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Naresh Shadija vs Sudhir Pahwa

14. In the judgment "K.N. Beena Vs. Muniyappan, AIR 2001 SC 2895, where it was held that mere denial / averments in reply by the accused are not sufficient to shift the burden of proof onto the complainant. Accused has to prove in trial by leading cogent evidence that there was no debt or liability, which in the present case accused has not done.

15. From the material on record, it is well established that both the complainant and accused are neighbours and have friendly relations from quite some time. Accused has admitted issuing the cheque in question as blank unsigned cheque to the complainant for security purpose, in his statement under section 313 Cr.P.C. Accused in his evidence admitted giving of the cheque in question as security in lieu of the Chit Fund committee which he had taken from the complainant. Accused has taken the defence that he requested the complainant several times to return his cheques but he did not return back the cheques. Assuming for a moment that the accused issued the cheques in question as security in lieu of Chit Fund Committee then what prevented him to lodge any complaint with the Registrar of Chit Funds with respect to the alleged Chit Committee run by the complainant and the alleged fraud committed by him to the accused. Also, the Naresh Shadija vs Sudhir Pahwa accused could not give any name of the Chit Committee, any membership number or membership receipt. Meaning thereby that the accused did owe a debt and liability towards the complainant. The accused has also taken the defence that on 05.01.2007, a quarrel took place between the complainant and him and complainant took away some cheques from his drawer. He made a complaint to the police, but the police did not take any action. He also gave a complaint to DCP, North Civil Lines and on 16.02.2007 and 17.02.2007, he also gave complaint to the Commissioner of Police, Delhi. He has also filed a criminal complaint against the complainant on 15.03.2011. A careful perusal of the dates of these complaints reveal that filing of these complaints appears to be an afterthought. An incident which is as old as 05.01.2007 as per the deposition of the accused a complaint regarding the same before the Court of Law is filed on 15.03.2011, i.e. three years after the incident. Meaning thereby it is clearly an afterthought, on the part of the accused. Moreover, they are separate proceedings and have no relevance for the present case. Accused examined two more witnesses i.e. Sh. Yashpal and Sh. Suraj in his defence, who stated that they were also member of the alleged Chit Fund Committee. However, both of them could neither give any particulars of the committee nor could tell which of their cheque number was given to Naresh Shadija Naresh Shadija vs Sudhir Pahwa as security. Their evidence is of no help to the accused. Resorting to legal remedy u/s 138 N.I Act and simultaneously filing a recovery suit is not barred by law. Hence accused has miserably failed in creating any reasonable probable defence and to rebut the statutory presumption in favour of the complainant.