Interim Order 21

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF MS. BHARTI BENIWAL, JUDICIAL
MAGISTRATE FIRST CLASS, NI ACT, DIGITAL COURT-1,
PATIALA HOUSE COURT, NEW DELHI
CNR No. DLND020965152022
CC No.9088/2022
Sonu
S/o Ramesh
R/o House No.443/1624,
Gali No.10, Mandoli Extension,
Delhi-110093
…… Complainant
Versus
Puran Chand
S/o Het Ram
R/o House No.A-470/1650,
Gali No.10, Mandoli Extension,
Delhi-110093
…… Accused
Offence complained of : 138 NI Act
Total Cheque Amount : Rs.2,00,000/-
Plea of accused : Pleaded not guilty
Date of institution of case : 01.10.2022
Date of final order : 03.08.2024
Final Order : Conviction
Sonu Vs Puran Chand. CC No.9088/2022
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JUDGMENT
1. Vide this judgment, I shall dispose of the complaint filed by
the complainant under Section 138 of the Negotiable Instruments
Act, 1881.
2. The necessary facts for disposal of the present case as
reflected in the complaint is that complainant and accused are
neighbours and are known to each other for last 20 years. That in the
month of February 2020, accused approached the complainant with
intention to start his business of trading of jewellery and sought
financial help of Rs.6 Lakhs from the complainant. That on
17.02.2020, the complainant transferred amount of Rs.1,00,000/-
through electronic mode in the account of the accused and on
18.02.2020, an amount of Rs.1,00,000/- was further transferred
through electronic mode. That the complainant further handed over
a cheque bearing no.028797 for amount of Rs.1,00,000/- drawn on
ICICI Bank, Janpath Branch, New Delhi-110001 to the accused and
same got encashed by him. That on 20.02.2020, amount of Rs.3
lakhs was advanced to the accused in cash. It has been further stated
in the complaint that at the time of receiving the total loan amount
of Rs.6 lakhs, the accused assured the complainant that he would
return the total amount within 12 months. That the accused further
agreed to pay interest on the loan amount at the rate of 2% per
month till the repayment of the loan amount. However, no amount
was ever paid by the accused person, and after great persuasion, in
the month of April 2022, accused issued three cheques against the
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discharge of his loan liability in favour of the complainant. The
details are as follows:
a) Cheque No.000043 dated 16.06.2022 for amount of
Rs.2,00,000/- drawn on RBL Bank, Capitol Point Branch,
Baba Kharak Singh Marg, Connaught Place, New Delhi-
110001.
b) Cheque No.000044 dated 07.07.2022 for amount of
Rs.2,00,000/- drawn on RBL Bank, Capitol Point Branch,
Baba Kharak Singh Marg, Connaught Place, New Delhi-
110001.
c) Cheque No.000045 dated 20.07.2022 for amount of
Rs.2,00,000/- drawn on RBL Bank, Capitol Point Branch,
Baba Kharak Singh Marg, Connaught Place, New Delhi-
110001.
3. The complainant further alleged that on presentation of the
Cheque No.000044 dated 07.07.2022 Ex.CW1/B with its banker, the
said cheque was dishonored with the remarks ‘Funds insufficient’
vide returning memo dated 07.07.2022 Ex.CW1/C. Thereafter legal
demand notice dated 20.07.2022 Ex.CW1/D was served upon the
accused person calling him to pay the cheque amount but despite the
service of the legal notice, accused did not pay cheque amount
within the stipulated period of 15 days as per in the Negotiable
Instruments Act, 1881. Thereafter, complainant has filed the present,
written complaint case under Section 138 of the Negotiable
Instruments Act, 1881.
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4. After careful perusal of the record and upon appreciation of
the pre-summoning evidence, cognizance of offence under Section
138 the Negotiable Instruments Act, 1881 was taken and summons
were issued. Notice of accusation under Section 251 Cr.P.C for the
offence under Section 138 the Negotiable Instruments Act, 1881
which was framed against him, to which he pleaded not guilty and
claimed trial. At this stage, the following aspects were
admitted/denied by him:
4.1 Signatures on the cheque in question –
Denied
4.2 Filling up the material particulars –
Denied
4.3 Receiving the legal demand notice –
Denied
4.4 Whether his correct postal address was mentioned
on the legal demand notice –
Admitted
4.5 Genuineness of the returning memo -
Admitted
In his defence he stated that :-
“My plea of defence is that I do not have the liability of
the cheque amount towards the complainant. The cheque
in question was given to the complainant as the
complainant promised to secure a loan of Rs.20– 25 lakhs
for me but no such loan was ever provided to me. A false
and fabricated complaint has been filed by the
complainant. I do not want to say anything further.”
