Delhi District Court
Lav Kush vs Mohd. Washim on 26 October, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE (NEGOTIABLE
INSTRUMENTS ACT) -07, SOUTH, SAKET COURTS, NEW DELHI
Presided over by: SH. RISHABH TANWAR
Court Complaint No. 273/2018
Lav Kush Vs. Mohd. Washim
DLST020007052018
A. CNR No. : DLST020007052018
B. Date of Institution : 11.01.2018
C. Date of commission of : 15.11.2018
offence
D. Name of the complainant : Sh. Lav Kush
s/o Sh. Gajinder Singh
R/o 2322/15, Block-L-1st,
Sangam Vihar, New Delhi
E. Name of the accused, his : Mohd. Wasim
parentage and address S/o Mohd. Fazal Haq
R/o H.no. 207, Gali no. 7,
L-Block, Back Side,
Sangam Vihar,
New Delhi-110080
F. Offence complained of : Section 138 Negotiable
Instruments Act, 1881
(hereinafter referred to as 'NI
Act')
G. Plea of the accused : Pleaded not guilty and claimed
trial.
H. Judgment reserved on : 05.10.2023
I. Date of Judgment : 26.10.2023
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CC no. 273/2018
CNR no. DLST020007052018
Lav Kush Vs. Mohd. Washim
Digitally signed
by RISHABH
RISHABH TANWAR
TANWAR Date:
2023.10.26
16:23:49 +0530
J. Final Order : CONVICTION
BRIEF STATEMENT FOR REASONS:
1. The instant matter originated out of a complaint under Section 138
Negotiable Instruments Act (hereinafter referred to as 'NI Act'), filed by
the Sh. Lav Kush (hereinafter referred to as 'the complainant') against
Mohd. Wasim (hereinafter referred to as 'the accused') alleging that
cheque bearing no. 67684 of Rs. 3,00,000/- dated 13.12.2017 drawn on
Axis Bank Ltd. at Aurangabad, Bihar Branch was issued by the accused
in favour of the complainant, in lieu of the repayment of a friendly loan
of Rs. 3,00,000/- that the accused had taken from the complainant. The
said cheque was dishonored when it was presented for payment. The
accused failed to pay the said amount even after receiving the prescribed
legal demand notice dated 13.12.2017. By virtue of this judgment, the
present complaint is being disposed of.
2. It is the case of the complainant that the accused approached him for a
friendly loan of Rs. 3,00,000/- in October 2017 for a period of one month
with the assurance that he will repay the loan amount on or before
November 2017. The complainant provided him with the loan amount
and when the accused did not return the loan amount after the said period
i.e. on November, 2017; the complainant approached accused for his
money and accused gave the cheque bearing No.67684 dt. 14.11.2014 in
discharge of the liability, drawn on Axis Bank Ltd. at Aurangabad, Bihar
Branch. The complainant presented the cheque which was returned
dishonored with remarks 'insufficient funds' vide dishonor memo dated
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CC no. 273/2018 Digitally signed
CNR no. DLST020007052018 by RISHABH
RISHABH TANWAR
Lav Kush Vs. Mohd. Washim Date:
TANWAR 2023.10.26
16:23:58
+0530
15.11.2017. The statutory legal notice dated 13.12.2017 was sent to the
accused, which was received by him, yet he failed to pay the cheque
amount within the statutory period and hence, the present complaint.
3. Summons were issued against the accused vide order dated 11.01.2018.
However, the process fee was not filed by the complainant for issuance
of summons and the complaint was dismissed vide order dated
07.09.2019. The complaint was again revived by the order of Ld. ADJ
South, vide order 11.02.2023. The accused appeared before the court for
the first time on 17.12.2022 wherein he was admitted to court bail subject
to furnishing personal bonds in sum of Rs. 30,000/- with one surety in the
like amount and the notice u/s 251 Criminal Procedure Code, 1973
(hereinafter referred to as 'Cr.PC' for the sake of brevity), explaining the
substance of accusation was served upon the accused on the same date.
The accused had pleaded not guilty and claimed trial. On oral application,
the opportunity to cross-examined the complainant u/s 145 (2) NI Act
was allowed.
4. The complainant examined as CW-1 wherein he adopted his pre-
summoning evidence by way of affidavit i.e Ex. CW1/A as his post notice
evidence and also relied upon the documents namely, the check in
question i.e CW1/1, the Cheque return memo Ex. CW1/2, the postal
receipt Ex. CW1/3, Statutory notice dated 13.12.2017 as Ex. CW1/4, the
reply of the accused to the abovesaid notice as Ex. CW1/5, the copy of
the DL of the complainant as Ex. CW1/6 and the complaint as Ex. CW1/7.
