IN THE COURT OF MR. [ENTITY], METROPOLITAN MAGISTRATE, SOUTHWEST, DWARKA, NEW DELHI In Re: CNR No. DLSW020025902016 CC No. 4992698/2016 Mr. [ENTITY] S/o Sh. Ram T Batra R/o H. No. 3, Road No. 19, East Punjabi Bagh, New Delhi. Complainant Versus Sh. [ENTITY] S/o Sh. Manbar Singh R/o Flat no.110/6, Sector 1 M B Road, Pushp Vihar New Delhi 110017 Also At [ENTITY] (Assistant) ID no A 071206 Naval Head Quarter, PSB Branch (Project See Bird Branch), West Block V, Sector 1, R K Puram, New Delhi Accused (1) Offence complained of or proved : 138 N.I. Act (2) Plea of accused : Pleaded not guilty (3) Date of registration of case : 26.04.2016 (4) Date of conclusion of arguments : 24.10.2019 (5) Date of Final Order : 25.11.2019 (6) Final Order : Convicted [ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 1 of 25 JUDGMENT
1. Vide this judgement I shall dispose off the present complaint case filed under [SECTION], Negotiable [ACT] (hereinafter referred to as 'the Act').
2. Dehors unnecessary details, the factual matrix of the prosecution case is as follows: 2.1 The accused approached the complainant and requested for a friendly loan of 3 lac on 20.05.2015 and executed an affidavit/undertaking and promissory note in favour of the complainant [ENTITY].
2.2 Thereafter the complainant advanced a loan of 3 lac on 20.05.2015.
2.3 In lieu of his liability, the accused had issued a PostDated cheque bearing Number 034671 dated 05.03.2016 for an amount of 3 lac in the favour of the complainant.
2.4 Thereafter the complainant presented the said cheque to his banker but to the shock and surprise of the complainant, the above said cheque was returned unpaid by the bank for the reason "funds insufficient". The cheque return memo is of 14.03.2016.
2.6 Thereafter the complainant issued a legal notice dated 22.03.2016 to the accused, through his advocate under [SECTION] of the act. The legal notice [ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 2 of 25 was duly served upon the accused. The accused had failed to make the payment of cheque amount within 15 days of receipt of the same. Thus, the present complaint case.
3. The present complaint case was registered on 26.04.2016 and the pre summoning evidence was led by the complainant on the same day. After considering the presummoning evidence by affidavit and the documents placed on record by the complainant, the court was pleased to summon the accused vide its order passed on the same day.
4. The accused entered the appearance on 02.09.2016. Notice U/[SECTION] of the [ACT] (hereinafter referred to as the Code) was framed against the accused on 07.02.2017, to which the accused pleaded not guilty and claimed trial. Plea of defence of the accused was recorded simultaneously wherein the accused admitted his signatures on the impugned cheque and admitted having received the legal notice. It was further stated by the accused that the subject cheque was given by him to one Mr. [ENTITY] and he did not give the subject cheque to the complainant. The accused further stated that he does not owe the amount as mentioned in the subject cheque. It was however admitted by the accused that he owed an amount of 2 lac. The accused further stated that he had already made a payment of 1,80,000/ to the business partner of the complainant who is known by the name of Mr. [ENTITY]. It was further stated by the accused that he had signed some documents at the instance of Mr. [ENTITY]. The accused also stated that he had paid the interest as well.
5. The accused seeks exoneration on these grounds.
[ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 3 of 25
6. Thereafter, an oral application U/[SECTION] of the Act was moved by the accused on 07.02.2017 and the same was allowed after hearing the arguments of both the sides vide order passed on the same day whereafter the matter was fixed for crossexamination of the complainant.
