IN THE COURT OF MS. SNIGDHA SARVARIA : MM-01 (SHAHDARA) : KARKARDOOMA COURTS : DELHI. CC No. 361/MDW)17 [CASE NUMBER] DATE OF INSTITUTION : 17.05.2010 DATE RESERVED FOR JUDGMENT: 17.09.2019 DATE OF JUDGMENT : 17.09.2019 IN THE MATTER OF: Sh. [ENTITY] S/o Sh. [ENTITY] R/o 72/A, Pandit Chowk, Mandawali, Fazal Pur, Delhi. Complainant VERSUS Mr. [ENTITY] S/o Sh. [ENTITY], Office At: (Force Motors Ltd.) Shree Balajee Automobiles, (Authorized dealer of Balwan Tractors), Plot no. 335, Meerut Road, Opp. Jain Tube Company, Ghaziabad, U.P. Also At: R/o Village & Post Vedpura, Tehsil Dadri, District Gautam Budh Nagar, U.P. Accused JUDGMENT:
a) Srl. No. of the case & Date of institution : 1693/16 & 17.05.2010
b) Date of commission of offence : after the 15th day of service of legal demand notice
c) Name of the complainant : Sh. [ENTITY]
d) Name of the accused : Sh. [ENTITY]
e) Nature of offence complained of : [SECTION] [ACT]
f) Plea of the accused person : Accused pleaded not guilty
h) Final Order : Convicted
i) Date of order : 17.09.2019 COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881 BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE: Brief facts
1. The brief facts of the present complaint filed U/[SECTION] of the [ACT] (hereinafter referred to as "[ACT]") are that accused is closely acquainted with the complainant and approached for personal & friendly loan of Rs. 2,10,000/ for meeting of his some urgent requirements and complainant believing the words and representation of accused had given Rs. 2,10,000/ to the accused. It is alleged that accused had issued a cheque bearing no. 764082 dt. 20.10.2009 of Rs. 2,10,000/ drawn on ICICI Bank Ltd., Ghaziabad Branch, R1/88, Raj Nagar, Ghaziabad, U.P., to the complainant with assurance that said cheque is good for payment and would be honoured on presentation. Thereafter, complainant had presented the above said cheque with its banker for encashment but same was returned unpaid vide return memo dt. 20.03.2010 with remarks "Funds Insufficient". Thereafter complainant had sent a legal notice of demand dt. 08.04.2010 by registered A.D and [ACT] but despite that accused has not discharged his liability against the cheque in question. Therefore, the accused has committed an offence, which is an offence under the provision of [SECTION] of [ACT] as well as amount to cheating also.
Proceedings Before Court
2. In the present complaint summons were issued against the accused. The accused entered appearance and notice of accusation was framed against the accused on 30.11.2011 to which accused pleaded not guilty and claimed trial. The accused also stated in his defence that he was running business in the name and style of Shri Balaji Automobile dealing with tractors. He stated that the grandfather of the complainant Mr. [ENTITY] went to the office of the accused asked the accused to get the tractor of Mr. [ENTITY] sold. At that time accused gave cheque in question as security to Mr [ENTITY] on the ground that whenever any purchaser would pay for the tractor to Mr. [ENTITY] then the cheque in question would be returned to the accused. Brother-in-law of maternal uncle of the complainant was the mediator in the dealing. Accused stated that he had paid Rs. 4,60,000/- in cash to Mr. [ENTITY] and had asked him to return the cheque in question. But Mr. [ENTITY] had sought sometime for returning the cheque in question. He stated that when he received the legal demand notice in the present case then he had approached the mediator for return of the cheque in question but all that was in vain. He stated that he has no pecuniary liability towards the complainant.
3. In support of his case, the complainant examined himself as CW-1 and tender his evidence by way of affidavit as Ex. CW1/A. He proved the Cheque bearing no. 764082 dt. 20.10.2009 of Rs. 2,10,000/- drawn on ICICI Bank Ltd. Gaziabad, U.P. issued in favour of [ENTITY] as Ex. CW1/1, returning memo dt. 20.03.2010 as Ex CW1/2, legal notice as Ex. CW1/3, Regd. AD Receipt as Ex. CW1/4 & Ex. CW1/5 and [ACT] receipt as Ex. CW1/6. Thereafter, vide order dt. 27.09.2012, Complainant Evidence was closed.
