Delhi District Court
Vipin Kr. Tyagi vs Anil Kumar on 23 December, 2024
THE COURT OF SH. UDBHAV KUMAR JAIN,
JUDICIAL MAGISTRATE FIRST CLASS-04,
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
VIPIN KUMAR TYAGI VS ANIL KUMAR
CT Case No. 137/2022
1. CIS number : DLSH020043522015
2. Name of the complainant : Sh. Vipin Kumar Tyagi
S/o Sh. Munni Tyagi
R/o C-154, Amar Colony,
East Gokalpuri, Delhi-110094
3. Name of the accused, : Sh. Anil Kumar
parentage & residential S/o Sh. Shandar Pal
address R/o H.No.56, Jhagola No.1,
Delhi-110036
Also at:
DDA Flats, Sirsapur,
Vikas Sadan, INA, Delhi-110023
Also at:
C-1-21, Lawrence Road,
Keshavpuram, Delhi-110035
4. Offence complained of or proved : Section 138 of Negotiable
Instruments Act, 1881
5. Plea of the accused : Pleaded not guilty and claimed trial
6. Final Judgment : Convicted
7. Date of judgment : 23.12.2024
Date of Institution : 31.08.2015
Date of Reserving Judgment : 30.08.2024
Date of Pronouncement of Judgment : 23.12.2024
Duration : 9 years 3
months 23
days
Digitally
signed by
Udbhav Udbhav
Kumar Jain
Kumar Date:
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JUDGMENT
1. By way of the present judgment, this court shall dispose of the present
complaint filed by Vipin Kumar Tyagi (hereinafter referred to as
‘complainant’) against Anil Kumar (hereinafter referred as ‘accused’) u/s
138 of Negotiable Instruments Act, 1881 (hereinafter referred to as ‘NI Act‘
in short).
Brief facts:
2. The complainant’s story in nutshell is that the accused is well known to the
complainant and had good relationship with the complainant. In the month
of September 2014 when the accused was in dire need of money, the accused
approached the complainant for a loan of ₹2,20,000/- (Rupees Two Lakhs
Twenty Thousand). The complainant gave a loan of ₹2,20,000/- (Rupees
Two Lakhs Twenty Thousand) to the accused on 09.09.2014 in the presence
of witness and in this regard, a payment receipt was executed between the
accused and the complainant on the same day and in discharge of said
friendly loan, the accused had issued a cheque to the complainant vide
cheque bearing no.492818 dated 08.05.2015 amounting to ₹2,20,000/-
(Rupees Two Lakhs Twenty Thousand) drawn on Central Bank of India,
Vikas Sadan, DDA Complex, INA Delhi-110023. The accused assured the
complainant that the said cheque would be honoured on its presentation but
when the complainant deposited the said cheque with his banker, HDFC
Bank, B-26, East Jyoti Nagar, Main Loni Road, Shahdara, Delhi for its
encashment, the said cheque was returned unpaid and got dishonoured with
the remarks “Insufficient Funds” vide returning memo dated 19.05.2015. As
per his assurance, the complainant again deposited the said cheque with his
Digitally
signed by
Udbhav Udbhav
Kumar Jain
CT Case No.137/2022 Vipin Kumar Tyagi vs Anil Kumar Kumar
Jain
Date:
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banker for its encashment, but it was returned unpaid and got dishonoured
vide returning memo dated 16.07.2015 with the remarks “Insufficient
Funds’. Since accused did not return the amount, complainant was
constrained to send legal notice dated 31.07.2015 to the accused. Despite
receiving the legal notice, accused did not pay the cheque amount to the
complainant. Consequently, the present complaint has been filed by the
complainant.
