TaxTMI 
TaxTMI 
2024 (9) TMI 453
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....ent and upon request of the latter, extended financial help in the sum of Rs. 14 lacs on a number of occasions between 29.09.2011 and 11.01.2012. Petitioner was assured that the said amount will be repaid by March, 2012. In discharge of his liability, Respondent issued a cheque bearing No. 546144 for a sum of Rs. 8 lacs, dated 05.03.2012 drawn on Canara Bank, Najafgarh, New Delhi, which on presentation was dishonoured and the reason in the dishonour memo was 'exceeds arrangement'. 3. It is the case of the Petitioner that when the Respondent was informed of the dishonour of the cheque, he apologized to the Petitioner and issued a fresh cheque bearing No.550403 dated 03.04.2012 for a sum of Rs. 8 lacs drawn on Canara Bank, Najafgarh, New Delhi, but the said cheque was also dishonoured on presentation for the same reason 'exceeds arrangement'. Constrained by this, Petitioner sent a legal notice to the Respondent on 17.04.2012 but no payment was made within the prescribed period and Petitioner filed a criminal complaint under Sections 138-142 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act'). 4. Pre-summoning evidence was led by the Petitioner by examining him....
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....eque of Rs. 8 lacs in his favour. However, the Bank Manager informed him that the cheque was misplaced and in this background, a second cheque for Rs. 8 lacs was issued by the Respondent. Receipt of legal notice sent by the Petitioner calling upon the Respondent to pay the amount was admitted by the Respondent. On failing to get back the payment from the Respondent, Petitioner filed a complaint under Sections 138-142 of NI Act. 8. Petitioner examined himself and the Branch Manager of the concerned Bank while Respondent only gave a Statement under Section 313 Cr.P.C. and did not lead defence evidence. Trial Court convicted the Respondent for the offence punishable under Section 138 NI Act vide judgment dated 15.10.2015 and vide order dated 05.11.2015, sentenced him to simple imprisonment for a period of four months. Respondent was also directed to pay a compensation of Rs.10 lacs to the Petitioner within 30 days and in case of default, to further undergo SI for two months. Trial Court observed that once the Respondent admitted that he had issued the cheque and had signed on the same, a presumption would arise in favour of the Petitioner as a holder of the cheque under Sections 118 ....
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.... the loan advanced to the Respondent as Harish was known to him and therefore, Appellate Court erred in concluding that Petitioner was unable to prove that a sum of Rs. 14 lacs was advanced as loan to the Respondent. 11. It was further contended that Respondent had filed a false and frivolous complaint against the Petitioner under Section 138 read with Section 142 NI Act alleging that he had given a sum of Rs. 18 lacs to the Petitioner on 24.11.2011 for investing in a flat in Kargil Apartments, Dwarka. Petitioner had again approached him with a proposal to invest some money in flats in Lok Nayak Puram and Respondent agreed and issued a cheque of Rs. 8 lacs for investment. In March, 2012, Petitioner informed the Respondent that the deal of flats in Kargil Apartments was finalized and issued a cheque of Rs. 18 lacs, bearing No.100479 dated 25.03.2012 drawn on Oriental Bank of Commerce, Village and Post Office Dichaon Kalan, Najafgarh, New Delhi, in favour of the Respondent to return the money. By this act, it was alleged that Petitioner won the trust of the Respondent and in good faith, the cheque of Rs. 8 lacs was issued by the Respondent for investment in flats in Lok Nayak Puram.....
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....spondent were sufficient to prove the case of the Petitioner that he had advanced Rs. 14 lacs and Respondent had issued a cheque in discharge of legal liability towards the Petitioner. 14. Lastly, it was argued that Appellate Court wrongly held that the bank statement of the Petitioner did not show a single transaction of Rs. 10,12,000/- and Petitioner had not stated in his complaint or during the pre-summoning evidence that he had transferred the amount in the account of the Respondent. This finding is against the categorical stand of the Petitioner in his complaint that he had given loan to the Respondent on different occasions from 29.09.2011 to 11.01.2012. Appellate Court wrongly held that the presumption was rebutted by a mere denial by the Respondent of having availed the loan of Rs. 14 lacs, as the presumption in law under Section 139 NI Act predicated on the admission of an accused that the cheque was issued and signed by him, cannot be rebutted by a mere denial. Court has also erred in holding that Petitioner admitted issuance of cheque of Rs. 18 lacs in favour of the Respondent as there is no such admission on record. Reliance was placed by learned counsel on the judgmen....
