The burden of proof under Section 138 of the NI Act lies on the accused to establish a probable defense against established presumption of debt when signatures on cheques are admitted.

JUDGMENT :

AMIT MAHAJAN, J.

1. The present petition is filed under Section 397 read with Section 482 of the Code of Criminal Procedure, 1973 (‘CrPC’) against the judgment dated 24.05.2023 (hereafter ‘impugned order’) passed by the learned Additional Sessions Judge (‘ASJ’), South West, Dwarka Courts, Delhi in CA No. 101/2021 titled Satish Kumar Jain vs. Jugal Kishore & Anr.

2. By impugned order, the learned ASJ dismissed the appeal filed by the petitioner against the judgment dated 07.03.2020 and order on sentence dated 28.08.2021, passed by the learned Metropolitan Magistrate (‘MM’), Dwarka Courts, Delhi whereby the petitioner was convicted under Section 138 of the Negotiable Instruments Act, 1881 (‘NI Act’).

3. The subject complaint was filed under Section 138 of the NI Act at the behest of the complainant/Respondent alleging that the petitioner and respondent were well known to each other. It is alleged that the respondent advanced a friendly loan for a sum of Rs. 1,50,000/- to the petitioner who allegedly promised to repay the same in September 2016. It is alleged that thereafter the petitioner, in discharge of the liability, advanced two cheques for a sum of Rs. 1,00,000/- and Rs. 50,000/- by way of cheques being cheques no. 712377 and 712378 dated 22.10.2016 and 28.10.2016 respectively, with the assurance that the same would be honoured upon presentation.

4. It is alleged that, upon presentation, the said cheques were returned unpaid with remarks “funds insufficient” vide return memo dated 19.01.2017. It is alleged that thereafter the respondent served a legal notice dated 15.02.2017 upon the petitioner through a counsel demanding the said amount. Thereafter, upon the failure of the petitioner to repay the amount within the statutory period, the respondent filed a complaint under Section 138 of the NI Act.

5. The learned MM vide order dated 07.03.2020 convicted the petitioner for an offence under Section 138 of the NI Act. The learned MM observed that the petitioner admitted his signatures on the cheques in question, not only in the notice under Section 251 of the CrPC but also in his statement under Section 313 of the CrPC and in defence evidence. Consequently, there arose a rebuttable presumption in favour of the respondent. It was observed that the petitioner could have rebutted the presumptions by leading direct evidence or from the case set out by the respondent in the averments made in the complaint, statutory notice and evidence adduced by the respondent during the trial.

6. It was noted that the principal defence taken by the petitioner in his statement under Section 313 of the CrPC, and his examination in chief, was that he did not know the respondent and had no transactions with him. It was contended that the petitioner had advanced the cheques in question to one Vinod Tiwari as blank signed security cheques. It was the petitioner’s case that he had in fact taken a loan for a sum of Rs. 1,00,000/- from Vinod Tiwari, and had also given a blank signed paper to Vinod Tiwari. It was also the petitioner’s case that he repaid Rs. 74,000/- to Vinod Tiwari in cash. The petitioner, in addition, denied any liability towards the respondent, or how the respondent came in possession of the petitioner’s cheques.

7. The learned MM, however, noted that the petitioner failed to lead any evidence to corroborate any of his contentions. It was noted that the petitioner himself stated that he did not have any receipt regarding any repayment made to Vinod Tiwa