7. On 30.03.2017 the complainant adopted the contents of his PSE by way of affidavit which is Ex. CW1/1 as his examinationinchief and also relied upon the documents Ex. CW1/A(colly) to Ex. CW1/F. The complainant was crossexamined and discharged the same day. Thereafter CW2 was summoned as a witness after application by complainant under [SECTION] of the Code was allowed and he was examined in chief on 20.11.2017. The witness CW2 was cross examined and discharged on 09.01.2018. The CE was closed vide separate statement of the complainant on same day.
8. The statement of the accused was recorded on 23.06.2018 under [SECTION] of the Code, in which all the incriminating evidence along with all the exhibited documents were put to the accused. In his statement the accused stated in his answer to question number 1 that he had taken a loan of 2 lac from the complainant and the complainant had made him sign some papers. The accused further stated in answer to question number 2 that he had issued blank signed cheque to the complainant. In his answer to question number 4 which has been wrongly typed as 3, the accused stated that he had received the legal notice from the complainant. In his answer to question number 7 which has been wrongly typed as 6, the accused had stated that he had handed over the cheque in question to one Shri [ENTITY]. The said [ENTITY] had taken the cheque in question from [ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 4 of 25 him as security as [ENTITY] had promised to arrange the loan for the accused. Further it was stated by the accused that he had made payment of 1,80,000/ to the complainant and he had transferred the same in the bank account maintained by the complainant with the axis bank.
9. The matter was thereafter fixed for DE.
10. On 29.08.2018 the DE was recorded wherein the accused had examined himself as DW1 and was crossexamined on 23.03.2019 and he was discharged the same day. Thereafter, the DE was closed vide separate statement of the accused on the same day after his opportunity to examine DW2 was closed. The matter was, thereafter, fixed for final arguments.
11. The final arguments in full were heard at length by me from both the parties on 22.11.2019, the matter was thereafter fixed for judgment which was reserved for 25.11.2019.
12. Witnesses examined by the Complainant 12.1 The complainant examined himself as CW1 and one [ENTITY] as CW2 and no one else.
13. Documentary evidence relied upon by the Complainant 13.1. PreSummoning evidence by affidavit which is Ex. CW1/1;
[ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 5 of 25 13.2. Undertaking/Affidavit which is Ex. CW1/A;
13.3. Receipt and promissory note which is Ex. CW1/A(colly); 13.4. Original Cheque which is Ex. CW1/B;
13.5. Retuning Memo which is Ex. CW1/C;
13.6. Legal Notice which is Ex. CW1/D;
13.7. Postal Receipts which is Ex. CW1/E(colly);
14. Witnesses examined by the Accused 14.1 The accused examined himself as DW1 and no one else.
15. This in a nutshell is the factual expose.
16. Before adverting to scanning the evidence under the lens of the law pertaining to the lis at hand, let us revisit the legal benchmark to be satisfied, enunciated in [SECTION] of the Act : Dishonour of Cheque for insufficiency, etc. of funds in the account:
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the [ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 6 of 25 bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to [two] years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless
(a) the cheque has 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;
(b) the payee or the holder in due course of the cheque, as the case may be, makes 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; and
(c) the drawer of such cheque fails to make the 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 [ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 7 of 25 receipt of the said notice.
Explanation. For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
17. Thus, the essential ingredients that can be culled out from the statutory provision are:
(i) Person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii)That cheque has 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;
(iv)That cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of [ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 8 of 25 the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
18. Being cumulative, it goes without saying that it is only when all the aforementioned ingredients are satisfied, the person who had drawn the cheque can be deemed to have committed an offence under [SECTION] of the Act.
19. I would now appreciate the facts in the light of the law mentioned above:
(i) Person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
As far as the first ingredient of [SECTION] of the Act is concerned, it is nowhere disputed that the accused had drawn the cheque on the account maintained by him. So, the first ingredient stands satisfied in the light of admissions of the accused by necessary implications.
20. (ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
[ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 9 of 25 Let us now examine the evidence placed on record by both the parties in order to satisfy the second ingredient of the offence.
In order to correctly appreciate this ingredient in the light of the evidence placed on record by both the parties, it is necessary to revisit the provision under [SECTION] and [SECTION] of the Act.
