The burden of proof on the complainant to establish the existence of the debt in respect of which the cheque was claimed to have been issued, and the impact of non-compliance with Section 65B of the Indian Evidence Act on the admissibility of electronic records as evidence.

Vipin Sanghi, J.

1. This application to seek leave to appeal has been preferred under section 378(4) Cr PC to assail the judgment dated 02.02.2016 passed by the learned Metropolitan Magistrate (T), North-East, Karkardooma Courts, Delhi in CC No.46192/2015, titled Banshidhar Chits (P) Ltd. v. Chandra Prakash Aggarwal. By the impugned order, the said complaint preferred by the petitioner under Section 138 Negotiable Instruments Act, 1881 has been dismissed by the learned Magistrate and the respondent/ accused has been acquitted of the said offence.

2. The leave to appeal is delayed by 26 days and, accordingly, the petitioner has filed an application to seek condonation of delay vide Crl MA No.10130/2016. However, since I have heard learned counsel for the petitioner and I am not inclined to grant leave, no useful purpose would be served in issuing notice on the said application seeking condonation of delay.

3. The case of the petitioner is that it is dealing in the business of chit fund. The accused is a member of the chit group BCPL/1 and BCPL/3 of the complainant. He is also a member of the chit group SBD/18, SBD/20, SBD/23 of a sister concern of the complainant/ petitioner M/s. Shree Bhaiya Dass Chits Pvt. Ltd. The case of the complainant was that the accused was paid monies through cash as well as cheques under the schemes. However, he failed to pay the instalments despite requests. He settled the account on 14.10.2012 in respect of all his accounts with the complainant as well as the sister concern Shree Bhaiya Dass Chits Pvt. Ltd. He had issued a post dated cheque bearing no.000037 dated 10.12.2012 drawn of Bank of India, Chandni Chowk Branch to discharge his liability owed to the petitioner as well as Shree Bhaiya Dass Chits Pvt. Ltd. The said cheque was dishonoured upon presentation. Consequently, after issuance of the statutory notice, since the payment was not made, the complaint was preferred.

4. The respondent/accused was summoned. He pleaded not guilty and claimed trial.

5. The statement of the accused was accordingly recorded. He stated that the cheque had been issued in blank for the purpose of security as he was a member of the complainants chit fund. The accused moved an application under section 145(2) of the Negotiable Instruments Act to cross examine the witness of the complainant, which was allowed. The petitioner/complainant led in evidence several documents including the settlement letter executed by the accused as Ex. CW-1/D; the statement of account of the respondent/accused maintained with the complainant as Ex. CW-1/N running into 12 pages, and; copy of the ledger account of Shree Bhaiya Dass Chits Pvt. Ltd. and Banshidhar Chits as Ex. CW-1/O (Colly) running into 10 pages.

6. In his statement recorded under Section 313 Cr PC, the accused stated that he had taken a loan of Rs.50,000/- from the complainant against blank cheques. He stated that his signatures were taken on blank papers and that he had no liability to pay to the complainant or its sister concern. He also examined himself as DW-1 in support of his defence. He stated that he and his wife were members of the chit of the complainant company. He had taken a loan of Rs.50,000/- from the complainant. At the time of taking loan, the complainant company had taken three blank cheques and also signatures and thumb impressions on three blank papers. The same were not returned and one of those cheques have been misused by the complainant. He stated that he had filed a complaint against the complainant company with the police and also filed a recovery suit for Rs.7 lacs against the complainant company which is pending adjudication. His wife had also filed a recovery suit against the complainant company which was pending adjudication. He examined his wife as DW-2, who deposed on the same lines.

7. The learned Magistrate examined the issue whether the accused had dislodged the legal presumption in the light of the evidence led by the parties, and found