4. Statement of accused under [SECTION] [ACT] was recorded on 03.11.2012 wherein he stated that he is running a firm namely Shri Balaji Automobile dealing in sale of tractor. Grandfather (nana) Sh. [ENTITY] of the complainant came to his office and asked him time get his (complainant) tranctor sold. At that time, he gave the above mentioned cheque to Sh. [ENTITY], maternal grandfather of complainant as security on the ground that whenever the purchase would make the payment to Sh. [ENTITY], the he would return the cheques to accused. Brotherin-law of maternal uncle of the complainant was mediator in the dealing. Accused further stated that he has made the payment of Rs. 4,60,000/- to Sh. [ENTITY] in cash and asked Sh. [ENTITY] to get his cheques returned upon which Sh. [ENTITY] sought some time for the same. It is further stated that when accused received legal notice of complainant intimating him about the dishonour of the cheque, he again contacted the mediator for return of his cheques, but in vain. Accused further stated that he has financed the loan to Sh. [ENTITY] and his wife Smt. [ENTITY] for purchase the tractor from Oriental Bank of Commerce, Kucheysar, Distt. Bulandshehar, UP and complainant is a guarantor to the aforesaid loan and the said loan is in continuation. Accused further stated that he had no pecuniary liability towards the complainant.
5. The accused deposed as DW1 in his defence as relied upon the document written by Mr. [ENTITY] as Ex. DW1/A and he was also cross-examined at length. Accused has also examined several other witnesses in his defence i.e. Sh. [ENTITY] as DW-2, Sh. [ENTITY] as DW-3, Sh. [ENTITY], Agricultural Officer, Oriental bank of Commerce as DW-4 who filed the documents regarding loan account of Sh. [ENTITY] qua purchase of tractor as Ex. DW4/A, Sh. [ENTITY] as DW-5, Smt. [ENTITY] as DW-6, Sh. [ENTITY] as DW-7. All the defence witnesses were cross-examined by the counsel for the complainant. Accused closed defence evidence on 29.06.2019.
6. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
Findings
7. The following are the components of the offence punishable under [SECTION] of [ACT]
(1) drawing of the cheque by a person on an account maintained by him with a banker, for payment to another person from out of that account for discharge in whole/part any debt or liability, (2) presentation of the cheque by the payee or the holder in due course to the bank, (3) returning the cheque unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque, (4) giving notice in writing to the drawer of the cheque within 30 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount, (5) failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice.
8. As regards the defence raised by the accused that he did not fill the details in the cheque himself and had handed over signed cheque after filling amount in words and figure to the complainant and remaining particulars were not filled by the accused thus this case is not maintainable, at this juncture it would be worthwhile to discuss the provisions under [SECTION] and [SECTION] of the [ACT], which is as under:
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 [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 then case may be, upon it a negotiable instrument, 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.
118. Presumptions as to negotiable instruments of consideration Until the contrary is proved, the following presumptions shall be made:
(a) of considerationthat 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;
(b) as to date that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance that every accepted bill of exchange was accepted within a reasonable time after its date its date and before its maturity;
(d) as to time of transfer. that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of endorsements that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stampsthat a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course that the holder of a negotiable instrument is a holder in due course; provided that, where the instrument has been contained from its lawful owner, or form any person in lawful custody thereof, by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
9. Further, in [PRECEDENT], the Hon'ble Delhi High Court had observed as under :-
7. Even otherwise, prima facie, it was the petitioners who had handed over the undated cheque for a certain amount to the respondent in terms of a contract between the parties. Since an undated cheque cannot be encashed, it can only mean that the petitioners had authorized the complainant to enter an appropriate date on it. In [PRECEDENT] it was held that when a blank cheque is signed and handed over, it means the person signing it has given an implied authority to any subsequent holder to fill it up. Similarly, in [PRECEDENT] it was held that whoever signs a cheque or accepts a bill in blank, and then puts it into circulation, must necessarily intend that either the person to whom he gives it, or some future holder, shall fill up the blank which he has left. This common law doctrine was also affirmed by Justice [ENTITY] in [PRECEDENT] where it was held that the drawer of an undated cheque gives a prima facie authority to fill in the date. This aspect has also been incorporated in [SECTION] of the [ACT], which deals with Inchoate Stamped Instruments. The Supreme Court in [PRECEDENT] while discussing the scope of [SECTION] held that by reason of this provision, a right has been created in the holder of the cheque. Prima facie, the holder thereof is authorized to complete the incomplete negotiable instrument. In that view of the matter, all further issues that may be raised by the petitioners regarding the nature and scope of the authority of the respondent to put any particular date on the cheque in question, are all matters for trial.