[SECTION] of the Act inter alia provides: Presumptions as to negotiable instruments:
Until the contrary is proved, the following presumptions shall be made: (a) of consideration that every negotiable 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] of the Act provides: "Presumption in favour of holder It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in [SECTION] for the discharge, in whole or in part, of any debt or other liability"
[ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 10 of 25
21. It is clear from the conjoint reading of the both the provisions that ordinarily in the Cheque dishonouring cases, what the courts ought to consider is whether the ingredients of the offence enumerated in [SECTION] of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by [SECTION] of the Act.
22. [SECTION] of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While [SECTION] of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under [SECTION] is a device to prevent undue delay in the course of litigation.
23. As far as standard of proof required to rebut the presumption raised under [SECTION] and [SECTION] of the Act is concerned, it has been laid down in the number of judgments rendered by the Hon'ble Supreme Court of India that a defence of non existence of liability or the cheque being given as a security, cannot be taken at the mere ipse dixit of the accused. The accused has to prove his innocence either by adducing his own evidence or by punching holes in the case of the complainant.
24. It was held by Hon'ble Supreme Court in the case titled as [PRECEDENT] that: "26. In the light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by [SECTION] of [ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 11 of 25 the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in [ENTITY] may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it is based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttal presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.
27. [SECTION] of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While [SECTION] of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under [SECTION] is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by [SECTION] can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendantaccused cannot be expected to discharge an unduly high standard of proof.
[ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 12 of 25
28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under [SECTION], the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
25. Coming back to the facts in the present case, the complainant had reproduced the contents of his complaint in his evidence by way affidavit which he adopted as his examination in chief.
26. The complainant was crossexamined at length on behalf of the accused. In the crossexamination of the complainant, the accused sought to discredit the case of complainant on various grounds. How successful he emerged, will be seen in succeeding paragraphs.
27. In the crossexamination of the complainant, the accused sought to establish that he had given the subject cheque to one Mr. [ENTITY] and not to the complainant. The accused further sought to establish that he owed only 2 lac out of which 1,80,000/ was already repaid by the accused to Mr. [ENTITY] who is allegedly the business partner of the complainant.
[ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 13 of 25
28. Now as far as the legally enforceable liability of the accused towards the complainant is concerned, it has been inter alia argued by the Ld. Counsel for the complainant that a friendly loan of 3 lac was taken by the accused from the complainant on 20.05.2015. It was further argued that the complaint was filed within limitation. It was also argued that legal notice was received by the accused and the same fact has been admitted by him in his notice U/[SECTION] of the Code. The signatures have also been admitted on the subject cheque by the accused. It has further been argued that the accused has taken contradictory stands in his notice U/[SECTION] and [SECTION] of the Code.
29. Per contra it has been inter alia argued on behalf of the accused that necessary documents have not been mentioned by the complainant in his legal notice and neither the friendly relation are mentioned. It was further argued that the date of execution is not ascertainable from Ex. CW1/A as the same is undated. It was further argued that the factum of interest @18% per annum mentioned in the document Ex. CW1/A (colly) is not mentioned anywhere in the complaint. Moreover the dates on the receipt and the promissory note are different. It has been argued that the said document Ex. CW1/A is fabricated. It was further argued that the complainant had not examined all the witnesses as he did not examine [ENTITY] and had failed to provide the best evidence. It has also been argued that the complainant had the duty to show how much amount of money had been refunded to him and he failed to do so.
30. In the rebuttal it has been argued by the complainant that [ENTITY] was the known of accused and he did not personally know [ENTITY] which is why [ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 14 of 25 he did not get him examined.
