The accused's defence raised a probable defence to create sufficient doubt in the mind of the court, and it cannot be said that the offence stood established beyond reasonable doubt.

Vipin Sanghi, J. (Open Court):--

1. The present petition, preferred under Section 378 Cr PC seeks leave to appeal against the judgment dated 19.07.2014 passed by the learned MM-1 (NI Act), South-West District, New Delhi in CC No. 4612/2014, “M/s Mata Vaishno Finsec Pvt. Ltd. v. Shailender”, whereby the complaint preferred by the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (the Act) for dishonour of cheque issued by the respondent/accused for Rs. 1,52,078/- has been dismissed.

2. The accused admitted his signatures on the cheque in question. However, he denied the other allegations of the petitioner. The case of the petitioner was that upon the respondents request, the petitioner had disbursed a personal loan of Rs. 1,60,000/- to the accused in the month of March 2009 repayable in 24 monthly instalments of Rs. 8,533/- each. The accused was not regular in making payment of the instalments. In this background, to discharge his liability, the accused issued the cheque in question bearing No. 371429 dated 28.01.2011 for Rs. 1,52,078/- drawn on State Bank of India, Delhi University Branch, Delhi-110007. On account of dishonour of the cheque upon presentation for insufficient funds, after issuance of the statutory notice dated 22.02.2011 and waiting for the statutory period, the complaint was preferred.

3. Upon being summoned, the accused took the defence while making his statement under Section 313 Cr PC that he had entered into a Hire Purchase Agreement (HPA) with respect to a second hand RTV with the complainant and had not obtained any personal loan from the complainant. The accused claimed that while executing the HPA, the signatures were obtained on certain blank/stamp papers and 12 blank signed cheques were also obtained from him. The accused claimed that the parties had agreed that the vehicle in question would be transferred in the name of the accused. However, despite repeated requests, the complainant had failed to do so and, consequently, the accused stopped payment. Thereafter the vehicle was also re-possessed by the complainant.

4. The accused examined himself as DW-1 and exhibited several documents, which are as follows:

(i) Payment receipts – Ex. DW-1/1 to DW-1/9

(ii) Fitness certificate of RTV - DW-1/10

(iii) Copy of insurance certificate – DW-1/11

(iv) PUCC certificate – DW-1/12

(v) Registration certificate of RTV – DW-1/13

(vi) Fine receipt for challan of RTV – DW-1/14

(vii) Letters issued by the complainant – Ex.DW-1/16 & DW-1/17

5. The discussion found in the impugned order, on the basis of which the learned Magistrate came to the conclusion that the accused had raised a probable defence reads as follows:

“9. It was argued by the learned defence counsel that the documents on record would clearly establish that the same have been fabricated by the complainant to show that a personal loan was availed by the accused. It was pointed out that the code number of the loan i.e. MVFS/794 mentioned on the account statement Ex CW1/D3, which is a document relied upon by the complainant, is same as that mentioned on the documents Ex DW1/15, Ex DW1/16 and Ex DW1/17. A perusal of Ex DW1/15 would show that same loan number has been mentioned and the ‘asset’ has also been mentioned as an RTV. However the said document is a mere photocopy and hence, not admissible in evidence. Ex DW1/16 is a letter dated 07.07.2010 issued on behalf of the complainant to one Sanjay Kumar Saxena authorising him to seize the RTV bearing registration No. DL1VA 2462 which was the subject matter of a hire purchase agreement. It is noted that same loan number i.e. MVFS/794 has been mentioned on the said letter. Ex DW1/17 is also a letter dated 07.04.2010 issued on behalf of the complainant to the officer in charge of the police station intimating the repossession of the said RTV. The loan number mentioned on the said letter is also MVFS/794. It is noted that the two letters have not been denied on behalf of the complainant and no su