5. In his cross examination, the complainant admitted that as per his
knowledge the accused lives at H. NO. 207, Gali No. 7 Sangam
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CNR no. DLST020007052018
Digitally signed
by RISHABH
RISHABH TANWAR
Date:
Lav Kush Vs. Mohd. Washim TANWAR 2023.10.26
16:24:07
+0530
VihaVihar, Delhi and admitted that the house of the accused was a double
storey building. He had visited the house of the accused about four years
ago and he had an inverter shop. His annual income is approximately to
the tune of Rs.3 lakhs to Rs.4 lakhs and his monthly income is
approximately to the tune of Rs.35,000/-. He had a family of four
including his wife and 2 children. His son passed away on 21.08.2021.
He had given the loan amount in October 2017, he admitted he did not
know the exact date. The accused had his shop near his shop in Sangam
Vihar and he had known him for the last 15 years. The accused asked for
the loan in his shop for constructing his house in 2017 and CW-1 had
visited house of accused after full construction in 2018 and in year 2017
he had seen the plot of accused. He again said that ground floor of accused
was already constructed where the accused was residing and living
himself. He admitted he had given the loan amount in his shop and there
was no one present when the loan amount was handed over to the accused.
He further admitted that there was no one present when the accused had
asked him for the loan. He admitted that he didn't know the monthly
income of the accused, accused carries out business of welding and
denting. He admitted that he does not file ITR. He had given loan amount
in cash in 500- and 100-rupee notes without any interest. He admitted that
he had presented that cheque in question on 13.11.2017 and was
dishonoured on a subsequent date and he had filled the particulars on the
cheque except signature. He further admitted his son who expired in 2021
had also given loan to the accused which was given from the money kept
in his shop to the tune of Rs.2 lakhs but he didn't know that it is mentioned
in the complaint or not. He admitted that the loan given by his son i.e. in
October 2017 was not handed over in his presence but his son had told
him about the loan given to accused in November 2017. He admitted that
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CNR no. DLST020007052018 Digitally
signed by
RISHABH
Lav Kush Vs. Mohd. Washim RISHABH
TANWAR
TANWAR
Date:
2023.10.26
16:24:25
+0530
there was no loan agreement between the accused and me since the
accused had given him a cheque as security. He further denied all the
suggestions put to him. No further witnesses of the complainant were
examined.
6. Thereafter, vide order dt. 27.02.2023, the complainant closed his
evidence.
7. The accused in his statement u/s. 313 Cr.P.C stated that he had not availed
any loan from the complainant. He had known the complainant since he
had his shop in same neighbourhood. He had not issued the cheque in
question in favour of the complainant. He had kept a blank signed cheque
in his possession. He had lost the cheque as he had dropped it at Mangal
Bazar Road, Sangam Vihar. He had also filed a complaint with the police
when he realised the cheque was no longer in his possession. He had
received a legal notice from the complainant to which he replied on
22.17.2017. He didn't make the payment since he didn't owe any liability
towards the complainant.
8. Accused examined himself as DW-1 under Section 315 Cr.P.C on
05.06.2023.
9. DW-1 in his examination in chief stated that he didn't avail any loan from
the complainant. He had known the complainant since he have shop in
same neighbourhood. He had not issued the cheque in question in favour
of the complainant. He had kept a blank signed cheque in his possession.
He had lost the cheque as he had dropped it at Mangal Bazar Road,
Sangam Vihar. He had also filed a complaint with the police vide DD
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CC no. 273/2018 Digitally signed
CNR no. DLST020007052018 by RISHABH
RISHABH TANWAR
TANWAR Date:
Lav Kush Vs. Mohd. Washim
2023.10.26
16:24:34 +0530
Entry No.30B dt. 01.12.2017 in PS Sangam Vihar which was proved as
Ex.DW1/1 (OSR) when he realised the cheque in question alongwith two
other blank signed cheques were no longer in his possession. He had
received the legal notice from the complainant to which he had replied on
22.12.2017 which is already on record. He had not made the payment
within the statutory period since he did not owe any liability to the
complainant. The complainant had also misused his other two cheques,
the proceedings for one of which are pending in Tis Hazari Courts.
10.In his cross-examination, he stated that he was an illiterate and can sign
in Hindi. He admitted he got a complaint registered on 01.12.2017 for 3
cheques which were misplaced in Mangal Bazaar when he was removing
things from his bike. The cheque nook fell out of his possession which
had only 3 cheques and he had filed the complaint on same date when he
got to know that cheques were misplaced. He denied remembering the
cheque number and also when the cheque in question was issued to him
from the bank. He further denied all the suggestions put to him.