31. I have heard the Ld. Counsels of both the parties and given my thoughtful consideration to them.
32. Now in the present case, the accused has mainly two legs of defence. One, the nature of the documents Ex. CW1/A and Ex.CW1/A (colly). Two, the factum of taking loan of 2 lac only and returning 1,80,000/ to one Mr.[ENTITY]. Now as far as the document Ex. CW1/A (colly) is concerned, the execution of the same has been admitted by the accused in his crossexamination dated 23.03.2019. It has been categorically stated by the accused that he admits his signature both on the receipt and the promissory note. In the light of said admission, the argument that the dates are different on the receipt and promissory note does not hold any water. Admission of the fact is the best evidence and once the execution of the document is admitted by the person who has executed it, the same is proved as per [SECTION] of the [ACT].
32.1 Coming over to the document Ex.CW1/A, the execution of the same has been denied by the accused. In the cross examination of the complainant no question in respect of Ex. CW1/A has been separately asked. Rather a clubbed question in respect of affidavit/undertaking which is Ex.CW1/A and receipt and promissory note which is Ex. CW1/A (colly) has been asked. That too, the question pertained to the time of preparation of the said documents. Furthermore, only one clubbed suggestion regarding the fabrication of aforementioned documents has been given which has been denied by the complainant. Further the accused also failed to bring out anything concrete from the evidence of CW2 regarding the fabrication of document Ex. CW1/A. All that was asked by the accused from CW2 was regarding [ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 15 of 25 the receipt and promissory note and nothing about affidavit. Moreover it appears that Ld. Counsel for the accused has wrongly addressed the document Ex. CW1/A (colly) as Ex. CW1/A. No clarification on this point was offered by the accused at any stage of the present complaint case. In the final arguments it was argued by the Ld. Counsel for the accused that the document Ex. CW1/A is fabricated as the name column is blank and rest of the document is typed. Be that as it may, the only purpose to furnish the aforementioned documents is to prove the factum of taking loan from the complainant. Even if the complainant failed to prove the document Ex. CW1/A, the document Ex. CW1/A(colly) stands proved by admission. Thus the factum of taking loan of 3 lac @18 % per annum interest stands proved as per [SECTION] of the [ACT] read with [SECTION] of the Act which reads thus -
20. Inchoate Stamped Instruments Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in 20[India] and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount:
Provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.
[ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 16 of 25 Clearly in the present case document Ex.CW1/A (colly) was admittedly signed by the accused himself and as far as amount in the said document is concerned the complainant was authorised to fill the amount and consequently the accused is liable upon the document Ex. CW1/A(colly) for the amount mentioned therein.
33. Now it has been proved in the preceding paragraph that the loan amount was 3 lac and not 2 lac as averred by the accused, let us examine the second leg of defence regarding the return of the loan amount by the accused. In order to show that the accused had returned the loan amount, the accused has not put any specific question to the complainant. All that the accused has contented himself by doing is asking the complainant about the bank account maintained with Axis Bank, Bhikaji Kama Place, New Delhi. The complainant has categorically denied having account in the said bank. Further only a suggestion has been put to the complainant that part payment was made by the accused in the said bank account. Curiously enough, while putting the above suggestion, the accused did not mention the specific amount purportedly deposited by him in the said Axis bank account. Further no question regarding the return of loan amount was put to CW2 on behalf of the accused.
33.1 Now as far as the defence of returning the loan amount is concerned, the accused has taken contradictory stands. In his notice dated 07.02.2017, the accused has inter alia stated that he had returned 1,80,000/ to one Mr. [ENTITY]. The accused also stated that he had paid the interest also. How much of the interest amount was paid by the accused was not disclosed by him. Further, in the cross examination of the complainant as CW1 dated 30.03.2017, it was suggested by the accused that the part payment of the loan amount was deposited in the bank account of the [ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 17 of 25 complainant maintained with Axis Bank, Bhikaji Kama Place, New Delhi. Further at the stage of [SECTION] of the Code it was stated by the accused in the response to Question number 6 that he had made payment of 1,80,000/ to the complainant by transferring the same in the bank account maintained by the complainant with Axis Bank. Further at the stage of defence evidence, it was deposed by the accused in his chief dated 29.08.2018 that he had repaid 1,80,000/ in cash to one Mr. [ENTITY]. It was further deposed by the accused that he had transferred 30,000/ in the bank account of the complainant. Further it was deposed by the accused in his cross examination dated 23.03.2019 that he had taken loan from one Mr. [ENTITY] and has already repaid the entire loan amount to him. It was also deposed by the accused that he does not have any written proof to show that he had repaid the sum of 1,80,000/ to the said [ENTITY].