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.... establish that loan was advanced but was unsuccessful as neither the ITR nor the balance sheets reflected that payments were made in favour of the Respondent. The stand of the Petitioner that a sum of Rs.7 lacs was paid to the Respondent indirectly through Harish also turned out to be incorrect and Appellate Court rightly noted that no evidence was led to show that Harish had received the amount on behalf of the Respondent. The complaint filed by the Petitioner is false and fabricated with an intent to maliciously prosecute the Respondent and Appellate Court rightly acquitted the Respondent and thus the judgment warrants no interference. 17. Heard learned counsels for the Petitioner and the Respondent and examined their rival submissions. 18. Indisputably, Respondent has been acquitted by the learned Additional Sessions Judge in appeal filed by him against his conviction by the Trial Court and therefore, the first issue that needs consideration is the scope and ambit of interference by an Appellate Court in a judgment acquitting the accused. Appellate Court has, no doubt, wide powers to re-appreciate the evidence in an appeal against acquittal and come to a different conclusion,....
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....with the evidence was patently illegal; (v) The Trial Court's judgment was manifestly unjust and unreasonable; (vi) The Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. (vii) This list is intended to be illustrative, not exhaustive. 2. The appellate court must always give proper weight and consideration to the findings of the Trial Court. 3. If two reasonable views can be reached-one that leads to acquittal, the other to conviction-the High Courts/appellate courts must rule in favour of the accused. 71. Had the well-settled principles been followed by the High Court, the accused would have been set free long ago. Though the appellate court's power is wide and extensive, it must be used with great care and caution." 19. In Bannareddy and Others v. State of Karnataka and Others, 2018 SCC OnLine SC 289, the Supreme Court observed as under:- "10. Before we proceed further to peruse the finding of the High Court, it is relevant to discuss the power and jurisdiction of the High Court while interfering in an appeal against acquittal. It is well settled....
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....this Court in Niraj v. Ramesh Pratap Singh @ Raju Singh, 2012 SCC OnLine Del 3813, which are extracted hereunder for ready reference:- "6. It is also well settled that the Appellate court should reverse an acquittal only for very substantial and compelling reasons. In the event, two views are possible on the evidence adduced before the Trial Court and the view taken by the Trial Court is a plausible view, the Appellate Court should not interfere and substitute its own view against the plausible view taken by the Trial Court. In fact, the Supreme Court in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 while referring to previous cases laid down the following general principles regarding the powers of appellate court while dealing an appeal against an order of acquittal:- "42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or conditi....
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....Appellate Court in a judgment acquitting the accused has been crystallized, I may now proceed to examine the impugned judgment passed by the learned ASJ acquitting the Respondent, basis the evidence on record, both oral and documentary and rival arguments of the parties. 24. Before proceeding, it would be important to refer to Section 138 of NI Act, which is extracted hereunder for ready reference:- "Section 138. Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may exten....
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....e notice." 26. In K.Bhaskaran v. Sankaran Vaidhyan Balan and Another, (1999) 7 SCC 510, once again the constituent elements of the offence under Section 138 of NI Act were brought forth as follows: "14. The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice." 27. In Basalingappa v. Mudibasappa, (2019) 5 SCC 418, the Supreme Court was examining the legal principles regarding nature of presumption to be drawn under Section 139 NI Act and the manner in which it can be rebutted by an accused. Referring to and relying on earlier judgments of the Supreme Court, in Basalingappa (supra), the Supreme Court summarized the principles and relevant passages are as under:- "13. This Court in Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal [Bharat Barrel ....
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....hich the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist." 14. S.B. Sinha, J. in M.S. Narayana Menon v. State of Kerala [M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39 : (2006) 3 SCC (Cri) 30] had considered Sections 118 (a), 138 and 139 of the Act, 1881. It was held that presumptions both under Sections 118 (a) and 139 are rebuttable in nature. Explaining the expressions "may presume" and "shall presume" referring to an earlier judgment, the following was held in para 28: (SCC p. 49) "28. What would be the effect of the expressions "may presume", "shall presume" and "conclusive proof" has been considered by this Court in Union of India v. Pramod Gupta [Union of India v. Pramod Gupta, (2005) 12 SCC 1], in the following terms: (SCC pp. 30-31, para 52) '52. ... It is true that the legislature used two different phraseologies "shall be presumed" and "may be presumed" in Section 42 of the Punjab Land Revenue Act and furthermore although provided for the mode and manner of rebuttal of such presumption as regards th....
