The main legal point established in the judgment is that the complainant must establish the liability of the accused regarding the cheque, and the accused can rebut the presumption under Section 138 of the Negotiable Instruments Act by providing evidence that the cheque was issued as a security cheque.

Vipin Sanghi, J.

1. This petition has been preferred to seek leave to appeal under Section 378 (3) of the Code of Criminal Procedure (Cr PC) against the judgment dated 04.07.2013 passed by the learned Metropolitan Magistrate, Dwarka Courts, Delhi in CC No.3365/2012 by the petitioner under Section 138 of the Negotiable Instruments Act (the Act) titled Saj Properties Pvt. Ltd. v. Virender Dagar. By the impugned judgment, the learned MM has acquitted the respondent/accused of the alleged offence.

2. The case of the petitioner/complainant was that the respondent/accused had issued the cheque dated 30.10.2009 for a sum of Rs.12 lacs drawn on Bank of Baroda, Smalka Branch, Delhi in favour of the complainant towards discharge of his legally payable debt to the complainant. The petitioner claimed that in order to recover the legally recoverable dues, the complainant presented the cheque in question on the instructions of the accused with the respondents banker within the statutory period. However, the cheque was returned unpaid on the ground of stop payment instructions vide returning memo dated 23.04.2010. A legal demand notice was issued on 20.05.2010. Despite receipt of the same, the accused did not make payment. Consequently, the said complaint was preferred by the complainant.

3. Upon being summoned, the accused entered appearance on 18.09.2010, whereafter notice was framed upon the accused on 18.08.2011. The accused pleaded ‘not guilty’ and claimed trial. The AR of the complainant Sh. Manoj Aggarwal entered into the witness box as CW-1. He exhibited several documents in his deposition. He was cross examined by the accused and was confronted with Ex. CW1/X1 i.e. the reply dated 07.06.2010 given by the accused to the legal demand notice of the complainant.

4. The statement of the accused under Section 313 Cr PC was recorded on 01.12.2012, wherein the accused expressed his desire to lead defence evidence. The accused examined himself under Section 315 Cr PC as DW-1. The defence of the accused was that he met Mr. Manoj Aggarwal of the petitioner company through one Sh. Kushalappa in the month of September 2009, who apprised him about some property of the complainant company in village Sahalpur and enquired if the accused was interested in purchasing the same. DW-1 deposed that some talks qua the same commenced with Manoj Aggarwal, and after negotiations, an agreement was arrived at. A written agreement was also got typed through a counsel. However, at the last moment, the complainant refused to execute the same. The complainant agreed to get the NOC from the concerned department in respect of the property while asking the accused to give a signed blank cheque of Rs.12 lacs. The accused claimed that the cheque in question was, accordingly, given to Manoj Aggarwal to book the deal.

5. He further deposed that Manoj Aggarwal applied for NOC with the concerned department and got the same. DW-1 stated that the entire deal was concluded in the office of the advocate of the complainant, Sh. Ratan Kumar Singh. The conveyance deed for transfer of title was signed by the parties, i.e. the accused and Mr. Bithhal Dass Parwal, in the office of the advocate of the complainant company. On 26.10.2009, the parties reached the office of the Sub Registrar, Kapasehera for registration of the title documents. Sh.Bithhal Das, the director of the complainant, executed a special power of attorney on behalf of the complainant company, in favour of the accused, in respect of the land situated at village Salahpur, Delhi.

6. DW-1 deposed that an amount of Rs.1,72,26,000/- had been paid to the complainant by way of cheque drawn on ING Vysya Bank issued from the joint account of the accused and his wife. He further stated that he demanded the return of the cheque of Rs.12 lacs given at the time booking of the deal from Manoj Aggarwal on 26.10.2009, but he replied that the cheque in question is lying at the main office of the complainant at Jaipur and that they