33.2 All the above stands taken by the accused are in sharp contradiction and his entire defence is self destructive. The accused sometimes stated that the part payment of loan was given by cash and sometimes he says the same was deposited in the bank account of the complainant. The accused had also stated that he did not know complainant and the account details were told to him on phone by the complainant himself. Following questions do emerge from the conduct of the accused. If the accused did not know the complainant then how did he execute document Ex. CW1/A (colly) with the complainant? Further if any money was deposited in any bank account, why the accused did not produce any receipt of the same? Further if the complainant maintained his bank account with the Axis Bank, why did the accused did not get the bank official concerned summoned from the bank? All these are material and natural questions which have been left answered and unexplained by the accused. The answers to these questions were crucial for the [ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 18 of 25 accused to show the preponderance of probabilities in his favour. Unfortunately, the accused has not cared enough to address any of these questions.
33.3 As far as the role of Mr. [ENTITY] is concerned, it is true that the accused had mentioned him in the list of witnesses and sought to get him examined by getting him summoned. It was deposed by the accused in his cross examination that he had made efforts to summon [ENTITY] as a defence witness but he was not able to trace his fresh address. The said submission by the accused is belied by the record of the case itself. The accused sought to summon [ENTITY] as his witness and the said witness was summoned vide order dated 25.06.2018. The summons were given dasti to the accused. Thereafter on next date of hearing the accused failed to bring his witness. The ground taken by the accused was that dasti summons were not issued against the accused by the court staff despite orders and filing of PF. On that day, fresh summons against the witness of the accused were ordered and dasti copy of the same was again ordered to be given to the accused. The receiving of said dasti copy was taken from the accused on the ordersheet dated 20.08.2018. Thereafter on next date of hearing the adjournment was requested by the complainant, however the witness of the accused was absent.
Vide order dated 29.10.2018 the accused was directed to produce his witness and he was warned that in case of failure to bring his witness his defence evidence shall be closed. Thereafter on 16.02.2019 when the accused again failed to bring his witness, the DE was closed. The only conclusion that can be drawn from the record of the case is that the accused took no steps to produce his witness on whom the entire defence of the accused was premised. Any prudent litigant would have requested the court to resort to coercive action against the witness if the same fails to appear, more so when such witness is most crucial to the case of the litigant. The accused [ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 19 of 25 has given a shortshrift to the said witness and simply deposed that he did not have the fresh address of the witness. Whereas the accused never submitted in the court that his witness is not traceable or that he has changed his residential address. In view of the above discussion and the record of the case coupled with the conduct of the accused qua the witness [ENTITY], the only conclusion that can be drawn is that the production of said witness was deliberately avoided by the accused for the reasons best known to him.
34. Further the accused had stated in his notice U/[SECTION] of the Code that he had given the subject cheque to one Mr. [ENTITY]. He further stated that he owed 2 lac. However in his statement U/[SECTION] of the Code the accused stated in his answer to question number 1 that he had taken loan of 2 lac from the complainant. And in an answer to question number 2, the accused stated that he had given the blank signed subject to the complainant. Further in his chief evidence the accused stated that he had taken loan of 2 lac from the complainant through one [ENTITY] and the subject cheque was also given to one Mr. [ENTITY]. Thus it can be seen that the accused has taken contradictory stands at different stages of the same trial. In such a scenario the reliance cannot be placed upon the defence set up by the accused. The defence of the accused therefore falls on its own knees by his contradictory stands.