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.... which he relies." 17. In Krishna Janardhan Bhat v. Dattatraya G. Hegde [Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54 : (2008) 2 SCC (Cri) 166] , this Court held that an accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. The following was laid down in para 32: (SCC p. 62) "32. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different." 18. This Court in Krishna Janardhan Bhat case [Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54 : (2008) 2 SCC (Cri) 166] again reiterated that whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities". In para 34, the following was laid down: (SCC p. 63) ....
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....ion is over. 20. ... The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist." 20. A three-Judge Bench of this Court in Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (....
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....f the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant." 22. Elaborating further, this Court in Rangappa case [Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184] held that Section 139 of the Act is an example of a reverse onus and the test of proportionality should guide the construction and interpretation of reverse onus clauses on the defendant-accused and the defendant-accused cannot be expected to discharge an unduly high standard of proof. In paras 27 and 28, the following was laid down: (Rangappa case [Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184] , SCC pp. 453-54) "27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotia....
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....y reference to the circumstances upon which they rely. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come in the witness box to support his defence." 28. Dealing with and analysing the effect of presumption and shifting of onus of proof, the Supreme Court in Rajesh Jain v. Ajay Singh, (2023) 10 SCC 148, held as follows: "33. The NI Act provides for two presumptions : Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that "unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability". It will be seen that the "presumed fact" directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138. 34. Section 139 of the NI Act, which takes the form of a "shall presume" clause is illustrative of a....
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.... rule of law and the case is in the Jury's hands free from any rule'." 39. The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non-existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of "preponderance of probabilities", similar to a defendant in a civil proceeding. [Rangappa v. Sri Mohan]. 40. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words "until the contrary is proved" occurring in Section 139 do not mean that the accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa v. Mudibasappa; see also Kumar Exports v. Shar....
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....erefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption "disappears" and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa v. Mudibasappa; see also, Rangappa v. Sri Mohan]" 29. In Rangappa v. Sri Mohan, (2010) 11 SCC 441, the Supreme Court ruled on two important aspects: (a) the presumption mandated by Section 139 does indeed include the existence of a legally enforceable debt or liability but this is a rebuttable presumption and the accused can raise a defence contesting the debt or liability a....
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.... to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118 (a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the de....
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....ubt that there is an initial presumption which favours the complainant. 27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard or proof. 28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebu....
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....n" and it never shifts, the latter is called the "evidential burden" and it shifts from one side to the other. [See Kundan Lal Rallaram v. Custodian (Evacuee Property) [Kundan Lal Rallaram v. Custodian (Evacuee Property), 1961 SCC OnLine SC 10 : AIR 1961 SC 1316] .] 29. The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party's case. If, at the conclusion of the trial a party has failed to establish these to the appropriate standards, he would lose to stand. The incidence of the burden is usually clear from the pleadings and usually, it is incumbent on the plaintiff or complainant to prove what he pleaded or contends. On the other hand, the evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; the burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be is adduced by either side (see Halsbury's Laws of England, 4th Edn. para 13). While the former, the legal burden arising on the pleadings is mentioned in Section 101 of t....
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....nd option is to prove the non-existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused's case may be even fifty-one to forty-nine and arising out of the entire circumstances of the case, which includes : the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his Section 313CrPC statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was "no debt/liability". [Kumar Exports v. Sharma Carpets [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 : (2009) 1 SCC (Civ) 629 : (2009) 1 SCC (Cri) 823] ] 42. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e. oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact." 31. From the aforesaid judgments, it is as clear as day....
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.... to trigger a presumption under Section 139 of the NI Act, 1881, even if there is no admission to the effect of execution of entire contents in the cheque. xxx xxx xxx 24. Through this legal fiction adopted by the legislature vide Amendment Act of 1988 to the NI Act, 1881 it has barred the drawer of a cheque, which was dishonoured, to take a defence that at the time of issuance of the cheque in question he or she had no reason to believe that the same will be dishonoured upon being presented by the holder of such a cheque, especially and specifically for the reasons underlined in Section 138 of the NI Act, 1881. 25. A comprehensive reference to the Sections 118, 139 and 140 of the NI Act, 1881 gives birth to a deemed fiction which was also articulated by this Court in K.N. Beena v. Muniyappan as follows: "Under section 118, unless the contrary was proved, it is to be presumed that the negotiable instrument (including a cheque) had been made or drawn for consideration. Under section 139 the court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. Thus, in complaints und....