Proceedings before the Court:
3. The cognizance of the complaint was taken, and accused was summoned
vide order dated 19.10.2015. The notice of substance of accusation u/s 251
of the Code of Criminal Procedure, 1973 (hereinafter “CrPC“) was given to
the accused on 20.12.2016 to which accused pleaded not guilty and claimed
trial. Accused was allowed to cross-examine the complainant vide order
dated 24.10.2017. Complainant and one more witness Sh. Kapil Sharma
were examined, cross-examined, and discharged and complainant evidence
(CE) was closed vide order dated 21.10.2021. Thereafter, statement of
accused u/s 313 CrPC was recorded on 04.11.2022 to which accused chose
to lead defence evidence (DE). In DE, accused himself and one forensic
expert Sh. Rajesh Verma as witnesses and DE was closed vide order dated
19.07.2024. Thereafter, the matter was listed for final arguments and same
were heard from both sides. Both sides also filed written submissions.
Arguments Raised by the Parties:
4. Ld. Counsel for complainant has argued that all the requirements of Section
138 NI Act have been fulfilled by the complainant in the present case.
Complainant gave the loan amount to the accused. The liability of accused
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is totally established. Legal notice was served upon the accused despite that
he did not pay the cheque amount. Accused has also admitted his signature
on the cheque in question. Accused took friendly loan from complainant
which has been duly proved by complainant by virtue of receipt Ex. CW1/6
and since accused has not denied issuance of cheque and has admitted his
signature on the cheque in question, hence, presumption of existence of
legal liability is in favour of complainant which the accused failed to rebut.
Nothing fatal to the case of complainant came forth in the cross-examination
of CW-1 and through his evidence, supporting documents and testimony of
CW-2, case of complainant is duly proved. The onus was upon the accused
to rebut the presumption raised against him however, accused could not
rebut the presumption even though he examined himself as a witness in DE.
Accused also brought a forged document Ex. DX/X on record which has
not been proved in accordance with law. Even the handwriting expert DW-
2 has not able to prove the said document and his report as well as testimony
is completely unreliable. Ld. Counsel relied upon various judgments in this
regard. Accused could not prove his defence and there is no cogent evidence
in support of his defence. Liability of accused is totally established.
Therefore, the presumption stands unrebutted, and complainant has proved
his case beyond reasonable doubt. Accused is liable to be convicted.
5. Per contra, Ld. Counsel for accused submitted that there are various
contradictions and discrepancies in the case of complainant. As per cross-
examination of complainant, he had no funds of his own to advance the
alleged loan amount. Complainant had no financial capacity to advance the
loan as alleged. Rather the accused took a loan of Rs. 60,000/- only which
Digitally
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Udbhav Udbhav
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he had already returned. Complainant admitted that he received the
complete payment by virtue of document Ex. DX/X and by the testimony
and report of DW-2, the forensic expert, it is duly proved that the document
Ex. DX/X bears the handwriting of the complainant. Thus, this is totally a
false case against the accused. There is no liability of accused. Complainant
has failed to prove his case beyond reasonable doubt. The whole transaction
is questionable. Clearly on the basis of contradictions and discrepancies in
the case of the complainant and defence led by the accused, accused has
been able to rebut the presumption raised against him.
Reasons for Decision:
6. For deciding the present case, it is essential to lay down the ingredients of
the offence under Section 138 NI Act which are as follows:
(a) A person must have drawn a cheque on an account maintained by him
in a bank.
(b) The cheque must be drawn for payment of certain amount of money to
another person to discharge in whole or in part, any legally enforceable
debt or other liability.
(c) The cheque has been presented to the bank and is returned unpaid by
the bank either due to insufficiency of funds or it exceeds the amount
arranged to be paid from that account by an agreement made with that
bank.
(d) 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 cheque within stipulated period.
Digitally
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Udbhav Udbhav
Kumar Jain
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(e) The drawer fails to make payment within stipulated time after the
receipt of the said notice. [Reference: Kusum Inglots & Alloys Ltd &
Ors v. K Pennar Peterson Securities Ltd and Ors (2000) 2 SCC 745].
6.1. A negotiable instrument including a cheque carries presumption of
consideration in terms of Section 118(a) and presumption of existence of
liability under Section 139 of the Act.