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5. In the post summoning evidence, complainant Sonu has been
examined as sole complainant witness for proving his version of the
case and was duly cross-examined by Ld. Counsel for accused. He
tendered his evidence by way of an affidavit, which is Ex.CW1/1
and relied upon the following documents:
(i) Statement of account for the month of February 2020
is Mark A (colly)
(ii) Original Cheque No.000044 dated 07.07.2022,
which is Ex.CW1/B
(iii) Returning Memo dated 07.07.2022, which is
Ex.CW1/C
(iv) Legal Demand Notice dated 20.07.2022, which is
Ex.CW1/D.
(v) Postal Receipt, which is Ex.CW1/E
(vi) Returning envelope, which is Ex.CW1/F
(vii) Tracking Report, which is Ex.CW1/G.
6. Thereafter, CW1 has cross examined. During cross-
examination, the following notable points emerged:-
6.1 He could not state as to who filled the particulars on
the cheque in question.
6.2 The signatures of the accused on the cheque in
question were not affixed in his presence and the
particulars were also not filled in his presence.
6.3 That he has not mentioned the fact of advancement
of the loan in his ITR
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7. Thereafter, memorandum of statement of accused under
Section 313 Cr.P.C was also recorded. Accused stated that the loan
amount was not advanced by the complainant as financial help for
his business. That at the relevant time, the accused was in the need
of the loan and his credit score was low. That the complainant
assured the accused that he would deposit some amount in his bank
account in order to raise his credit score so that he could obtain loan
from the bank. That the amount deposited by the complainant in the
bank account of the accused is for the same reason and the amount
was returned to the complainant after withdrawing from his bank
amount. That no amount of Rs.3 lakhs in cash and one lakh by way
of cheque was received by him. That the cheque in question was
given as security cheque as the complainant promised the accused to
secure him a loan of Rs.20–25 Lakhs.
8. Accused opted to lead defence evidence. Several
opportunities were given to the accused to lead DE. The DE was
closed by order of the Court dt.18.07.2024 and thereafter, the matter
was listed for final arguments.
9. In the final arguments, Ld. Counsel for complainant stated
that the accused has denied his signatures on the cheque in question,
however, the impugned cheque got dishonoured due to insufficient
funds and not on account of different signatures of the drawer. It
was further argued that accused did not lead DE. He further averred
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that accused has failed to raise any probable defence in order to
rebut the presumption raised against him under Section 139 r/w
Section 118(a) the Negotiable Instruments Act, 1881, therefore,
accused is liable to be convicted under Section 138 the Negotiable
Instruments Act, 1881.
10. In rebuttal, Ld. Counsel for accused in his final arguments
reiterated the version of the accused in answer to the notice under
Section 251 Cr.P.C. and stated that the present cheque in question
was given as security cheque to the complainant as the complainant
assured the accused to secure a loan of Rs.20–25 Lakhs. He further
argued that the accused has no liability towards the complainant as
no transaction took place between the complainant and the accused.
He further submitted that the case of the complainant is inherently
weak and suffers from material lapses as the complainant could not
tell the exact date when the loan amount was advanced by him, and
same is not sufficient to establish the guilt of the accused, and the
complainant has failed to prove it’s case beyond reasonable doubt,
and accused is liable to be acquitted under Section 138 Negotiable
Instruments Act, 1881.
11. I have gone through the entire record and carefully perused
the evidence led by the parties, but before appreciating the facts of
the case at length for arriving at any conclusion, let the relevant
position of the law be discussed first.
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12. Before finding the conviction of the accused under Section,
138 Negotiable Instruments Act, 1881, it has to be established by
the complainant cumulatively that:
(i) The cheque in question was issued by the accused in
favour of the complainant to discharge the legally
enforceable liability;
(ii) The cheque was presented before the bank for
encashment within three months from the date on
which it is drawn, or within the period of its validity,
whichever is earlier;
(iii)A demand is made in writing by the payee or holder in
due course, by the issuance of a notice in writing to
the drawee of the cheque within 30 days of the receipt
of information from the bank of the return of the
cheque and;
(iv)There is a failure of the drawer to make payment of
the cheque amount to the payee or the holder in due
course within 15 days of the receipt of the notice
13. This legal position was discussed by Hon’ble Supreme Court
of India in case titled as MSR Leathers Vs. S.Palaniappan (2013) 1
SCC 177, wherein it was held that,
“6….. The proviso to Section 138, however, is
all important and stipulates, three distinct
conditions precedent, which must be satisfied
before dishonour of a cheque can constitute an
offence and become punishable. The first
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condition is that the cheque what 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 maybe, 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
maybe, 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.”
