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DELHI HIGH COURT
Sunita Gupta, J.
G. L. Sharma —Appellant
versus
Hemant Kishor —Respondent
Crl.A. Nos.1400 & 1401 of 2011 & Crl.M.A. Nos. 4776 & 4777 of 2014
Decided on 13.1.2015
For the Appellant:Mr. K.K. Manan, Mr. Nipun Bhardwaj and Mr. Ravinder, Advocates along with appellant in person
For the Respondent:Mr. Vikash Chandra and Mr. S.L. Gupta, Advocates
IMPORTANT POINT
If accused is able to raise probable defence which creates doubts about existence of a legally enforceable debt or liability, prosecution can fail.
Headnote:(A) Negotiable Instruments Act, 1881—Section 138 read with Sections 118 and 139—Criminal Procedure Code, 1973—Section 203—Dishonour of cheque—Once cheque relates to account of accused and he accepts and admits signature on cheque then initial presumption as contemplated under Section 139 of the Act has to be raised by Court in favour of complainant—Presumption referred to in Section 139 of the Act is a mandatory presumption and not a general presumption, but accused is entitled to rebut presumption—What is required to be established by accused in order to rebut presumption is different from each case under given circumstances—Defence raised by way of rebuttal evidence must be probable and capable of being accepted by Court— Accused has failed to raise probable defence which may create doubts about existence of legally enforceable debt or liability—Criminal appeals allowed setting aside acquittal recorded by Trial Court and accused held guilty of offence under Section 138 of the Act and directed to pay sum of Rs.4,50,000/- each. (Paras 12 to 17)
(B) Negotiable Instruments Act, 1881—Section 138 read with Sections 118 and 139—Dishonour of cheque—When an accused has to rebut presumption under Section 139, standard of proof for doing so is that of preponderance of probabilities—If accused is able to raise probable defence which creates doubts about existence of a legally enforceable debt or liability, prosecution can fail. (Para 11)
Result: Appeals allowed.
Sunita Gupta, J.—Vide this common judgment, I shall dispose of two appeals bearing Crl.A.No.1400/2011 and 1401/2011 as both the appeals have been filed by an unsuccessful complainant in case relating to offence punishable under Section 138 of Negotiable Instruments Act, 1881 (in short “NI Act”) against the respondents who are mother and son, inter alia, on the allegation that CC No.1953/1/2009 was filed before Additional Chief Metropolitan Magistrate against the accused Hemant Kishore on the ground that the accused, for repayment of his debt liability, issued one cheque bearing No.717470 dated 22nd August, 2008 for Rs.3 lacs drawn on Indian Bank, New Delhi but on presentation, the cheque was returned unpaid with remarks “fund insufficient”. Thereafter, a legal notice dated 16th March, 2009 was issued by the complainant demanding the money but on failure of the accused to pay the amount, the complaint was filed. CC No. 1954/1/2009 was filed against the accused Shobha Saxena on the allegations that cheque bearing No.538942 dated 7.1.2009 amounting to Rs.3,00,000/- drawn on Indian Overseas Bank, New Delhi was issued towards discharge of debt liability which on presentation was dishonoured on 24.4.2009 with remarks ‘funds insufficient’. Legal demand notice dated 6.5.2009 was issued by the complainant demanding the amount. On failure to pay the amount, the complaint was filed. After being satisfied that prima facie case against the accused u/s 138 NI Act was made out, cognizance was taken and accused were summoned. Notice under Section 251 Cr.P.C. was framed against them to which they pleaded not guilty and claimed trial.
2. The complainant examined himself as CW1 by adopting his affidavit Ex.CW1/A and exhibited the following documents:-
(i) Cheque bearing No.717470 dated 22.08.2008 amounting to Rs.3,00,000/- (Rupees Three Lacs only) drawn on Indian Bank, New Delhi as Ex.CW1/1 in CC No.1953/1/2009 and cheque bearing No. 538942 dated 7.1.2009 amounting to Rs. 3,00,000/- drawn on Indian Overseas Bank as Ex.CW1/1 in CC No.1954/1/09.
(ii) Returning memo dated 21.02.2009 with remarks “refer to drawer” as Ex.CW1/2 in CC No. 1953/1/2009 and returning memo dated 24.4.09 with remarks ‘funds insufficient’ as Ex. CW1/2 in CC No.1954/1/2009.
(iii) Legal demand notice dated 16.03.2009 as Ex.CW1/3. Postal dispatch receipt as Ex.CW1/4 and AD card as Ex.CW1/5 in CC No.1953/1/2009 and legal demand notice dated 6.5.2009 as Ex.CW1/3, postal dispatch receipt as Ex.CW1/4, UPC dispatch receipt as Ex.CW1/5 and AD Card as Ex.CW1/6 in CC No.1954/1/2009.
3. All the incriminating evidence was put to the accused while recording their statements under Section 313 Cr.P.C. wherein substantially similar plea was taken. Signatures on the cheque were not denied, however, it was alleged that the cheque was not issued towards any debt or liability. It was a blank signed cheque and was given to Chit Fund Committee as a security. They further denied having taken any loan from the complainant or that any legal notice was received by them. One witness, namely, Rajesh Kumar-DW1 was examined in defence evidence. After referring to the provisions of Section 138, 118 Clause (a), 146 and 139 of NI Act, learned Trial Court observed that a combined reading of these Sections 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. However, the presumption available under Section 139 NI Act can be rebutted by the accused by raising the probable defence and the burden is on the accused. Having said so, the learned Trial Court dismissed the complaint by relying upon M/s. Pine Product Industries & Anr. vs. M/s. R.P. Gupta & Sons & Anr., 2007 (99) DRJ 352, primarily on the ground that the averments made in the complaint are vague in nature and bereft of necessary details and, therefore, acquitted the accused.
4. Assailing the findings of the learned Trial Court, it was submitte