Section 118 Clause (a) of Negotiable Instruments Act reads as under:-
“That every negotiable instrument was made or drawn for consideration and that every
such instrument when it has been accepted, endorsed, negotiated or transferred was
accepted, endorsed, negotiated or transferred for consideration”.
Section 139 of the Negotiable Instruments Act reads as under:-
“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 138, for the discharge, in whole or in
part, or any debt or other liability.”
6.2. The combined effect of Section 118(a) and Section 139 of NI Act is that it
raises a presumption in favour of the holder of the cheque that he has
received the same for discharge in whole or in part of any debt or other
liability. In Rangappa v. Sri Mohan, (2010) 11 SCC 441, a three-judge
bench observed that, Section 139 of the NI Act is stated to be an example
of a reverse onus clause which is in tune with the legislative intent of
improving the credibility of negotiable instruments. The Hon’ble Supreme
Court observed that a reverse onus clause requires the accused to raise a
probable defence or creating doubt about the existence of a legally
enforceable debt or liability for thwarting the prosecution. The standard of
proof for doing so would necessarily be on the basis of “preponderance of
probabilities” and not “beyond shadow of any doubt”.
Digitally
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7. Coming to the present case, complainant as CW-1 relied upon the evidence
by way of affidavit Ex. CW1/A and relied upon following documents in
order to prove essential ingredients of Section 138 NI Act:
a) Original cheque no.010273 dated 14.07.2015 as Ex.CW1/1.
b) Original returning memo dated 16.07.2015 as Ex.CW1/2.
c) Legal notice dated 31.07.2015 as Ex.CW1/3.
d) Postal receipts as Ex.CW1/4.
e) Tracking report as Ex.CW1/5.
f) Payment Receipt as Ex.CW1/6.
8. In the present case, although accused has disputed the issuance of cheque in
question, but he has admitted his signature on the cheque in question as per
the notice of substance of accusation u/s 251 CrPC as well as statement of
accused u/s 313 CrPC. Hence, the presumption under sections 118 and 139
of the NI Act would operate. As far as the legal notice Ex. CW1/3 is
concerned, complainant has relied upon postal receipt Ex.CW1/4 and
tracking report Ex.CW1/5 to show that the legal notice was served upon the
accused. Accused denied receiving of the legal notice but has admitted in
statement of accused u/s 313 CrPC that he received the legal notice. Even in
the bail bond furnished by him same address as mentioned in the legal notice
and memo of parties is provided. Moreover, the statutory presumption of
delivery of legal notice is also in favour of the complainant in view of the
decision of Hon’ble Apex Court in C.C. Alavi Haji v. P. Mohammad (2007)
6 SCC 555. Therefore, legal notice Ex. CW1/3 is deemed to be served upon
the accused in the absence of any evidence to the contrary.
Digitally
signed by
Udbhav Udbhav
Kumar Jain
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9. In the case of Kalamani Tex v. P. Balasubramanian, (2021) 5 SCC 283
the Hon’ble Supreme Court has held that the Statute mandates that once the
signature(s) of an accused on the cheque/negotiable instrument are
established, then the ‘reverse onus’ clauses become operative. In such a
situation, the obligation shifts upon the accused to discharge the
presumption imposed upon him. Now it is upon the accused to rebut the
presumption u/s 139 of NI Act by raising a probable defence on a scale of
preponderance of probabilities.
10.The Hon’ble Supreme Court in Kumar Exports v. Sharma Carpets (2009)
2 SCC 513 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. Thus, it is well established that to rebut the presumption raised
against the accused, it is not imperative for the accused to lead direct/definite
evidence, even relying on the facts and circumstances of the case as well as
flaws in evidence of the complainant such presumption can be rebutted.
11.The defence of accused as per notice of substance of accusation u/s 251
CrPC is as following:
“In September, 2014 I have taken Rs.60,000/- @ 10% per month interest for
the period of six months. Complainant has received six blank signed cheques
from me and also one blank stamp paper and a plain blank paper was also
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signed by me in this regard. However, the said blank paper was partly written
on the lower side by me. I had regularly made the payment of Rs.6,000/- per
month as interest to the complainant. In April, 2015 I returned the whole
amount to the complainant but when I demanded the cheque in question and
the above said stamp paper and blank paper, complainant assured me to
return the same later on. However, on my insistence, complainant gave me a
self written assurance with his signature on the same that he had received the
entire payment from me.”