14. This court shall now examine if the aforesaid four ingredients
as described in the forgoing paragraph have been duly satisfied in
the present case or not.
15. In the case at hand, it is not in dispute that the cheque in
question was drawn by the accused from his bank account.
Presentation of the cheque in question by the Complainant is also
not in dispute; and the genuineness of the return memo has not been
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disputed by the accused. Accordingly, condition no. (ii), as above
stands satisfied.
16. Accused has stated that he did not receive any legal demand
notice from the complainant, however, admitted that he is residing at
the address mentioned on the legal demand notice. During the
course of argument, it was argued by Ld. Counsel for the accused
that since the accused did not receive the legal demand notice, no
reliance can be placed upon it and the ingredients of section 138 NI
Act are not fulfilled.
17. The successive Interpretation of Section 27 of the General
Clauses Act, 1887, read with Section 114 of the Indian Evidence Act
has obviated the need of the complainant to adduce positive
evidence regarding receipt of demand notice by the accused. It is
now settled law that if the demand notice is properly and correctly
addressed, there is presumption of service thereof. It is then for the
accused to prove that he did not receive the demand notice and this
cannot be accomplished by a mere denial. For this proposition,
reliance is placed upon the pronouncements of the Hon’ble Supreme
Court in C.C. Alavi Haji Vs Mohammad & Anr. (2007) 6 SCC
555 (3 Judges bench) reiterated in Ajeet Seeds Ltd Vs K. Gopala
Krishnaih VI (2014) SLT 524. The reason for casting this
evidentiary burden upon the complainant is to ensure that
unscrupulous drawers are not given a wide berth to escape the rigor
of law merely by manipulating the postal report at their end.
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18. I have carefully perused the legal demand notice Ex.CW1/D,
postal receipt Ex.CW1/E and Returning envelope Ex CW1/F. On
perusal of the returning envelope, it is apparent that the
addressee/accused refused to take it. It is pertinent to note that the
complainant was examined at length by the accused side and not
even a single suggestion or question was put to the accused on this
point. Under the aforesaid circumstances, in my considered opinion,
there arises a presumption in terms of Section 27 of General Clauses
Act in favour of complainant regarding service of legal notice of
demand upon the accused and since the accused has failed to reply
to the aforesaid legal notice of demand, an adverse inference needs
to be raised against the accused admission by him of all the
averments made by the complainant in the aforesaid legal notice.
19. In view of the above mentioned, it can safely culled out that
condition no. (iii) and (iv) as above also stands satisfied.
20. It is now only remains to be seen whether the accused issued
the cheque in question Ex.CW1/B, in favour of the complainant in
order to discharge its legally enforceable debt or liability, or not.
21. It is pertinent to note that at the time of framing of notice,
accused denied that he has signed the cheque in question. He was
given an opportunity to explain the circumstances under which the
cheques were handed over to the complainant, however, he chose to
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maintain silence. Nothing was explained how the cheques came in
possession of the complainant. However, in a statement recorded
under section 313 Cr.P.C, he made an improvement and stated that
the cheque in question were handed over to the complainant for
security purpose as the complainant had ensured the accused person
to secure a loan. In fact, the cheque in question got dishonored due
to insufficient funds in the account of the accused and not on
account that the signatures of the drawer were different. Further,
when the accused is has denied his signatures on Ex.CW1/B then, in
support of his denial of signature, he has neither entered in the
witness box to adduce his substantive oral evidence before the court,
nor he has filed any application before the court to send the disputed
cheque Ex.CW1/B to handwriting expert by collecting admitted
signature for examination, and in the absence of doing this exercise,
mere denial office signature on the cheque, the defence taken by the
accused does not appear to be a probable one.
22. In the statement under section 313 Cr.P.C, accused has
admitted issuance of the cheque in question. Therefore, when the
accused has been admitting his issuance of cheque Ex.CW1/B, and
without any taking steps to send the signature at cheque Ex.CW1/B
to the handwriting expert, I am of the considered opinion that, just
to evade from the liability of this case, the said defence was taken
by the accused.
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23. Section 73 of Evidence Act empowers this court to compare
the disputed signature of a person with his admitted signatures. In
the case in hand, the admitted signatures of the accused are found on
the notice as well as on the memorandum of statement recorded
under section 313 Cr.PC. The said signatures of the accused on
notice under Section 251 Cr.P.C. and memorandum of statement
recorded under section 313 Cr.PC, appears to be very identical,
similar and one and the same. In view of the same, this court is
satisfied that execution of the cheque has been proved.