8. It is not as if the cheque came to be issued without any consideration whatsoever in the first place or that there was such a glaring defect in the complaint that the decision of the Trial Court to issue summons has ex facie resulted in miscarriage of justice or an abuse of the process of Court, and therefore interference under [SECTION] [ACT] to quash the proceedings is warranted in the interest of justice. The question whether the consideration for which the cheque was issued was ultimately satisfied or whether the cheque was wrongly sought to be encashed, are all issues that must also be decided at the trial. The Supreme Court in the case of [PRECEDENT] held as follows:
"13 the wellsettled law that the power of quashing criminal proceedings should be exercised very stringently and with circumspection. It is settled law that at this stage the Court is not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. At this stage the Court could not have gone into merits and/or come to a conclusion that there was no existing debt or liability."
The Court further held that:
"17. There is therefore no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they have to discharge in the trial. At this stage, merely on the basis of averments in the petitions filed by them the High Court could not have concluded that there was no existing debt or liability."
10. From the aforesaid discussion, it is manifest that by reason of the provision under [SECTION] [ACT], a right has been created in the holder of the cheque. Prima facie, the holder thereof is authorized to complete the incomplete negotiable instrument. Mere averment to the effect that the accused/drawer of the cheque did not fill in the details on the cheque except for signing on the cheque is not sufficient. Thus, merely that allegation of issuance of incomplete negotiable instrument does not create absolute defence in favour of the accused unless corroborative evidence exists to show that by threat or fraud, a cheque was taken. There is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. Respondent has not denied his signatures on the cheques. Once he has admitted his signatures on the cheques he cannot escape his liability on the ground that the same has not been filled in by him. When a blank cheque is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blank which he has left. A person issuing a blank cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank cheque had been issued by him. Thus, this defence is of no assistance to the accused. (.(See also:[PRECEDENT] decided on 16.11.2016 by Hon'ble High Court of Delhi in [CASE NUMBER]; [PRECEDENT] & [PRECEDENT]).
11. The accused stated in his defence recorded on 30.11.2011 and statement under [SECTION] [ACT] that he received the legal demand notice from the complainant and the accused also admitted his signatures on the cheque in question. Since issuance of cheque in question by the accused is not disputed, hence, presumption U/[SECTION] of the [ACT] is raised.
12. In [ENTITY] v. Sri Mohan AIR 2010 SC 1898 it was observed by the Hon'ble Supreme Court as under :
"14. In light of these extracts, we are in agreement with the respondentclaimant that the presumption mandated by [SECTION] of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in [PRECEDENT] (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable 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. [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 accused/defendant cannot be expected to discharge an unduly high standard or proof. 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 and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. " (emphasis added)
13. In view of the decision in [ENTITY] laid down by the Supreme Court, the presumption raised under [SECTION] of the [ACT] is of legally enforceable debt or liability and it is for the accused persons to raise a probable defence to rebut the presumption.
14. [SECTION] [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] [ACT] is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by [SECTION] [ACT] can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong those 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 defendant accused cannot be expected to discharge an unduly high standard of proof.
15. The 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] [ACT], 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. 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.
16. As discussed herein above, under [SECTION] [ACT] strong rebuttable presumptions in favour of the complainant arise but same can be rebutted by the accused by way of credible defence.
17. As regards the defence of the accused that the cheque in question was a security cheque and thus complaint under [SECTION] [ACT] is not maintainable is without any merits in view of the decision of the Hon'ble Apex Court in [PRECEDENT] and [PRECEDENT]. Of Hon'ble High Court of Delhi decided on 29/06/2015 in [CASE NUMBER] and [PRECEDENT] decided on 14/05/2015 and [PRECEDENT]. Of Hon'ble High Court of Delhi the security cheques fall within the purview of [SECTION] [ACT] .
18. As per decision in [PRECEDENT]. Of Hon'ble High Court of Delhi decided on 29/06/2015 in [CASE NUMBER] it has been held that the scope of [SECTION] would cover cases where ascertained and crystallized debt or other liability exists on the date when the cheque is presented and not only to the cases where ascertained and crystallized debt or other liability exists on the date on which it was delivered to the seller as a post dated cheque or as a current cheque with a credit period.
