The presumption in favour of the holder of a negotiable instrument under sections 118 and 139 of the Negotiable Instruments Act, 1881 can be rebutted by the accused by raising a probable defence. The standard of proof required to rebut the presumption is preponderance of probabilities.

CRL. A. 786/2023

Page 1

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IN THE HIGH COURT OF DELHI AT NEW DELHI

%

Reserved on: September 13, 2023

Date of Decision: December 19, 2023

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CRL. A. 786/2023

JAL SINGH MALIK

..... Petitioner

Through: Mr. Sajan K. Singh and Ms.

Sangeeta Singh, Advocates

V

OM PRAKASH

....Respondent

Through: Mr. Prashant Sharma and

Mr.

Ravi

Kant

Gautam,

Advocates

CORAM

HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN

JUDGMENT

1. The present Appeal bearing no.786/2023 is filed under section 378

of the Code of Criminal Procedure, 1973 (hereinafter referred to as

“the Code”) read with section 482 of the Code to challenge judgment

02.04.2019 passed by Ms. Prabh Deep Kaur, Metropolitan Magistrate-

02, South, Saket Courts, Delhi (hereinafter referred to as the “trial

Digitally Signed

By:JITENDRA

Signing Date:21.12.2023

11:33:01

Signature Not Verified

CRL. A. 786/2023

Page 2

court”) bearing CC no. 471383/2016 titled as Jal Singh Malik V Om

Prakash.

2. The appellant/complainant Jai Singh Malik (hereinafter referred to

as “the appellant”) through attorney Mala Devi Malik filed a

complaint under section 138 of the Negotiable Instruments Act, 1881

(hereinafter referred as “the Act”) against the namely Om

Prakash/accused (hereinafter referred to as the “respondent”) on

allegations that the respondent issued a cheque bearing no. 098957

dated 10.01.2016 amounting to Rs. 6,00,000/- drawn on State Bank of

India, Ambedkar Nagar, Delhi–110017 (hereinafter referred to as “the

cheque in question”) in favour of the appellant towards discharge of

liability and the said cheque got dishonoured when presented for

encashment on the ground of “funds insufficient” vide return memo

dated 15.03.2016. The appellant pleaded that the appellant, a member

of paramilitary force, was advised by the respondent who is also

relative of the appellant to purchase a flat in Delhi. The appellant has

agreed to purchase a flat in locality of Krishna Park/Jawahar Park. The

appellant had deposited Rs.4,47,095/- in two accounts bearing no

160010100050643 and 10207358344 maintained at Axis Bank and

Digitally Signed

By:JITENDRA

Signing Date:21.12.2023

11:33:01

Signature Not Verified

CRL. A. 786/2023

Page 3

State Bank Of India during period from 07.02.2008 to 2012 and gave

Rs. 1,52,905 in cash in the year 2013 to 2014 total Rs.6,00,000/- to the

respondent on assurance of the respondent regarding purchase flat for

the appellant.

2.1 The respondent avoided to purchase a flat for the appellant orto

return the amount already paid to the respondent. The respondent due

to intervention of the relatives had agreed to pay back Rs.6,00,000/- to

the appellant in the month of December 2015 and accordingly issued a

post-dated cheque i.e. cheque in question in favour of the appellant to

liquidate the admitted legal liability with assurance that cheque in

question would be encashed. The appellant presented cheque in

question for encashment to its banker i.e. State Bank Of India, Branch

Sangam Vihar on 11.03.2016 but the said cheque was not honoured

and returned back unpaid vide cheque return memo dated 15.03.2016

with remarks "funds insufficient”. The respondent did not paid the

cheque amount despite notice dated 16.03.2016 within stipulated

period. Hence the complainant filed present complaint.

2.2 The court of Ms. Preeti Parewa, Metropolitan Magistrate-02, NI

Act. Saket vide order dated 23.04.2016 observed that there are

Digitally Signed

By:JITENDRA

Signing Date:21.12.2023

11:33:01

Signature Not Verified

CRL. A. 786/2023

Page 4

sufficient ground for proceedings against the respondent and

accordingly issued the summons to the respondent. The respondent

vide order dated 06.08.2016 was given notice under section 251 of the

Code for offences punishable under section 138 of the Act to which

the respondent pleaded not guilty and claimed trial. Th