11.Thereafter, the defence evidence was closed on 28.08.2023 and case was
put for final arguments.
ARGUMENTS ADVANCED ON BEHALF OF THE PARTIES
12.Sh. Vinay Pal, ld. Counsel for the complainant has argued that the
complainant has been able to prove its case beyond the shadow of
reasonable doubts.
13.Sh. M. K. Sharma, ld. Counsel for the accused has argued that the
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signed by
RISHABH
CNR no. DLST020007052018 RISHABH TANWAR
TANWAR Date:
Lav Kush Vs. Mohd. Washim 2023.10.26
16:24:48
+0530
complainant had lost the present blank signed cheque, for which the
accused had also lodged a missing report vide DD no. 30B dated
01.12.2017 in P.S. Sangam Vihar. Ld. Counsel for the accused has further
argued that the complainant has also failed to prove his financial capacity
to be able to give a loan of Rs. 3L to the accused. He had also refuted that
no such loan was ever given by the complainant to the accused. He has
further argued that the complainant's testimony is full of material
contradictions. Ld. Counsel for the accused has further argued that the
complainant is not technically the complainant, and it is a complaint bad
in law, as in several paras and specifically, para 4 of the complaint, instead
of writing that the complainant had presented the cheque in question for
clearing, it was mentioned that his client had presented the cheque. He
had lastly argued that loan was allegedly given for one month for the
purpose of construction, however it would not have been possible to
finish the construction within a month.
14.Ld. Counsel for the accused has relied upon the judgement of Bharat
Heavy Electricals Ltd. & Ors. Vs. D. K. Sardana (Crl. M.C. no. 782/2008)
of the Hon'ble Delhi High Court and K. Subramani Vs. K. Damodara
Naidu 2014 (11) SCR 169 in support of his arguments.
FINDINGS OF THE COURT
15.I have heard the complainant as well as the accused. I have also carefully
perused the testimonies and evidence brought during the trial.
16.I shall deal with the arguments advanced by the Ld. Counsel for the
accused, as it is imperative for appreciation of the fact, since otherwise
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CC no. 273/2018
CNR no. DLST020007052018 Digitally
signed by
RISHABH
Lav Kush Vs. Mohd. Washim RISHABH
TANWAR
TANWAR
Date:
2023.10.26
16:24:58
+0530
the sine-qua-non of the section 138 NI Act have otherwise been proved
by the complainant.
17.Ld. Counsel for the accused has argued that the complainant has failed to
prove his financial capacity, in order to give the loan of Rs. 3,00,000/- as
alleged by the complainant. Any defence that is taken in the court, either
at the time of cross-examination of the complainant or under a statement
under section 313 Cr.P.C. or under defense evidence, must have a
precursor or a background, so to speak. Any defence, that is taken for the
first time in the court will not have a strong ground to stand if it is not
supported by any pre-dated fact/proof/allegation/document. The accused
had the said opportunity which began with receiving the legal notice,
which the accused never refused. The same was exhibited in evidence as
Ex. CW-1/5. I have perused the same and I find that the accused had
nowhere disputed or challenged that the complainant did not have the
wherewithal in Ex. CW-1/5. Further, the accused nowhere stated or
disputed the same either in his statement under section 313 Cr.P.C. or
under his defense evidence. Hence, the onus was not shifted upon the
complainant to lead cogent evidence to prove his financial capacity. I find
strength in holding the above from the judgement of Hon'ble Apex Court
in "Tedhi Singh Vs. Narayan Dass Mahant (2022) 6 SCC 735".
Wherein the Hon'ble Apex Court held that:
"9. The Trial Court and the First Appellate Court have noted that in
the case under Section 138 of the N. I. Act the complainant need not
show in the first instance that he had the capacity. The proceedings
under Section 138 of the N. I. Act is not a civil suit. At the time, when
the complainant gives his evidence, unless a case is set up in the reply
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CNR no. DLST020007052018 signed by
RISHABH
RISHABH TANWAR
Lav Kush Vs. Mohd. Washim TANWAR Date:
2023.10.26
16:25:09
+0530
notice to the statutory notice sent, that the complainant did not have
the wherewithal, it cannot be expected of the complainant to initially
lead evidence to show that he had the financial capacity. To that extent
the Courts in our view were right in holding on those lines. However,
the accused has the right to demonstrate that the complainant in a
particular case did not have the capacity and therefore, the case of the
accused is acceptable which he can do by producing independent
materials, namely, by examining his witnesses and producing
documents. It is also open to him to establish the very same aspect by
pointing to the materials produced by the complainant himself. He can
further, more importantly, achieve this result through the cross
examination of the witnesses of the complainant. Ultimately, it
becomes the duty of the Courts to consider carefully and appreciate
the totality of the evidence and then come to a conclusion whether in
the given case, the accused has shown that the case of the complainant
is in peril for the reason that the accused has established a probable
defence." (Emphasis supplied)
18.For the reasons stated above, the judgement in K. Subramani Vs. K.