The defence of accused as per the statement of accused u/s 313 CrPC is as
following:
“The cheque in question belong to me and bears my signatures but other
particulars are not in my handwriting. I had received the legal demand notice.
The cheque in question was given to the complainant as I had borrowed a
sum of Rs.60,000/- from the complainant in December 2014. I had given the
cheque in question along with five other cheques in blank signed condition to
the complainant as security at the time of obtaining the aforesaid loan. I had
repaid the entire amount to the complainant in April 2015 but he misused the
cheque in question by presenting the same to bank for payment. I have no
legal liability towards the complainant. The complainant had also obtained
my signature on some blank papers by giving the aforesaid loan. After the
repayment of the aforesaid loan, I requested the complainant to return my
cheque but he stated that he could not find them and thereafter, he gave a
written document to the effect that he had received the entire amount as loan
as due towards him and no other dues are remaining.”
Evidence of Handwriting Expert
12.In State of Maharashtra and Ors. vs. Sukhdeo Singh and Ors.
MANU/SC/0416/1992 it was observed and held as under:
“After examining the case law this Court proceed to add:
We are firmly of the opinion that there is no rule of law, nor any rule of prudence
which has crystallised into a rule of law, that opinion-evidence of a handwriting
expert must never be acted upon, unless substantially corroborated. But, having
due regard to the imperfect, nature of the science of identification of
handwriting, the approach, as we indicated earlier, should be one of caution.
Reasons for the opinion must be carefully probed and examined. All other
relevant evidence must be considered. In appropriate cases, corroboration may
be sought. In cases where the reasons for the opinion are convincing and there
is no reliable evidence throwing a doubt, the uncorroborated testimony of an
handwriting expert may be accepted. There cannot be any inflexible rule on aDigitally
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Udbhav Udbhav
Kumar Jain
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matter which, in the ultimate analysis, is no more than a question of testimonial
weight.
What emerges from the case law referred to above is that a handwriting expert
is a competent witness whose opinion evidence is recognised as relevant under
the provisions of the Evidence Act and has not been equated to the class of
evidence of an accomplice. It would, therefore, not be fair to approach the
opinion evidence with suspicion but the correct approach would be to weigh the
reasons on which it is based. The quality of his opinion would’ depend on the
soundness of the reasons on which it is. founded. But the court cannot afford to
overlook the fact that the science of identification of handwriting is an imperfect
and frail one as compared to the science of identification of finger-prints; courts
have, therefore, been wary in placing implicit reliance on such opinion evidence
and have looked for corroboration but that is not to say that it is a rule of
prudence of general application regardless of the circumstances of the case and
the quality of expert evidence. No hard and fast rule can. be laid down in this
behalf but the Court has to decide in each case on its own merits what weight it
should attach, to the opinion of the expert.”
13.In view of the above principles this Court proceeds further to find whether
evidence given by the handwriting expert that the document Ex. DX/X is in
the handwriting of the complainant is corroborated with any other evidence
on record.
Defence of accused
14.The accused has disputed the purpose of issuance of cheque to the
complainant and has also denied his liability for the cheque amount.
Accused examined himself as DW-1 in DE and another witness DW-2 i.e.,
the handwriting expert but this Court is of the view accused could prove his
defence that he took loan of Rs. 60,000/- @ 10% per month which he had
already repaid to the complainant. Apart from the disputed document Mark
DX/X, there is nothing on record which supports the version of the accused
that he took loan of such amount and that was repaid to the complainant.
Testimony of accused is merely self-serving. On one hand there is testimony
of the accused while on the other hand there is testimony of the complainant
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CW-1, testimony of attesting witness CW-2 and document/receipt Ex.
