Delhi District CourtSurinder Kumar Arora vs Vinod Khurana on 29 November, 2018IN THE COURT OF MS. PRIYANKA RAJPOOT, METROPOLITAN MAGISTRATE,
                           NORTH-WEST, ROHINI, DELHI

CC No. 18890/16

Surinder Kumar Arora
S/o Sh. Hukum Chand Arora
R/o D-161, Prashant Vihar,
Delhi-110085                                                               ............Complainant


                                            Versus


Vinod Khurana
S/o Sh. Hargovind Khurana
R/o House NO. 80, Block A-7,
Sector-15, Rohini,
Delhi-110085                                                               .............Accused

                                        JUDGMENT(1)    Name of the complainant,                    :        Surinder Kumar Arora
       parentage and address                                S/o Sh. Hukum Chand Arora
                                                            R/o D-161, Prashant Vihar,
                                                            Delhi-110085

(2)    Name of accused,                            :        Vinod Khurana
       parentage and address                                S/o Sh. Hargovind Khurana
                                                            R/o House NO. 80, Block A-7,
                                                            Sector-15, Rohini,
                                                            Delhi-110085

(3)    Offence complained of or
       proved                                      :        138N.I. Act(4)    Plea of accused                             :        Pleaded not guilty


(5)    Date of institution of case                 :        03.07.2014


(6)    Date of conclusion of arguments             :        27.10.2018


(7)    Date of Final Order                         :        29.11.2018


(8)    Final Order                                 :        Convicted


Surinder Kumar Arora v. Vinod Khurana                  CC No. 18890/2016                    Page no. 11.     Vide this judgment I shall dispose of the complaint filed by the complainant underSection
138of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').2.     Brief facts relevant for the decision of the case are as under:-That the accused and the complainant were having good friendly relations. In the month
of December 2013, the accused approached the complainant and requested him to advance
friendly loan of Rs.2,00,000/- for two months. The complainant advanced the said amount to the
accused. In the month of March 2014, the accused again approached him for loan of
Rs.1,00,000/- which was advanced by the complainant. The accused promised to repay the
friendly loan to the complainant. In discharge of his legal liability, the accused issued three post
dated cheques tabulated as under:-Serial Cheque Dated                 Amounting    Drawn on
number number
1.         602254 25.04.2014 Rs.1,00,000/-       Punjab & Sind Bank, Mangolpuri, Delhi-110083.
2.         602255 26.04.2014 Rs.1,00,000/-       Punjab & Sind Bank, Mangolpuri, Delhi-110083.
3.         602256 28.04.2014 Rs.1,00,000/-       Punjab & Sind Bank, Mangolpuri, Delhi-110083.On presentation, the aforesaid cheques got dishonoured vide returning memos dated
29.04.2014 and 01.05.2014 for the reasons "funds insufficient". Thereafter, the complainant
issued a legal notice dated 22.05.2014 through registered A.D. and courier, however, the
accused neither sent any reply to the same nor paid any amount to the complainant. Thereafter,
complainant filed the present complaint case with the submission that accused be summoned,
tried and punished according to law.3.     In his pre-summoning evidence, complainant examined himself on affidavit Ex. CW-1/1A.
He reiterated the contents of complaint and placed on record, three cheques that are bearing
no. 602256 dated 28.04.2014 for a sum of Rs.1,00,000/-, bearing no. 602256 dated 28.04.2014
for a sum of Rs.1,00,000/- & bearing no. 602256 dated 28.04.2014 for a sum of Rs.1,00,000/-
drawn on Punjab & Sind Bank, Mangolpuri, Delhi-110083 as Ex. CW-1/1 to Ex. CW-1/3
respectively,
respectively cheques returning memos dated 29.04.2014 & 01.05.2014 as Ex. CW-1/4 to Ex.
CW-1/6, legal notice dated 22.05.2014 as Ex. CW-1/7, postal receipt as Ex. CW-1/8 and
tracking report as Ex. CW-1/9.4.     Upon appreciation of pre-summoning evidence, accused was summoned for an offence