Damodara Naidu (supra) relied upon by Ld. Counsel for the accused is
not applicable on the facts of the present case.
19.Further, Ld. Counsel for the accused has argued that the cheque in
question (Ex. CW-1/1) was lost by the accused in the market and when
he got to know about the same, he had lodged a report in the Sangam
Vihar Police Station (Ex. DW-1/1 OSR) dated 01.12.2017. In essence,
saying that the lost cheque somehow came into the possession of the
complainant, and he has misused the same to file the present complaint.
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CC no. 273/2018
CNR no. DLST020007052018
Digitally
signed by
RISHABH
RISHABH TANWAR
Lav Kush Vs. Mohd. Washim TANWAR Date:
2023.10.26
16:25:19
+0530
Adding to the support of the Ld. Counsel for the accused, I must also add
that the accused had duly mentioned the same in his reply to the legal
notice dated 22.12.2017 (Ex. CW-1/5) and also taken the same stand in
his statement under section 313 Cr.P.C. Now, the question that begs
attention is whether the accused, in leading such a defence, had raised a
probable defence? The answer is NO.
20."Repeat a lie often enough and people will believe it." It is what exactly
the accused has done. He has repeated the fact of losing the cheque in
question multiple times, expecting it to pass off as truth. However, the
circumstances surrounding the said fact makes this truth no better than a
lie. The circumstances are as follows:
a. Firstly, the cheque in question is dated 13.11.2017 and the same
had returned dishonoured vide return memo dated 15.11.2017 (Ex.
CW-1/2). The DD entry that the accused has placed reliance upon
is dated 01.12.2017. That means the accused had received the
information of his cheque being presented for payment on
15.11.2017, or to give him a benefit of doubt, within next 2-3 days.
However, he had lodged the DD entry only on 01.12.2017. It is
pertinent to note that he had stated nowhere that on which date he
had gone to the Mangal Bazar.
b. Secondly, he had not given any information of cheque being lost to
his bank, where he maintains his account. Nothing stopped the
accused from informing the bank as the accused was in possession
of the exact numbers of the cheques that were allegedly lost. No
such evidence has been led at any point during the trial.
c. Thirdly, in his defense under section 251 Cr.P.C., the accused had
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CNR no. DLST020007052018 Digitally signed
by RISHABH
RISHABH TANWAR
Lav Kush Vs. Mohd. Washim Date:
TANWAR 2023.10.26
16:25:28
+0530
stated that he had kept a blank signed cheque in his possession, and
he had lost the same, suggesting that there was only one cheque.
He later improvised and said he had lost three cheques, when he
examined himself under section 315 Cr.P.C. There appears to be an
inconsistency in the defense taken by the accused.
d. Fourthly, there appears to be a divine coincidence that the cheque
lost by the accused would end up in the possession of the
complainant, who happens to be the shopkeeper in the same
vicinity as the accused.
e. Lastly, though the accused had stated that he had lost three cheques,
including the cheque in question, that were present in the cheque
book, no such cheque book was ever brought into evidence by the
accused.
21.Therefore, I find that though the accused had led a defense that his
cheques were lost and the same were used by the complainant to file the
present complaint, the said defense is weak and feeble in nature. It is
surrounded by suspicion, which has ultimately destroyed its credibility. I
might just add that the said defense appears to be a farce, engineered only
to defeat the rights of the complainant.
22.Ld. Counsel for the accused has further argued that the complaint is bad
in law and the complainant is not a proper complainant. In this regard, it
would suffice to say that it may be a sheer technical/clerical error on part
of the drafting counsel, who perhaps out of indolence, did not see the error
in drafting. It is also pertinent to note that no such objection had been
taken during the trial, though the copy of the complaint was given to the
accused as the onset of the trial. Hence, this argument cannot be
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Lav Kush Vs. Mohd. Washim RISHABH
RISHABH
TANWAR
TANWAR Date:
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entertained at this penultimate stage and is liable to be rejected.