19. The defence raised by the accused is that that he is running a firm namely Shri Balaji Automobile dealing in sale of tractor. Grandfather (nana) Sh. [ENTITY] of the complainant came to his office and asked him time to get his (complainant) tractor sold. At that time, he gave the above mentioned cheque to Sh. [ENTITY], maternal grandfather of complainant, as security on the ground that whenever the purchaser would make the payment to Sh. [ENTITY], then he would return the cheques to accused. Brother-in-law of maternal uncle of the complainant was mediator in the dealing. Accused further stated that he has made the payment of Rs. 4,60,000/- to Sh. [ENTITY] in cash and asked Sh. [ENTITY] to get his cheques returned upon which Sh. [ENTITY] sought some time for the same. It is further stated that when accused received legal notice of complainant intimating him about the dishonour of the cheque, he again contacted the mediator for return of his cheques, but in vain. Accused further stated that he has financed the loan to Sh. [ENTITY] and his wife Smt. [ENTITY] for purchase the tractor from Oriental Bank of Commerce, Kucheysar, Distt. Bulandshehar, UP and complainant is a guarantor to the aforesaid loan and the said loan is in continuation. Accused further stated that he had no pecuniary liability towards the complainant.
20. The Hon'ble Supreme Court in [PRECEDENT] held, that bare denial of the 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 non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist.
21. In the facts of the present case, the accused had to adduce evidence of his own as he has alleged that he has no liability towards the complainant and as per [SECTION] of [ACT] burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. [SECTION] of [ACT] provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of [SECTION] of [ACT] amplifies the general rule of [SECTION] of [ACT] that the burden of proof lies on the person who asserts the affirmative of the facts in issue.
22. The defence raised by the accused is that Grandfather (nana) Sh. [ENTITY] of the complainant came to his office and asked him to get his (complainant) tractor sold. At that time, he gave the above mentioned cheque to Sh. [ENTITY], maternal grandfather of complainant as security on the ground that whenever the purchaser would make the payment to Sh. [ENTITY], then he would return the cheques to accused. Brother-in-law of maternal uncle of the complainant was mediator in the dealing. Accused further stated that he has made the payment of Rs. 4,60,000/- to Sh. [ENTITY] in cash and asked Sh. [ENTITY] to get his cheques returned upon which Sh. [ENTITY] sought some time for the same. It is further stated that when accused received legal notice of complainant intimating him about the dishonour of the cheque, he again contacted the mediator for return of his cheques, but in vain. Accused further stated that he has financed the loan to Sh. [ENTITY] and his wife Smt. [ENTITY] for purchase the tractor from Oriental Bank of Commerce, Kucheysar, Distt. Bulandshehar, UP and complainant is a guarantor to the aforesaid loan and the said loan is in continuation. Accused further stated that he had no pecuniary liability towards the complainant. In order to prove this defence the accused has not brought forth his bank account statement and other documents to show his financial status that he did not require any loan from the complainant in 2009. Thus, this contention of the accused is without any merits.
23. The said contention of the accused is also without any merits as there is no document on record to show that the cheque in question was handed over by the accused to Mr. [ENTITY]/[ENTITY] as security. Also, merely because documents Ex DW4/A does not mentions that cheque in question bearing no. 764082 was handed over to Mr. [ENTITY]/[ENTITY] with respect to sale of the tractor.
24. Furthermore, merely because receipt Ex DW1/A executed by [ENTITY] states that the cheque in question was handed over to [ENTITY] does not prove the defence of the accused since [ENTITY] himself deposed as DW5 that the cheque in question was not handed over to him. Furthermore, it has not been explained by accused as to why written document Ex DW1/A was executed by [ENTITY] and why payment was made to [ENTITY] and not to [ENTITY] when admittedly tractor was owned by [ENTITY] and [ENTITY].
25. Also, the said sumbissions are devoid of any merits as to show that the cheque in question was not handed over in the year 2009-2010 by the accused to the complainant, accused has not brought on record certificate from the bank of the accused to show when the cheque booklet containing cheque in question was issued to the accused and when the contemporary cheques were exhausted/issued by the accused. Bank statement Mark D has not been proved on record by the accused.