Surinder Kumar Arora v. Vinod Khurana              CC No. 18890/2016                   Page no. 2
 punishable underSection 138of the Act and notice underSection 251Cr.P.C. for this offence
was framed upon accused on 15.01.2015 to which he pleaded not guilty and claimed trial. He
took the defence that he gave the cheques in question to the complainant, but not in discharge
of any debt or liability but as advance for loan to be provided by the complainant. He also
alleged that the complainant neither gave him any loan nor returned his cheques.5.     Thereafter, the complainant examined, cross-examined and discharged.           During the
cross-examination, the complainant stated that he knew the accused for the last 13-14 years.
He also stated that he does not remember on which date Rs.2,00,000/- were demanded by the
accused. He also stated that he does not remember on which the amount was given by him. He
also stated that no receipt was taken from the accused while advancing the amount. He also
stated that in March 2014 he gave Rs.1,00,000/- to the accused but he could not recall the
exact date. He also stated that he had withdrawn some money from his bank account in the
month of December and March. He also stated that he is an income tax payee. He also stated
that he does not remember how much amount was withdrawn by him from his bank in the
month of December 2013 and March 2014. He also stated that he does not remember how
much amount was lying at his home in the said months. He also stated that the legal notice
Ex.CW-1/7 does not bear his signatures. He denied the suggestion that he did not send any
legal notice to the accused. He denied the suggestion that the postal receipt Ex. CW-1/8 does
not pertain to legal notice sent by him. He denied the suggestion that Ex. CW-1/9 is a false and
fabricated document. He also stated that at the instructions of the accused, he filled up name of
payee and date in the cheques in question. He also stated that the cheques in question were
given to him in March- April 2014. He admitted that he has not filed his income tax returns and
bank statement in the present case. In voluntary he stated that he can produce the same, if
required. He denied the suggestion that he has not filed the said documents as he has not
disclosed the transaction with the accused in the income tax returns. He denied the suggestion
that he has not given any amount to the accused and that is why no receipt was taken by him
from the accused. He denied the suggestion that he has misused the cheques in question. He
denied the suggestion that the cheques in question were given by the accused to him in the
year 2012 for arranging loan from some other person. He denied the suggestion that he has
failed to arrange the loan sought by the accused in the year 2012. He denied the suggestion
that he has not given any amount to the accused and that is why he does not remember the
date on which the accused approached him and the dates when the loan was advanced to the
accused. He denied the suggestion that he has filed the case on the basis of false and
fabricated documents. He denied the suggestion that he refused to hand over the cheques in

Surinder Kumar Arora v. Vinod Khurana            CC No. 18890/2016                 Page no. 3
 question to the accused despite the repeated demands. He denied the suggestion that he told
the accused that the cheques in question had been misplaced. He denied the suggestion that
the accused does not have any liability with respect to cheques in question.6.      Thereafter, statement of accused underSection 281Cr.P.C. read withSection 313Cr.P.C. was recorded in which all the incriminating evidence were put to him to which accused
took the same defence as was taken by him at the time of framing of notice underSection 251Cr.P.C. He admitted his signatures on the cheques in question, however, he denied having filled
in the contents except the amount therein. He denied receiving of legal notice Ex. CW-1/7. He
denied the liability towards the complainant. The accused preferred to lead defence evidence.
The accused as DW-1 deposed that he knew the complainant for last 05 years. He also stated
that the cheques in question were given by him to the accused for arranging loan either from
financial institution or any person. He also stated that when the complainant failed to arrange
loan for him, he demanded his cheques in question but the complainant did not return the same.
He denied his liability towards the complainant. He alleged that he has been falsely implicated
in the present case. During cross-examination, he denied the suggestion that he had borrowed
Rs.3,00,000/- in total from the complainant. He denied the suggestion that legal notice Ex.CW-
1/7 was received by him on 26.05.2014. He denied the suggestion that he issued the cheque in
question in discharge of his liability of Rs.3,00,000/-.7.      Thereafter, final arguments were addressed on behalf of both the parties.8.      I have considered the rival submissions of the parties and perused the entire evidence
led by the complainant as well as by the accused.9.      Before appreciating the facts of the case in detail for the purpose of decision, let relevant
position of law be discussed first:-For the offence underSection 138of the Act to be made out against the accused, the
complainant must prove the following points, that:-1. the accused issued a cheque on account maintained by him with a bank.2. the said cheque has been issued in discharge, in whole or in part, of any legal debt or
        other liability.3. the said cheque has been presented to the bank within a period of three months from the
        date of cheque or within the period of its validity.Surinder Kumar Arora v. Vinod Khurana                CC No. 18890/2016                Page no. 44. the   aforesaid     cheque,    when     presented     for       encashment,   was     returned
         unpaid/dishonoured.5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days
         from the receipt of information by him from the bank regarding the return of the cheque.6. the drawer of the cheque failed to make the payment within 15 days of the receipt of
         aforesaid legal notice of demand.10.The Actraises two presumptions in favour of the holder of the cheque i.e. complainant in
the present case; firstly, in regard to the passing of consideration as contained inSection 118(a) and secondly, a presumption that the holder of cheque receiving the same of the nature
referred to inSection 139discharged in whole or in part any debt or other liability.Section 118of the N.I Act provides : "Presumptions as to negotiable instruments: Until
the contrary is proved, the following presumptions shall be made: (a) of consideration - that
every negotiable instrument was made or drawn for consideration, and that every such
instrument, when it has been accepted, indorsed, negotiated or transferred was accepted,
indorsed, negotiated or transferred for consideration;"Section 139of the N.I Act further provides as follows: "Presumption in favour of holder - it
shall be presumed, unless the contrary is proved, that the holder of a cheque received the
cheque of the nature referred to inSection 138for the discharge, in whole or in part, of any debt
or other liability".11.      For the offence underSection 138of the Act, the presumptions underSections 118(a)and139have to be compulsory raised as soon as execution of cheque by accused is admitted
or proved by the complainant and thereafter burden is shifted to accused to prove otherwise.
These presumptions shall end only when the contrary is proved by the accused, that is, the
cheque was not issued for consideration and in discharge of any debt or liability etc. A
presumption is not in itself evidence but only makes a prima facie case for a party for whose
benefit it exists. Presumptions both underSections 118and139are rebuttable in nature. Same
was held by the Hon'ble Supreme Court of India inHiten P. Dalal v. Bratindranath Banerjee[(2001) 6 SCC 16].12.      It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC)
1518] that the accused may rebut these presumptions by leading direct evidence and in some
and exceptional cases, from the case set out by the complainant, that is, the averments in the
complaint, the case set out in the statutory notice and evidence adduced by the complainant

