however, is all important and stipulates three distinct conditions precedent, which must be satisfied before the dishonour of a cheque can constitute an offence and become punishable. The first condition is that the cheque ought to have 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. The second condition is that the payee or the holder in due course of the cheque, as the case may Pg. 12 of 24 C.C. No.7827/2019 be, ought to make 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. The third condition is that the drawer of such a cheque should have failed to make 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. It is only upon the satisfaction of all the three conditions mentioned above and enumerated under the proviso to Section 138 as clauses (a), (b) and (c) thereof that an offence under Section 138 can be said to have been committed by the person issuing the cheque."
15. Needless to say, the aforesaid conditions mentioned in the proviso as well as the fact that the cheque in question was issued by the accused to the complainant towards a legally recoverable debt have to be cumulatively established, before a finding of conviction for the offence punishable under Section 138 N.I. Act can be returned against the accused.
16. The accused has not disputed the presentation of the cheque in question by the complainant for encashment within the statutory period. As regards the legal notice, it is the case of the accused that he did not receive the legal notice. Infact, the even the complainant could not successfully established that the legal notice was sent Pg. 13 of 24 C.C. No.7827/2019 to the correct address of the accused. However, record reveals that despite the due service of the process of the instant complaint upon the accused, consequent to which the accused entered appearance before this Court, the accused did not make the payment of the cheque amount to the complainant. As such, the plea of nonreceipt of legal notice does not aid the accused. At this juncture, this Court seeks guidance from the law laid down by the Hon'ble Supreme Court of India in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555 wherein it has been held as follows :
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case [(1999) 7 SCC 510 : 1999 SCC (Cri) 1284] if the "giving of notice" in the context of Clause (b) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the Pg. 14 of 24 C.C. No.7827/2019 premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."
The plea of nonreceipt of legal notice notwithstanding therefore, the accused can be said to have good notice of the present complaint. Despite this, the accused failed to pay the amount of the cheque in question to the complainant. Accordingly, the conditions of the proviso to Section 138 N.I. Act stands satisfied. Now, it remains to be seen if the complainant has been able to prove that the cheque in question was issued in his favour by the accused for a legally recoverable debt.
17. At this stage, it becomes imperative to mention Section 139 of the Negotiable Instrument Act, 1881 which carves out a presumption in favour of the drawee that the cheque was issued to him in discharge of a debt or other liability of a legally enforceable nature. Also, the said provision must be read alongwith the Section 118 of the same enactment which spells out another presumption in favour of the drawee that every negotiable instrument was drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
18. The first point of determination is whether the presumption under Section 139/118 Negotiable Instruments Act, 1881 can successfully be raised against Pg. 15 of 24 C.C. No.7827/2019 the accused. When his defence was recorded at the time when the notice under Section 251 CrPC was served upon him, the accused admitted his signatures on the cheque in question, and at no subsequent stage has the accused denied the same. In his statement under Section 313 CrPC, the accused stated that the cheque in question had been given by him to the complainant bank as a security cheque, and he had not filled the details in the same. It is a well settled that a person issuing a blank cheque is presumed to have authorized the holder of the cheque to fill up the blanks, and cannot escape his liability on this ground alone. Section 20 of the NI Act assumes relevance here, which states that prima facie, the holder of an inchoate negotiable instrument has the authority to complete the document. Reliance in this regard can also be placed on the judgment of the Hon'ble High Court of Delhi in Jaspal Singh vs State dated 16.11.2016 in Crl Revision Petition 160/2016. Therefore, this line of defence taken by the accused does not help the case of the accused. Accordingly, presumption under Section 139 R/w Section 118 N.I. Act can be successfully raised against the accused.
19. The offence of Section 138 NI Act being premised on the theory of reverse onus of proof, the next point of determination is whether the accused has been able to discharge the onus of proof placed upon him. The journey of trial qua a complaint under Section 138 NI Act commences, after a determination is made that the presumption as per Section 139/118 Negotiable Instruments Act, 1881, can be raised against the accused, from the point of the accused who is required to prove that Pg. 16 of 24 C.C. No.7827/2019 the cheque in question was not given for a consideration or for the discharge of any legally enforceable debt. In this regard, reliance can be place on Hiten P. Dalal Vs. 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 of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable probability of the nonexistence of the presumed fact.