24. Negotiable Instrument Act,1881 raises two presumptions in
favour of the holder of the cheque, as soon as the execution of the
cheque is proved. Firstly, under Section 118 (a) Negotiable
Instrument Act,1881, with respect to the consideration that every
negotiable instrument was made or drawn for consideration and then
such instrument has been accepted, transferred, negotiated, or
endorsed was accepted, endorsed, negotiated or transferred for
consideration. Secondly, a presumption under Section 139
Negotiable Instrument Act,1881 that it shall be presumed that the
holder of the cheque for discharge, in whole or in part of any date or
other liability unless contrary is proved.
Section 118(a) of the Negotiable Instrument Act,1881 provides:
Presumptions as to negotiable instruments.—Until the
contrary is proved, the following presumptions shall be
made :- of consideration:— that every negotiable
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instrument was made or drawn for consideration, and that
every such instrument, when it has been accepted,
indorsed, negotiated or transferred, was accepted,
indorsed, negotiated or transferred for consideration;
Section 139 of the Negotiable Instrument Act,1881 provides:
It shall be presumed, unless the contrary is proved, that
the holder of a cheque received the cheque of the nature
referred to in Section138 for the discharge, in whole or in
part, of any debt or other liability.
However, both the presumptions are rebuttable in nature as held by
Hon’ble Supreme court of India in case titled as Basalingappa Vs.
Mudibasappa (2019) 5 SCC 418. The same is reproduced as under:
“23. We have noticed the ratio laid down by this Court in
above cases on Section 118(a) and 139, we now
summarize the principles, enumerate it by this Court in
the following manner:
(i) Once the execution of cheque is admitted, Section
139 of the Act mandates a presumption that the
cheque was for discharge of any debt or legal
liability.
(ii) The presumption under Section 139 is a rebuttable,
presumption and onus is on the accused to raise the
probable defence. The standard of proof for reporting
the presumption is that of preponderance of
probabilities.
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(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 the delay.
(iv)That it is not necessary for the accused to come in the
witness box in support of his defence. Section 139
imposed on evidentiary burden and not a persuasive
burden.”
25. As per the ratio laid down by Hon’ble Supreme Court of India
in the above-mentioned judgment, the presumption under Section
118(a) r/w 139 of the Act, has to be compulsorily raised against the
accused once the execution of cheque by the accused is either
admitted or proved by the complainant, and thereafter, the burden
shifted upon the accused to prove otherwise. These presumptions
shall be rebutted only when the contrary is proved by the accused i.e
the cheque was not issued for consideration, and in discharge of any
debt or liability.
26. In the present case, execution of the cheque in question has
been proved. Reference in this regard can also be made to
judgement of the Hon’ble Apex Court in Rangappa Vs. Mohan AIR
2010 SC 1898, that once the signatures in the cheque is admitted to
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be that of the accused, the presumption envisaged in Section 118 of
the Act can be legally inferred that the cheque was made or drawn
for consideration on the date which the cheque bears. Section 139 of
the Act enjoins on the Court to presume that the holder of the
cheque received it for the discharge of any debt or liability.
In view of the foregoing discussions, this Court is of
considered opinion that a presumption under Section 139 r/w 118(a)
Act duly be raised against the accused.
27. Since the above said two presumptions have duly been raised
against the accused, our next point of determination is that whether
the accused is able to rebut the abovesaid presumptions or not. It is
now settled law that accused can rebut these presumptions on a
scale of standard of preponderance of probabilities, or to rebut these
presumptions, it is open for the accused to rely upon the direct
evidence led by himself, or in exceptional cases, the accused can
also rely on materials submitted by the complainant in order to raise
a probable defence. Reliance in this regard, can be placed on
judgement of Hon’ble Supreme Court of India in the case of Hiten
P.Dalal Vs. Bratindranath Banerjee (2001) 6 SCC, wherein it was
stated that :
“…………Because both sections 138 and 139
require that the Court ‘shall presume’ the liability
of the drawer of the cheque for the amount for
which the cheque are drawn,…. It is obligatory on
the court to raise this presumption, in every case
where the factual basis for the raising of the
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presumption had been established. It introduces
an exception to the general rule as to the burden
of proof in criminal cases and shift the onus on
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 possibility of non-existence of the
presumed fact.
In other words, provided the facts required to
form the basis of a presumption of law exists, no
discretion is left with the Court but to draw the
statutory conclusion, but this does not preclude
the person against who the presumption is drawn
from rebutting it and proving the contrary. The
rebuttal does not have to be conclusively
established but such evidence must be a dude
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 a
‘prudent man’.”