CW1/6. Thus, the balance tilts towards the complainant.
14.1.As regards the document Mark DX/X, the document is neither dated nor it
has been countersigned by the accused or any witness. Accused examined
the handwriting expert DW-2 to prove that the document is in the
handwriting of the complainant. The testimony of DW-2 is merely a
corroborative piece of evidence and not a substantive piece of evidence.
Thus, even if it is believed that the said document was written by the
complainant then also accused is not absolved from his liability qua the
cheque in question as accused has failed to disprove the fact that the
complainant advanced the alleged loan and by the testimony of DW-1 and
DW-2, the defence of the accused is not proved. Further, document Mark
DX/X neither disproves nor contradicts the document Ex. CW1/6 and hence,
direct evidence led by the accused fails to rebut the presumption raised
against him.
Case of complainant and liability of accused
15.Accused has admitted his signature on the cheque in question in notice of
substance of accusation u/s 251 CrPC as well as statement of accused u/s
313 CrPC. He has also admitted the issuance of cheque although accused
claimed that he gave the cheque in question as security for loan of Rs.
60,000/-. In such situation, presumption under Section 118 NI Act of
consideration and under Section 139 NI Act of existence of legal liability is
raised against the accused. It was upon the accused to rebut the presumption
raised in favour of the complainant either by leading direct evidence or by
showing circumstances in the case of complainant which make the story of
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complainant unbelievable for a reasonable man. Since accused has failed to
prove his defence by direct evidence, it is to be seen that whether accused
was successful in rebutting the presumption by showing circumstances in
the case of complainant which make the story of complainant unbelievable
for a reasonable man.
15.1.Contentions were raised on behalf of the accused to show that there are
various contradictions and discrepancies in the case of complainant
however, this Court is of the view that there is no such discrepancy or
contradiction on record which is so fatal to the case of complainant that was
able to rebut the presumption raised in favour of complainant or make the
story of complainant unbelievable. Although there are some discrepancies
in the testimony of CW-1 and CW-2, but these discrepancies are not so fatal
to the case of complainant. Even the cheque amount is not a huge amount
so as to disbelieve the story of complainant. Complainant was not required
to prove or show anything else when he examined the attesting witness CW-
2 to prove the document Ex. CW1/6 which shows that the alleged loan was
advanced by the complainant. Moreover, accused neither lodged any
complaint if cheque was misused by the complainant nor he issued stop
payment instructions to his banker. Further, no evidence was led to disprove
or contradict the document Ex. CW1/6. Thus, on the basis of presumption
in favour of complainant, testimony of CW-1 and CW-2, document Ex.
CW1/6, legal liability of accused towards the complainant is duly
established.
15.2.Accused tried to shift the onus upon complainant to show how liability of
accused exists but all the material available on record points out only
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Udbhav UdbhavJain
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towards the liability of accused towards the complainant. There is nothing
on record which makes the version of accused believable. Accused has
failed to show that on the date of presentation of cheque, accused had no
liability towards the complainant.
15.3.The Hon’ble Supreme Court of India in Kalamani Tex v. P.
Balasubramanian, (2021) 5 SCC 283 relied upon Bir Singh v. Mukesh
Kumar (2019) 4 SCC 197 wherein it was held that:
“Even a blank cheque leaf, voluntarily signed and handed over by the
accused, which is towards some payment, would attract presumption under
Section 139 of the Negotiable Instruments Act, in the absence of any cogent
evidence to show that the cheque was not issued in discharge of a debt.”
15.4.The Hon’ble Supreme Court of India in Sripati Singh v. State of
Jharkhand, 2021 SCC OnLine SC 1002 held that:
“A cheque issued as security pursuant to a financial transaction cannot be
considered as a worthless piece of paper under every circumstance.