23.Ld. Counsel for the accused has also relied upon the judgement of Bharat
Heavy Electricals Ltd. & Ors. Vs. D. K. Sardana (Crl. M.C. no. 782/2008)
of the Hon'ble Delhi High Court to rely on the point that the complainant
did not come to the court with clean hands and his case is liable to be
rejected on this ground alone. Suffice to say, that the fact of the said case
is not applicable in the present case as in the said case, the
respondent/complainant had concealed that fact of receiving a reply from
the petitioner/accused regarding why the earlier cheque was stopped from payment and the respondent/complainant had also hidden the fact that a fresh cheque of the true liability was later issued to him. However, in the present case, no material facts have been concealed by the complainant.
24.Lastly, Ld. Counsel for the accused has argued that the testimony of the complainant is full of contradictions and inconsistencies. After perusing the testimony of CW-1, I do not find any material contradictions in the same. It was alleged by CW-1 that the accused had taken the loan for the purpose of construction on his plot. Now, merely by stating that CW-1 admitted that ground floor was already constructed at the plot of the accused, does not negate the possibility of any further construction upon the same. Different interpretations can be given to words, yet interpretations and contradictions are two different concepts.
25.It is further pertinent to note that the accused nowhere has disputed his signature upon the cheque in question. The Hon'ble Apex Court in 'Basalingappa v. Mudibasappa, AIR 2019 SC 1983', noted at para 23 as follows [Bharat Barrel and Drum Manufacturing Company v. Amin 12/16 CC no. 273/2018 CNR no. DLST020007052018 Digitally Lav Kush Vs. Mohd. Washim signed by RISHABH RISHABH TANWAR TANWAR Date:
2023.10.26 16:25:43 +0530 Chand Pyarelal, (1999) 3 SCC 35; M.S. Narayana Menon alias Mani v. State of Kerala and another, (2006) 6 SCC 39; Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54; Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513; Rangappa v. Sri Mohan, (2010) 11 SCC 441 referred]:
(i) Once the execution of cheque is admitted, Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(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 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.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposes 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."
26.The nature of presumptions has been beautifully explained in the judgment of Cochran, J. in Stumpf v. Mantgomery, (1924) 101 OKL 256 13/16 CC no. 273/2018 CNR no. DLST020007052018 Digitally signed by RISHABH RISHABH TANWAR Lav Kush Vs. Mohd. Washim Date:
TANWAR 2023.10.26 16:25:51 +0530 Pac 85 of the American Court (quoted in Wigmore para 2491, page 291) as follows:
"Presumptions.... may be looked on as the bats of law, flitting in the twilight, but disappearing in the sunshine of facts."
27.Furthermore, the Hon'ble Supreme Court, speaking through Hon'ble Justice R. Banumathi, held in the judgment of 'M/S.Shree Daneshwari Traders vs Sanjay Jain' (2019 SCC OnLine SC 1067) that:
"Applying the definition of the word "proved" in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists.
The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and 14/16 CC no. 273/2018 CNR no. DLST020007052018 Digitally signed by RISHABH RISHABH Lav Kush Vs. Mohd. Washim TANWAR TANWAR Date:
2023.10.26 16:25:58 +0530 "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over."
28.Needless to mention, I have already demonstrated, in the preceding paragraphs, the fallibility of the defense taken by the accused, which has resulted into the conclusion that the accused has miserably failed to rebut the presumption, raised in favour of the complainant once the execution of the cheque is admitted.
CONCLUSION
29.The accused in the present case has failed in establishing that a legally recoverable debt did not exist in the present case. On the other hand, the complainant has been able to prove the essential ingredients of section 138 NI Act against the accused.
30.Consequently, the Accused, Mohd. Washim, is therefore found guilty and is hereby convicted for the offence punishable u/s 138 NI Act qua the cheque in question in the present case.
31.This judgment contains 14 pages. This judgment has been pronounced by the undersigned in the open court and each page bears the signatures of the undersigned.
15/16CC no. 273/2018 Digitally signed
CNR no. DLST020007052018 by RISHABH
RISHABH TANWAR
TANWAR Date:
Lav Kush Vs. Mohd. Washim
2023.10.26
16:26:05 +0530
32.Let a copy of the judgment be uploaded on the official website of District Courts, Saket forthwith and a copy of this judgment be given free of charge to the accused against acknowledgment.
Digitally signed by RISHABH RISHABH TANWAR Announced in the open court Date: TANWAR 2023.10.26 16:26:13 on this 26th Day of October 2023 +0530 (Rishabh Tanwar) MM (NI Act)-07/SD, Saket District Courts 16/16 CC no. 273/2018 CNR no. DLST020007052018 Lav Kush Vs. Mohd. Washim