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....nted in the bank by the Respondent, relating to Kargil Apartments. Petitioner was unable to dent this defence and his own witness CW-2 the Branch Manager of the concerned Bank at one stage admitted that the second cheque was issued by the Respondent as a replacement for the earlier cheque, which had been misplaced by the Bank. 34. Appellate Court noted that the alleged loan was stated to be advanced in several tranches between 29.09.2011 and 11.01.2012 i.e. Rs. 10,12,000/- through demand draft/cheque and Rs.3,87,000/- through cash, but neither the alleged cheque/DD nor any cash receipt were brought on record. Significantly, neither in the legal notice dated 17.04.2012 sent by the Petitioner nor in the complaint before the learned MM, there was a whisper of the mode of advancing the loan of Rs. 14 lacs. Even in the evidence filed by way of affidavit at the pre-summoning stage, the details of the mode of the payment and the specific dates of advancing the loans are conspicuously missing. Admittedly and strangely, Petitioner never filed a suit for recovery of the alleged loan amount. 35. Noticeably, there is stark contradiction in the stand of the Petitioner during the cross-examina....
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....came to be issued. It was his case that the second cheque was issued as the first cheque of Rs. 8 lacs was taken away by the Respondent from his bank by impersonating as the Petitioner and thereafter, before the Village Panchayat, Respondent admitted his mistake and issued the second cheque in which details were filled by the Petitioner. This stand was found to be unbelievable by the Appellate Court on multiple grounds: (a) this case was set up for the first time in cross-examination and there was no mention of this either in the complaint or even during the pre or post summoning evidence; (b) allegation of impersonation is a serious matter and it was imperative for the Petitioner to have so stated in the complaint and led evidence for the Respondent to rebut; and (c) CW-2, the Branch Manager of the concerned Bank made false and contradictory depositions, which dents this allegation. In his examination-in-chief, CW-2 stated that it was the Respondent who had taken away the cheque of Rs. 8 lacs and gave another cheque before the Panchayat which was duly endorsed on the back by him. However, in his cross-examination, he admitted that the fact of the alleged theft of the cheque or apo....
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....y shift by presumptions of law or fact. In Kundan Lal case [Kundan Lal Rallaram v. Custodian (Evacuee Property), 1961 SCC OnLine SC 10 : AIR 1961 SC 1316] when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non-existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Sections 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well." 39. It will be relevant and useful to once again refer to the recent judgment of the Supreme Court in Dattatraya (supra), where a similar situation arose for consideration and the Supreme Court held as follows:- "26. Furthermore, on the aspect of adducing evidence for rebuttal of the aforesaid statutory presumption, it is pertinent to cumulatively read the decisions of this Court in Rangappa (supra) and Rajesh Jain (supra) which would go on to clarify that accused can undoubtedly place reliance on the materials adduced by the complainant, which would include not only the compl....
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....istence of a legally recoverable debt as the very issuance of cheque is dubious based on the fallacies and contradictions in the evidence adduced by the parties. Furthermore, the fact that the Respondent had inscribed his signature on the agreement drawn on a white paper and not on a stamp paper as presented by the Appellant, creates another set of doubt in the case. Since the accused has been able to cast a shadow of doubt on the case presented by the Appellant, he has therefore successfully rebutted the presumption stipulated by Section 139 of the NI Act, 1881. 30. Moreover, affirming the findings of the Trial Court, the High Court observed that while the signature of the Respondent on the cheque drawn by him as well as on the agreement between the parties herein stands admitted, in case where the concern of financial capacity of the creditor is raised on behalf of an accused, the same is to be discharged by the complainant through leading of cogent evidence." 40. This judgment will be incomplete without referring to a judgment of the Co-ordinate Bench of this Court in Vipul Kumar Gupta v. Vipin Gupta, 2012 SCC OnLine Del 4384, relevant paragraph of which is as follows:- "9.....