Surinder Kumar Arora v. Vinod Khurana                CC No. 18890/2016                   Page no. 5
 during the trial. Further, the burden may be discharged by the accused by showing
preponderance of probabilities and the onus on the accused is not as heavy as it is on the
complainant to prove his case.13.    From the aforesaid discussion, it becomes amply clear that the presumption of law,
though rebuttable, works in favour of the complainant. However, the presumption gets rebutted
if the defence raises a reasonable suspicion in the prosecution story by raising a probable
defence.14.    In the present case, the accused has admitted in the notice underSection 251Cr.P.C.
that the cheques in question bear his signatures. Reference can be made to Judgment of Apex
Court inRangappa v. Mohan[AIR 2010 SC 1898], that,
       "Once the cheque relates to the account of the accused and he accepts and admits the
signatures on the said cheque, then initial presumption as contemplated underSection 139of
the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."15.    It means that in the present case the onus is upon the accused to rebut the presumption
raised underSections 118(a)and139of the said Act and merely saying that the cheques in
question were given by him to the complainant as security is not sufficient to rebut the
presumption.16.    In my opinion that the accused has failed to rebut the presumption of legal liability. The
accused has taken the defence that the cheques in question were given to the complainant in
advance for loan which was not provided by the complainant.           He also alleged that the
complainant did not return his cheques despite repeated requests and they have been misused
by the complainant by filing the present complaint. However, the accused has not led any
cogent evidence in support of his plea. If the said version of the accused is indeed true then he
ought to have filed a complaint with police against the complainant for misusing his cheques.
However, the accused neither raised any protest nor took any step against the complainant for
misusing his cheques. The bald statement of the accused that his cheques have been misused
in the absence of cogent evidence does not create any doubt on the case of complainant.
There is no explanation as to why no notice was sent to the complainant for demanding the
cheques, if no loan was provided by the complainant. Thus, the version of the accused does
not inspire confidence of the court.Surinder Kumar Arora v. Vinod Khurana            CC No. 18890/2016                 Page no. 617.      It was argued by Counsel for the accused that the complainant, in his cross-examination,
has stated that there is no witness to the transaction between the complainant and the accused.
It was also argued by him that the complainant has failed to prove sources of funds to advance
loan of such a huge amount. It was also argued that the complainant has not placed on record
any agreement or receipt to show that the sum of Rs.3,00,000/- was advanced to the accused
and thus, all these facts create doubt on his case. I do not find merits in the submission of Ld.
Counsel for the accused. Non examination of witnesses and non filing of documents are not
fatal to the case of the complainant. For this, reliance be placed on one judgmentSanjay
Arora v. Monika Singh[2017 SCC Online Del 8897]. In that case, it was held that "para 24.
mere admission of the complainant that he was earning only Rs.12,000/- per month from small
business or his failure to file income tax returns, or his omission to produce the bank pass book
or to examine Chhotu as a witness in corroboration, are inconsequential. In order to rebut the
statutory presumption, it was the burden of the respondent to prove the facts she had pleaded
in answer to the notice underSection 251Cr.P.C.". Thus, there is no force in the submission of
Counsel for the accused.18.      In view of the above, this court is of the considered opinion that the accused has failed to
rebut the presumption in favour of complainant either on the basis of material available on
record or by adducing any defence evidence. The complainant has led cogent evidence to
prove his case. Therefore, complainant has successfully proved his case beyond reasonable
doubt.19.      As the complainant has proved his case beyond reasonable doubt, therefore, accused is
being convicted for the offence underSection 138of Negotiable Instruments Act.20.      Let the accused be heard on quantum of sentence.21.      Copy of Judgment be supplied to the convict free of cost.Digitally signedby PRIYANKAPRIYANKA   RAJPOOT
                                                              RAJPOOT    Date: 2018.11.29
                                                                         18:06:09 +0530


ANNOUNCED IN THE OPEN COURT                               (PRIYANKA RAJPOOT)
TODAY i.e. 29th NOVEMBER 2018                          METROPOLITAN MAGISTRATE
                                                      ROHINI DISTRICT COURTS/ DELHI




Surinder Kumar Arora v. Vinod Khurana               CC No. 18890/2016                       Page no. 7