Delhi High Court: Subramonium Prasad, J., addressed a matter with regard to offences under Section 138 of Negotiable Instruments Act, 1881.
Instant revision petition was filed against the decision passed by the Additional Sessions Judge dismissing the appeal filed by the petitioner and affirming the Judgment of Metropolitan Magistrate convicting petitioner for offences under Section 138 of Negotiable instruments Act.
Respondent 2 instituted a complaint against the petitioner for an offence punishable under Section 138 NI Act.
Petitioner submitted that he was to procure material for assembling the computers for supply to the complainant and the cheque was given as a security for the loan which was to be arranged by the complainant from other parties.
Analysis, Law and Decision
Bench noted that the acknowledged receipt stated that the petitioner had taken a loan of Rs 15,00,000 and in lieu of the loan he issued a cheque. The said receipt was signed by the petitioner.
Court for the above-stated decided that the fact that there was no witnesses and the fact that it does not state as to from whom the loan was being taken doesn’t persuade the Court to disbelieve the document.
The said cheque was returned with endorsement “Insufficient Funds”.
Receipt along with cheque made out a case under Section 138 NI Act. Presumption under Section 139 of the N.I. Act, therefore, arises in favour of the holder of the cheque i.e. the complainant and unless the contrary is proved, that the complainant has received the cheque for discharge, in whole or in part, of any debt or other liability.
Bench stated that the petitioner couldn’t rebut the presumption under Section 139 NI Act. He didn’t deny his signatures on the cheque and did not deny the fact that the receipt was given by him which acknowledged a sum of Rs 15,00,000 taken as a loan.
Further, it was also added that the mere ipse dixit of the petitioner and the statement in defence under Section 313 CrPC without any material does not rebut the presumption cast on the petitioner under Section 139 of the N.I. Act.
The fact that the loan was given in violation of Section 269 SS of IT Act does not mean that the Court cannot look into the documents at all.
Offence Section 269 SS IT Act at best makes an offence under Section 271 D of the IT Act but it does not mean that the loan of Rs.15,00,000/- has not been given by the complainant to the petitioner herein.
High Court agreed with the Courts below that the initial burden cast against the petitioner had not been discharged.
In view of the above revision, the petition was dismissed. [Barun Kumar v. State of NCT of Delhi, 2021 SCC OnLine Del 3498, decided 25-06-2021]
Advocates before the Court:
For the Petitioner: Mr. Dheeraj Malhotra and Mr.Gaurav Gupta, Advocates
For the Respondents: Mr Hirein Sharma, APP for the State Mr. Shakeel Sarwar Wani and Mr. Himanshu Garg for respondents No.2 to 4