26. Also, like any ordinary prudent man the accused has not made any complaint to the police against Mr. [ENTITY] for withholding cheque in question of the accused and not returning the cheque despite nana of complainant had received money in cash from the accused, thus, adverse inference is raised against the version of the accused in this regard. Furthermore, like any ordinary prudent man the accused did not give stop payment instructions to his banker qua the cheque in question when same was not returned to him, thus, adverse inference is raised against the version of the accused in this regard. Also, the contention of the accused that he had issued stop payment instructions to his banker qua the cheque in question has also not been proved by summoning record from the concerned bank and thus, said submissions of the accused are also without any merits.
27. The defence of the accused that the complainant has not proved on record that he gave Rs.2,10,000/- to the accused out of the money received by her mother from LIC policy upon death of his father and rental income etc is without any merits as only after the accused has rebutted the presumption under [SECTION] [ACT] the burden shifts on the complainant to prove the source of money out of which loan was granted to the accused.
28. In this regard in [PRECEDENT] decided by hon'ble Apex Court in [CASE NUMBER] decided on 15.03.2019, it has been held as under:
In the case at hand, even after purportedly drawing the presumption under [SECTION] of the [ACT], the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the accused- appellant. The aspect relevant for consideration had been as to whether the accused-appellant has brought on record such facts/material/circumstances which could be of a reasonably probable defence.
29. The contention of the accused that as per [SECTION]/[SECTION] [ACT] any loan granted in cash above Rs.20,000/- attracts penalty and thus the present complaint is not maintainable is without any merits as violation of [SECTION]/[SECTION] [ACT] entails penal consequences provided under the [ACT] and present complaint is not barred under [SECTION]/[SECTION] [ACT].
30. The accused has relied upon [SECTION] of the [ACT] to state that the present complaint is barred as the complainant has no licence to lend money. The said defence is also not maintainable as only a suit for recovery and application for execution of decree are barred under [SECTION] of the [ACT] if the lender does not has a licence for lending. The said provision under [SECTION] of the [ACT] does not bar the complaint under [SECTION] [ACT].
31. As per DW4 the tractor is still in the name of Mr. [ENTITY] and and Mrs. [ENTITY]. As per DW5 [ENTITY] he is still in possession of the tractor in question. In view of the said testimonies the receipt Ex DW1/A is contrary as if the tractor was sold to the accused then how come it is still in possession of [ENTITY] and then why the loan of the tractor was not transferred in the name of the accused as per law. Thus, testimonies of these witnesses also falsifies the case of the accused.
32. In the light of testimony of DW5 [ENTITY] the testimony of Dw3 [ENTITY] and DW1 qua document Ex DW1/A is of no use to the accused as it has not been proved by the accused by proving on record his bank statement or other documents as to from which source he made payment to Mr. [ENTITY]/[ENTITY] with respect to the tractor as stated by the accused in his defence. Mark D bank statement has not been proved as per the [ACT] by the accused and thus said document is of no assistance to the accused.
33. From the foregoing discussions, the accused has not led any such cogent evidence to rebut presumptions under [SECTION] [ACT]. In view of the aforesaid discussions, the court finds that the accused has not been unable to prove any probable defence and has failed to rebut the presumption raised U/[SECTION] of the [ACT].
34. Since the accused has failed to rebut the presumption raised U/[SECTION] of the [ACT], there is no need to go into complainant's evidence for proving the complainant's case. There is nothing coming out in the cross examination of complainant's witness which would probablise the defence raised by the accused or falsify the case of the complainant. Therefore, the complainant has been able to prove his case beyond reasonable doubt.
35. The complainant has been able to prove that the cheque in question i.e. cheque bearing no. 764082 dt. 20.10.2009 of Rs. 2,10,000/- drawn on ICICI Bank Ltd. Gaziabad, U.P. issued in favour of [ENTITY] as Ex. CW1/1 was issued in discharge of legally recoverable liability owed to the complainant by the accused.
36. Therefore, the accused [ENTITY] is convicted for the offence punishable U/[SECTION] of the [ACT] in respect of cheque Ex CW1/1. Digitally signed by [ENTITY] (Announced in open SARVARIA Date:
2019.09.17 17:47:15 Court on 17.09.2019) +0530 ([ENTITY]) MM-01/Shahdara/KKD.
17.09.2019 Judge Code: 0530