28. In the backdrop of legal position as enunciated above, it is
now to be examined by this Court that whether the accused on a
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scale of preponderance of probabilities has been able to rebut the
presumptions which has been raised against him and in favour of the
complainant, or has been able to demolish the case of the
complainant to such extent to shift the onus placed upon the accused
back again on the complainant, and if the Court comes to the
conclusion that 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 sufficiently perforate the case of the complainant, the
complainant is entitled to a decision in his favour.
29. In light of the aforesaid legal position, this Court shall now
first examine that whether the accused has been able to prove his
defence in affirmative or not, by carrying out scrutiny of the
evidence which has been led at the trial. In the case in hand, the
accused in his plea of defence at the time of framing of notice stated
that he does not have any liability of the cheque amount towards the
complainant. That the complainant had promised the accused to
secure a loan of Rs.20–25 lakhs but no known was provided.
However, he made improvements in his statement recorded under
section 313 Cr.P.C. After the evidence of the complainant, the
accused admitted that he had obtained certain amount from the
complainant. It is pertinent to note that no such submission was
given by the accused at the time of framing of the notice. Accused in
his statement under Section 313 Cr.P.C. stated that the amount
deposited by the complainant was withdrawn and handed over to the
complainant at a later stage. However, no bank account statements
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were produced before the court in order to establish the stand of the
accused person. In absence of any oral or documentary evidence, no
reliance can be put on the statement of accused person which was
given in the court without oath.
30. The fact that the cheque in question was given as security was
taken for the first time at the time of statement under Section 313
CrPC. Mere submission that he had not taken any loan amount is
merely hearsay evidence and does not have any persuasive value.
The accused person has not questioned the complainant on the point
that the cheque in question was given as security. No suggestion was
put in this regard. To rebut the presumption, the accused was
required to lead the evidence but, in the present case, no evidence
has been led by the accused. The story put forward by the accused
that the cheque was given by way of the security is not believable in
the absence of further evidence to rebut the presumption. Further, no
evidence in form of written communication or otherwise has been
brought on record to show the fact of seeking a return of the said
cheque in question.
31. The Hon’ble High Court of Delhi in the case of V.S. Yadav
Vs. Reena 172 (2010) DLT 561, where the accused had similarly
pleaded that no loan was ever taken and yet the security cheques
were not returned by the complainant noted that:
“
In order to rebut the presumption under Section
139 of NI Act, the accused, by cogent evidence,
has to proof the circumstances under which
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cheques were issued. It was for the accused to
prove if no loan was taken, why he did not write a
letter to the complainant for return of the cheque.
Unless the accused had proved that he acted like a
normal businessman/prudent person entering into a
contract, he could not have rebutted the
presumption under Section 139 NI Act. If no loan
was given but cheques were retained, he
immediately would have protested and asked the
cheques to be returned and if still cheques were not
returned, he would have served the notice upon the
complainant. Nothing was proved in the case.”
Now coming back to the facts of the present case, the fact of
request for return of the cheque has not been proved by the accused
to the standard of preponderance of probabilities.
24. During the course of final arguments, it was argued by ld.
Counsel for the accused that the complainant has not mentioned the
factum of advancing loan amount to the accused in his ITR. It is
settled law that non-disclosure of liabilities in ITR, may give rise to
consequences under Income Tax Act, 1961, but same does not make
the transaction illegal/void and hence, the liability under Section
138 NI Act remains untouched. Reliance is placed on the decision of
Hon’ble High Court of Delhi in the case of Dilip Chawla Vs.
Ravinder Kumar & Ors. 2017 SCC Online DEL.9753. Hence,
infraction of provisions of Income Tax Act remain a matter between
revenue and defaulter and the advantage thereof cannot be taken by
defaulting borrower.
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25. In view of the above discussion, this Court is of considered
view that accused Puran Chand has failed to create a reasonable
doubt over the veracity of story of the complainant by balance of
probabilities. This court is of the considered opinion that the
accused has failed to rebut the presumption under Section 139 of
Negotiable Instruments Act, 1881 in favour of the Complainant and
ingredients of Section 138 of Negotiable Instruments Act, 1881 are
fully proved. Therefore, accused is held guilty and convicted for
commission of offence punishable under Section 138 of the
Negotiable Instrument Act, 1881. Copy of the judgment be given to
accused.
Announced in open court on this 3rd day of August, 2024.
This judgment comprises of 18 pages and each page has been
signed by the undersigned.
BHARTI BENIWAL
JUDICIAL MAGISTRATE FIRST
CLASS, (NI ACT) DIGITAL COURT-1,
PATIALA HOUSE COURT, NEW DELHI
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