IMPORTANT POINT
Dishonour of cheque – Appeal against acquittal – Presumption under Section 139 read with Section 118 of NI Act is essentially based on pure common sense – Statement of accused under Section 313 Cr.P.C. cannot be read as evidence for the purpose of rebutting presumption raised under Section 139 NI Act.

JUDGMENT

This decision allows present appeal that arose out of CRL.L.P 576/2019 seeking leave to appeal against judgement dated 01st August 2019, passed by Metropolitan Magistrate (02), Shahdara, Karkardooma Courts, Delhi [“Trial Court”] in Complaint Case 4851/2018 titled Amit Jain v. Sanjeev Kumar Singh & Ors. [“impugned judgement”]. Therein, respondent was acquitted of offence under Section 138, Negotiable Instruments Act, 1888 [“NI Act”]. Leave to appeal was granted by this Court vide order dated 22nd October 2019 and matter was renumbered as present appeal.

Background Facts

2. According to appellant, respondent no.1 was his friend and in May 2016, appellant gave a friendly loan of Rs. 3,60,000/- [Rupees Three Lacs Sixty Thousand only] without interest, to be repaid by 30th April 2017. Respondent no.1 is the Director of respondent no.2 company M/s Naina Packing Private Limited.

3. In May 2017, repeated requests were made by appellant for recovery of said amount. Subsequently, respondent no.1 issued a cheque bearing no. 863416 dated 03rd July 2019 for a sum of Rs. 1,80,000/- [Rupees One Lac Eighty Thousand only] drawn on Bank, Patparganj branch, Delhi [“the cheque”] towards part payment Vijaya of the said loan, from respondent no.2 company in a personal capacity.

4. Appellant presented the cheque with his bank, but it returned with the remark “funds insufficient” vide cheque return memo dated 03rd September 2017. Appellant received the cheque return memo from his bank on 18th October 2017 through Speed Post No. ED38567127IN.

5. Appellant served a legal demand notice dated 06th November 2017 for recovery of the cheque amount through speed post on 07th November 2017; same was duly served on the respondents on 09th November 2019, however, no reply was received. Aggrieved thereby, appellant filed complaint case on 21st December 2017 under Section 138, NI Act before the Trial Court. Summons in the complaint case were issued upon respondents. Vide order dated 20th October 2019, Trial Court framed charges against respondent no. 1 to which, he pleaded not guilty and claimed trial.

6. Trial proceeded with appellant as CW1 and he was cross-examined. Statement of respondent no.1 was recorded under Section 313, Code of Criminal Procedure, 1973 [“CrPC”] wherein he admitted to the signatures on the cheque in question, however, denied that he had given the cheque to anyone or filling the particulars in it. He also denied receipt of the legal demand notice, denied knowing the appellant/complainant and stated that he had no liability towards the latter. Lastly, he stated that he did not wish to lead any defence evidence. Post final arguments, impugned judgement was rendered acquitting respondents.

Submissions of Appellant

7. Counsel for appellant submitted that Trial Court did not consider the fact that once respondent no.1/accused admitted his signature on the cheque, presumption lies against the accused i.e. accused would have the burden of proof to rebut the presumption. It was stressed that respondents refused to lead defence evidence and were unable to prove his statement under Section 313 CrPC, that the cheque was not given to the appellant or was not known to the appellant.

8. Reliance was placed on decision of the Supreme Court in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197 which deals with presumption under Section 139 NI Act, basis which, it was contended that since respondent failed to lead evidence post statement under Section 313 CrPC, burden was on the accused/respondent to prove that the cheque was not issued by him. Also, respondents did not bring any material to rebut presumption under Section 139 NI Act, which is in favour of the cheque holder. Counsel for appellant also stated that the date of the loan was mentioned in the complaint, as opposed to the impugned order, which notes that it has not been mentioned.

Submissions of Respondents

9. On the other hand, counsel for respondents submitted that the impugned ord