‘Security’ in its true sense is the state of being safe and the security given
for a loan is something given as a pledge of payment. It is given, deposited
or pledged to make certain the fulfilment of an obligation to which the
parties to the transaction are bound. If in a transaction, a loan is advanced
and the borrower agrees to repay the amount in a specified timef rame and
issues a cheque as security to secure such repayment; if the loan amount is
not repaid in any other form before the due date or if there is no other
understanding or agreement between the parties to defer the payment of
amount, the cheque which is issued as security would mature for
presentation and the drawee of the cheque would be entitled to present the
same. On such presentation, if the same is dishonoured, the consequences
contemplated under Section 138 and the other provisions of N.I. Act wou ld
flow.”
15.5.In the present case, accused has admitted issuance as well as his signature
on the cheque in question although he disputed the purpose of issuance of
the cheque, but he could not prove his contentions either by direct evidence
or by raising doubt in the story of complainant. Hence, mere averment that
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Vipin Kumar Tyagi vs Anil Kumar Udbhav
Udbhav
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the cheque in question was given as security in the absence of any
cogent evidence is not sufficient to rebut the statutory presumption
raised against the accused. Whichever way one looks at it, the only
justification comes up is that accused is liable to pay to complainant the
cheque amount in question as accused failed to discharge his liability.
Conclusion
16.With regard to liability of the accused towards the complainant, firstly it
is admitted by the accused that the cheque in question was issued and
signed by accused. Secondly, Section 118 of NI Act holds presumption in
favour of the complainant with regard to 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, and also of the date that such negotiable instrument bearing
a date was made or drawn on such date. Thirdly, there is presumption of
existence of legal liability by virtue of Section 139 NI Act. Accused should
have led some cogent evidence to show that the complainant presented the
cheque when there was no outstanding liability or complainant misused
the cheque and presented the cheque for encashment. The deposition of
accused is merely self-serving, and the pages of diary as relied upon by
the accused does not prove anything. Nothing substantive has come on
record which supports the defence of accused or which is fatal to the case
of the complainant.
17.What is imperative for the purpose of rebutting the presumption u/s 139 NI
Act, as per the defence of the accused, is that on the date of issuance of
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cheque there should not be any outstanding legal liability towards the
complainant. From reading of evidence by way of affidavit Ex. CW1/B,
notice of substance of accusation u/s 251 CrPC, statement of accused u/s
313 CrPC, testimony of DW-1 and complete record, it is an admitted fact
that the cheque in question was issued and signed by the accused. Therefore,
presumption of consideration u/s 118 NI Act as well as presumption of
existence of legal liability u/s 139 NI Act are in favour of complainant.
Complainant was never confronted with any documents by accused which
supports the version of accused. The complainant has been able to show
existence of liability by virtue of presumption and documents relied upon
by complainant.
18.The touchstone for balancing the discrepancy in case of complainant and
defence of accused is required to be done on the basis of preponderance of
probability as once it is established that the cheque in question was issued
in discharge of legal liability it is the onus upon accused to rebut the
presumption. Accused did not bring on record any substantive evidence to
prove his defence. Mere denial that the cheque in question was not issued
to the complainant to discharge his liability does not lend much credence to
his stand.
Final order:
19.It is true that for offence u/s 138 NI Act the accused is not expected to prove
his defence beyond reasonable doubt in order to rebut the statutory
presumption. However, in the instant case accused has miserably failed to
discharge the onus of proving his defence even on the basis of
preponderance of probabilities. The complainant has proved the guilt of the
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Udbhav UdbhavJain
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accused beyond reasonable doubt. Accordingly, accused Anil Kumar
stands convicted for offence under section 138 NI Act.
Let copy of the Judgment be given to the convict free of cost.
Convict be now heard on quantum of sentence.
A copy of this judgment be uploaded on the official website of the District
Court.
Announced in open court today i.e., 23.12.2024.
Digitally signed
Udbhav by Udbhav
Kumar Jain
Kumar Date:
2024.12.23
Jain 16:21:09
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JMFC-04:SHD:KKDThis judgment contains 16 pages all signed by the presiding officer.
CT Case No.137/2022 Vipin Kumar Tyagi vs Anil Kumar 16 of page no. 16