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IN THE HIGH COURT OF DELHI AT NEW DELHI
Swarana Kanta Sharma, J.
Ammar Ahmad Khan – Appellant
Versus
State of NCT of Delhi & Anr. – Respondents
Cr.M.C. 2239 of 2019 & Cr.M.A. 8946 of 2019
Decided On : 13-09-2023
NI Act - Summoning Order - Section 138 of NI Act - 118(a), 139 of NI Act - The court upheld the summoning order under Section 138 of NI Act against the petitioner. The court discussed the presumption in favor of the holder under Section 139 and the rebuttable nature of the presumption. The court also referred to the overruling of a precedent by the Three-judges Bench of the Hon'ble Apex Court in Rangappa v. Sri Mohan, (2010) 11 SCC 441, which held that the presumption under Section 139 includes the existence of a legally enforceable debt or liability.
Fact of the Case:
The petitioner was summoned under Section 138 of NI Act based on a complaint filed by the respondent alleging that the petitioner had obtained Rs. 50 lakhs from the respondent and issued a post-dated cheque which was dishonored. The petitioner challenged the summoning order, arguing that the debt was not legally recoverable and that the complainant had lodged similar cases against others.
Finding of the Court:
The court upheld the summoning order, noting that the petitioner had not disputed the issuance of the cheque and that the presumption under Section 139 of NI Act would arise. The court emphasized the rebuttable nature of the presumption and the need for the accused to raise a probable defense.
Issues: The primary issue was whether the debt was legally recoverable, and whether the presumption under Section 139 of NI Act would apply. The court also considered the petitioner's contention regarding the complainant's history of similar cases.
Ratio Decidendi: The court held that the presumption under Section 139 of NI Act includes the existence of a legally enforceable debt or liability. The court emphasized the rebuttable nature of the presumption and the need for the accused to raise a probable defense.
Final Decision: The petition was dismissed, and the court upheld the summoning order under Section 138 of NI Act. The court emphasized that the arguments and issues raised could only be considered during the trial.
JUDGMENT
Swarana Kanta Sharma, J.
1. The petitioner, by way of present petition filed under Section 482 of the Code of Criminal Procedure, 1973 (`Cr.P.C.'), impugns the order dated 20.09.2018 passed by learned Special Judge (PC Act), CBI-1, Saket Courts, New Delhi (`Revisional Court') in Criminal Revision No. 383/2018 vide which the summoning order dated 13.04.2018 passed by learned Metropolitan Magistrate-01, NI Act, South District, Saket Courts, New Delhi (`Trial Court') in CC No. 4617/2018 was upheld.
2. Brief facts of the case are that a complaint was filed under Section 138 of Negotiable Instruments Act, 1881 (`NI Act') by respondent no. 2/complainant alleging that the petitioner had been known to the complainant for last three years and had approached him in the month of July, 2017 intending to purchase a property where he was already residing at New Friends Colony, New Delhi. The complainant had arranged Rs. 50 lakhs as sought by the petitioner and had advanced Rs. 50 lakhs on 07.09.2017 to the petitioner on the assurance that money will be returned immediately when his house loan is sanctioned and even if the house loan was not sanctioned, he had undertaken to return the same by October, 2017. As per complainant, he had started requesting the petitioner to return the money in October, 2017 which he had given for purchasing house but to the surprise and shock of the complainant, he had got to know that the property which the petitioner had represented to purchase was not for sale in the market and he had no plan to purchase the same or any other property. It was alleged that petitioner had misrepresented dishonestly with malafide intention to the complainant that he needed money to purchase the property so that he could obtained huge amount of Rs. 50 lakhs from the complainant. The complainant had also filed a complaint case under Section 156(3) of Cr.P.C. for registration of FIR against the petitioner. It was further alleged by complainant that on 12.01.2018, the petitioner had handed over a post-dated cheque i.e. cheque bearing no. 000129, dated 31.01.2018, drawn on HDFC Bank, New Friends Colony to the complainant and he had also assured him that the cheque issued would be honoured on presentation. However, when the cheque was presented on 23.02.2018, the same had returned unpaid by the bank with the remarks `Insufficient Funds'. Thereafter, the complainant had sent a legal notice dated 10.03.2018 to the petitioner requesting him to make payment within 15 days of receipt of the notice, however, no reply or payment was received. Thereafter, on 10.04.2018, the complainant had filed the present complaint against the petitioner under Section 138 of NI Act.
3. The learned Trial Court vide order dated 13.04.2018 had issued summons to the petitioner. The order of summoning was challenged by the petitioner, however, the learned Revisional Court was pleased to dismiss the revision petition filed by the petitioner vide order dated 20.09.2018. Aggrieved by these orders, the petitioner has preferred the present petition before this Court.
4. Learned counsel for the petitioner argues that the summoning order passed by the learned Trial Court is cryptic and against law, and the learned Revisional Court has failed to appreciate that the Trial Court while passing the impugned summoning order has not followed the law laid down by the Hon'ble Apex Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54. It is argued that existence of `legally recovery debt' is not a matter of presumption under Section 139 of the Act; rather, Section 139 merely raises a presumption in favour of a holder of the cheque that same has been issued for discharge of any debt or other liability. It is stated that the presumption has to be in regard to existence of a legally enforceable debt. It is stated that both the Courts below have failed to appreciate that the complainant did not produce his income tax returns to show whether the said lo
AI
The presumption under Section 139 of the Negotiable Instruments Act regarding legally enforceable debt is rebuttable; the failure to prove such debt leads to liability under Section 138.
The presumption under Section 139 of N.I. Act is a presumption of law, as distinguished from the presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of i....
The presumption of legally recoverable debt under sections 118 and 139 of the N.I. Act requires the accused to rebut it with evidence, which was not done in this case.
Dishonour of cheque – Whereas prosecution must prove guilt of an accused beyond all reasonable doubt, standard of proof so as to prove a defence on part of accused is preponderance of probabilities.
The presumption in favor of the complainant under the N.I. Act is rebuttable, and the standard of proof required to prove a defense in a criminal case is preponderance of probabilities.
The presumption of liability under the NI Act is rebuttable, and the burden of proof lies on the complainant to establish the existence of a legally enforceable debt.
Dishonour of cheque – Jurisdiction under Section 482 of Cr.P.C. or Article 226 Constitution of India is requires to be exercised in circumspection and sparingly.
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