23. In other words, provided the facts required to form the basis of a presumption of law exists, the discretion is left with Pg. 17 of 24 C.C. No.7827/2019 the Court to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man."
In the backdrop of the legal position enunciated above, it is to be examined whether the accused, on a scale of preponderance of probabilities, has led evidence sufficient to discredit the case of the complainant so as to shift the onus placed upon him to the complainant. As held by the Hon'ble Supreme Court of India in Kumar Exports vs Sharma Carpets (2009)2 SCC 513, the accused can either prove the nonexistence of consideration and debt by direct evidence, or by bringing on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non existence was so probable that a prudent man may act upon the plea that they did not exist. If this Court comes to the conclusion that the accused has not been able to rebut the presumptions raised against him, by failing to bring on record direct evidence or by even failing to Pg. 18 of 24 C.C. No.7827/2019 sufficiently perforate the case of the complainant, the complainant is entitled to a decision in his favour.
20. In the affirmative, it has been the defence of the accused that he has already repaid the loan amount to the complainant. However, the accused has not been consistent with respect to this line of the defence. At the time of framing of notice under Section 251 CrPC, the accused had stated that he has paid the part of loan amount and still has an outstanding liability of Rs.10,000/ approximately towards the complainant. In his examination in chief, however, the accused stated that he has repaid the entire loan amount to the complainant, and in support of this assertion, he relied upon the receipt being Ex.DW1/1 (Colly.). Bare perusal of these receipts reveal that they do not pertain to the entire admitted loan amount of Rs.50,000/. In all, the receipts reflect a payment of Rs.18,000/ by the accused to the complainant. Even though theses receipts have not been challenged by the complainant, they do not help the accused in establishing his case. As per Section 102 & 103 of Indian Evidence Act, 1872, the onus to prove the payment of the entire loan amount by the accused to the complainant was upon the accused, and in the considered opinion of this court, the accused has miserably failed to discharge this onus. That is to say, the accused has failed to prove his case in affirmative.
21. At the cost of reiteration, in order to rebut the presumption under Section Pg. 19 of 24 C.C. No.7827/2019 139 R/w Section 118 N.I. Act, on a scale of balance of probabilities, the accused has to either establish his case in the affirmative or is required to perforate the case of the complainant. It is now to be examined by this court whether the accused has been able to plug sufficient loopholes in the case of the complainant so as to discredit the case of the complainant. Towards this aim, an argument was raised by the accused to the effect that in the statutory legal demand notice Ex.CW1/D the complainant has only sought repayment of an amount of Rs.14,800/. It was argued that this should be considered as an admission of the complainant that the accused owes to it an amount of Rs.14,800/. However, in view of the fact that the accused did not admit the receipt of legal demand notice, this court is of the considered opinion that the accused cannot take the benefit of the discrepancy in the amount demanded in legal demand notice Ex.CW1/D. This discrepancy can be attributed to a typing error, as the case of the complainant has otherwise remained consistent. This line of the argument does not support the case of the accused.
22. The perusal of the testimony of CW1 during his crossexamination, however, shows that the accused has been able to sufficiently discredit the case of the complainant on a scale of balance of probabilities. The entire case of the complainant was premised on the fact that a loan of Rs.50,000/ was obtained from the complainant by the accused in 2016, and the accused did not repay any part of the loan amount , and finally on 02.01.2019 he issued the cheque in question to the complainant towards Pg. 20 of 24 C.C. No.7827/2019 full and final discharge of his liability towards the repayment of the loan amount as well as other attending charges. CW1 deposed to this effect in his examination in chief as well. However, in his crossexamination, CW1 admitted the fact that Rs.26,000/ had been repaid by the accused to the complainant by 13.10.2016. This is in the teeth of the entire case of the complainant that no repayment was ever done by the accused, thus bringing under a shadow of doubt the quantum of the legally enforceable liability of the accused towards the complainant.