35. It is also worthwhile to take note of the fact that even after being cognisant of the alleged misuse of the cheque in question by the complainant, the accused never initiated any action against him like filing of police complaint or lodging a complaint with the bank in regard thereto. Thus, the only hypothesis that the conduct of the accused points at is his guilt as he has not brought even an iota of [ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 20 of 25 evidence on record which could lend credence to his line of defence.
36. It cannot be gainsaid that all that the complainant needs to do in cheque dishonour cases is to show that a cheque was issued by the accused which got dishonoured, the legal demand notice was served upon the accused and even 15 days after the receipt of the same the accused failed to make payment. Having shown that, it becomes incumbent upon the accused to bring out something which renders the case of the complainant improbable, by showing preponderance of probabilities.
37. At this juncture the reliance can also be profitably placed on the judgment rendered by the Hon'ble Supreme Court in [PRECEDENT] wherein it was held that: "20. The accused in a trial under [SECTION] of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the [ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 21 of 25 passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring 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 nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in [SECTION] of the [ACT] to rebut the presumptions arising under [SECTION] and [SECTION].
21. The accused has also an option to prove the nonexistence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, therefore, the presumptions under Sections [ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 22 of 25 118 and [SECTION] of the Act will not again come to the complainant's rescue."
38. The aforesaid principle was reiterated by the Hon'ble Supreme Court most recently in [PRECEDENT], wherein it was held that:
20. On the aspects relating to preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the Court to conclude either that the consideration did not exist or that its nonexistence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. This Court has, time and again, emphasized that though there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfil the requirements of rebuttal as envisaged under [SECTION] and [SECTION] of the [ACT].
39. In the light of above discussion of fact and law it can be safely concluded that the accused has miserably failed to rebut the statutory presumption that lies in the favour of complainant. The accused has failed to create any preponderance of probabilities let alone presenting a cogent, veracious and an impeccable piece of evidence before this court. Consequently, I conclude that there was an existing legally enforceable liability upon the accused towards the complainant not only on the date of issuance of the cheque in question but also on the date when the cheque in question was returned unpaid by the bank.
[ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 23 of 25
40. (iii)That cheque has 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;
(iv)That cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
41. As far as these three ingredients are concerned, they stand proved by the documentary evidences placed on record. Point numbers (iii) and (iv) stand proved by the document Ex. CW1/B and Ex. CW1/C and point number (v) stands proved by documents Ex. CW1/D. None of these documents have been disputed by the accused in her defence and hence these stand proved as being admitted by the accused.
42. (vi) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within [ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 24 of 25 15 days of the receipt of the said notice.
43. As far as this ingredient is concerned, it has been admitted by the accused herself in his defence in the notice under [SECTION] of the Code and his defence statement under [SECTION] of the Code that he had received the legal notice from the complainant. In view of her admission, the said fact stands proved as per [SECTION] [ACT].
44. Simply put, the accused has failed to put forth any defence at all and there is nothing on record that would cast a dent on the case of the complainant.
45. Consequently, this court finds the accused [ENTITY] S/o Sh. [ENTITY] guilty of the offence under [SECTION], [ACT] and convicts him accordingly. I direct him to appear before the court on 02.12.2019 at 2 PM for hearing on sentence.
47. This judgment contains 25 pages. Every page of this judgment has been signed by me.
48. Copy of this judgment be given free of cost to the accused forthwith.
49. Let a copy of this judgment be posted on the official website of District Court, Dwarka. PRANAT KUMAR Date:
JOSHI 2019.11.25 16:49:44 -0100 ANNOUNCED IN THE OPEN COURT ([ENTITY]) th
TODAY i.e. 25 NOVEMBER 2019 METROPOLITAN MAGISTRATE DWARKA DISTRICT COURTS/NEW DELHI [ENTITY] Vs.[ENTITY] CC No.4992698/2016 Page no. 25 of 25