23. Further, CW1 deposed in his crossexamination that no other payment was made by the accused after the said date, that is 13.10. 2016. When the receipt of repayment Ex.DW1/1 (Colly.) were adduced on the record by the accused/DW1, their authenticity or genuineness was not controverted by the complainant, which can be deemed to be an admission of the receipts as well as the contents there of by the complainant. These receipts Ex DW1/1 (colly) reflect the payment of Rs.11,000/ by the accused to the complainant in regard the loan agreement PLD0947 beyond 13.10.2016 as well. The admission by the complainant of the payment of an amount of Rs.26,000/ by the accused in the crossexamination of CW1, and further the deemed admission that the accused paid an amount of Rs.11,000/ as per the receipt Ex.DW1/1(colly) after the said date, discredits the case of the complainant to the effect that no repayment was done by the accused of the loan amount. The shadow cast over the quantification of the liability, if any, owed by the accused to the complainant thus Pg. 21 of 24 C.C. No.7827/2019 darkens.
24. In this backdrop, the defence of the accused that he had issued the cheque in question in blank signed condition in favour of the complainant also becomes relevant. While it is true that as per section 20 of the NI Act, the holder in course of an inchoate document is said to be possessing an authority to fill the document primafacie, this presumption is also easily rebuttable. Bare perusal of the cheque in question makes it abundantly clear that the cheque in question was not filled in by the accused. In exercise of the powers under Section 73 of the Indian Evidence Act, 1872 this court has arrived at the conclusion that the particulars of the cheque in question were filled by a person other than the accused. The signatures on the cheque in question are in Hindi, and the handwriting as well as the ink used for filling the particulars of the cheque in question considerably differ from the ink used for the signatures by the accused. This establishes the fact that the accused did not fill the details on the cheque in question. Nonexamination of handwriting/signature expert is immaterial, considering the clear difference in handwriting used over the cheque in question Ex.CW1/B. The amount of the legal liability of the accused towards the complainant being under a cloud of shadow already, the fact that the cheque in question was given by the accused to the complainant in blank signed condition fortifies the defence of the accused to the effect that the said cheque was misued by the complainant, who presented it for encashment of an amount which was greater than Pg. 22 of 24 C.C. No.7827/2019 the liability of the accused, at the very least. Even if the accused has not been able to establish that he had repaid the entire loan amount to the complainant, he had established that some repayment was done qua the said amount thus making doubtful the quantification of the liability of accused by the complainant.
25. DW1 deposed in his cross examination that he had obtained a loan from the complainant on previous occasions as well, and the loan amount of Rs 50,000/ described in the present case was advanced to him since he had repaid the loan amount on previous occasions. This part of the testimony of DW1 was not seriously challenged by the complainant, who only gave a suggestion that the accused was given a loan only on one previous occasion, and not two. Even if it is assumed that a loan was advanced by the complainant to the accused on one previous occasion, the fact that the said loan was successfully repaid by the accused is relevant as establishing prior conduct, and lends some added credibility to the version of the accused of having repaid the part of the loan amount of Rs 50,000/ as well.
26. On a scale of preponderance of probabilities, the accused has been able to sufficiently perforate the case of the complainant by establishing both that the cheque in question was not filled by him and that at the time of the presentation of the cheque, the amount of the cheque in question was not due from the accused to the complainant. The accused has thus been able to sufficiently rebut the presumption of Pg. 23 of 24 C.C. No.7827/2019 Section 139 / Section 118 of the NI Act.
27. The presumption under Section 139 / 118 N.I. Act is rebuttable in nature. Once dislodged, the onus shifts back to the complainant to prove his case beyond reasonable doubts. Now, it was upon the complainant to prove his case beyond reasonable doubt ie, no part of the loan amount was ever repaid by the accused, and the cheque in question was given by the accused towards final settlement of the said amount . Far from proving the liability of the accused for the amount of the cheque in question, the complainant has not been able to prove that the entire loan amount was outstanding from the accused, which is the case pleaded by the complainant in the complaint, and has in fact conceded to repayment of Rs.26,000/ by the accused at one go and has also conceded to subsequent repayment of an amount of Rs.11,000/ by the accused. The case of the complainant, thus, could not stand on its own legs.
28. Accordingly, the accused Naresh Pal S/o Sh. Nannu Ram is acquitted of the offence punishable u/s 138 NI Act with respect to the cheque in question. Digitally signed by MEDHA
MEDHA ARYA
ARYA Date:
2021.09.30
16:27:30 +0530
Announced in open Court on (MEDHA ARYA)
30th day of September, 2021 M.M. (N.I. Act03), SouthWest,
(24 pages) Dwarka Courts, New Delhi
Pg. 24 of 24 C.C. No.7827/2019