Delhi District Court
Anita Gupta @ Anita Devi vs Harshi on 12 March, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE EAST DISTRICT,
KARKARDOOMA COURTS, DELHI.
Presided by: Sh. Divyam Lila
UNIQUE-ID : 02402R092992019
CNR No. : DLET02-009301-2019
CT No. : 4675/2019
PS: Gandhi Nagar
Smt. Anita Gupta @ Anita Devi,
W/o Sh. Virender Kumar
R/o H. no. 9/69, Khirchripur,
Delhi-110091. ....... Complainant
VERSUS
Smt. Harshi,
W/o Sh. Deepak,
R/o H. no. 7/544, A/B, Jwala Nagar,
Delhi-110032.
...... Accused
Complaint under section 138 of the Negotiable Instruments Act, 1881
Date of institution : 13.11.2019
Date of decision of the case : 12.03.2024
Plea of Accused : Not guilty
Final Order : Convicted
In the court of Sh. Divyam Lila, MM East district, Karkardooma courts, Delhi.
JUDGMENT
STATEMENT OF FACTS AND REASONS FOR DECISION;
1. The accused is facing trial for commission of offence punishable u/s 138 of The Negotiable Instruments Act, 1881 (in short, NI Act). Facts in brief:
2. As per complaint, the complainant states that the complainant had granted friendly loan of Rs.10,00,000/- to the accused in year 2018, in parts, as per the demand of the accused for financial help in her domestic needs. For repayment of loan, the accused had issued cheque bearing no. 944501 dated 02.09.2019 for Rs.1,00,000/-. drawn on SBI Bank, Vivek Vihar Branch, Delhi (hereinafter called 'cheque in question'). The said cheque got dishonoured vide return memo dated 03.10.2019 with reason "Funds Insufficient". After receiving the cheque return memo, the complainant sent a legal demand notice dated 09.10.2019 to the accusedby registered post advising him to pay the amount of the cheque within 15 days of the receipt of the notice. The accused persons did not pay the cheque amount for discharge of his liability even after expiry of statutory period of 15 days from the date of service of notice and hence the present case.
3. The cognizance of the offence u/s 138 NI of Act was taken by Ld. Predecessor of this court and thereafter the accused person was summoned; Ct. Case no. 4675/2019 Smt. Anita Gupta Vs. Smt. Harshi. Page no. 2 / 19 In the court of Sh. Divyam Lila, MM East district, Karkardooma courts, Delhi. thereafter the accused person put up her appearance before the court and then the notice u/s 251 Criminal Procedure Code, 1973 (in short, "Cr. P. C") was framed.
Notice:
4. Notice u/s 251 of Cr. P. C was served upon the accused. The accused did not plead guilty and claimed trial. The accused had admitted the signature, she had admitted that the cheque belonged to her, and the legal notice was not received by her. It was taken in defense that the cheque was given as security to the complainant who used to run committee, and that she had an outstanding liablity of only Rs.35,000/- towards the complainnat and cheque was misused by the complainant. Thereafter, the matter was listed for Complainant's Evidence.
Complainant's Evidence:
5. To substantiate his case, the complainant adduced her evidence by way affidavit. Complainant has examined herself as CW 1, thereafter the evidence of the complainant. The CW 1 / complainant reiterated the facts mentioned in the complaint and relied upon documents filed along the case. The witness was cross-examined on behalf of the accused. During the same, following notable points were stated, relevant parts of which are reproduced verbatim:-
Ct. Case no. 4675/2019 Smt. Anita Gupta Vs. Smt. Harshi. Page no. 3 / 19 In the court of Sh. Divyam Lila, MM East district, Karkardooma courts, Delhi.
1. "I know the accused since 2017. She used to come along with Mr. Pramod Dhanda for purpose of LIC policy. Accused used to frequently come to my house and I had also gone to her house 2-3 times. Accused was LIC Agent. I do not know her monthly income.
The house of accused which I visited was situated in Jawala Nagar, Shahdara, Delhi-32. House must be around 30-40 S. Yards. As our relationship grew, accused used to frequently demand money citing ill health of her children. I gave money to her 4 times total amounting to Rs. 10 lacs. She would assure me that she will return the same as and when she would receive loan amount from LIC. Loan amount was advanced in my house. Mr. Pramod Dhanda would always accompany the accused. Loan was given in his presence. Accused assured me that she would return the same in 6-7 months Loan was given free of interest. No written document/receiving was prepared.
Q Why did you not take receiving when such huge amount was involved?
Ans. Since we had become quite close, I did not take
receiving in good faith.
2. In 2018 I was not running any committee. I have
never run or been a part of any committee. I run a
small clothing business from my home. At the
relevant time, I was earning around Rs. 30-40,000/- in cash per month. My husband and sons are also earning. Loan amount was advanced from my savings as well as money I would receive from my family.
Ct. Case no. 4675/2019 Smt. Anita Gupta Vs. Smt. Harshi. Page no. 4 / 19 In the court of Sh. Divyam Lila, MM East district, Karkardooma courts, Delhi.
Amount was kept in my house. My husband is
getting salary of Rs. 30,000/- per month and my
children are in business. I do not know the income
of my children. I am not income tax payee. I maintain the account of our house orally. Accused also took loan from my elder son of around Rs. 2-2.5 lacs though I am not sure of the total amount. Court case regarding the same is also pending.
I demanded money from accused after expiry of around 6 months, then she gave me the cheques in question. I received the cheques in filled condition.
After the cheques got dishonoured, I talked to the accused telephonically and also went to her house. She told me that payment had stopped. It is wrong to suggest that I was running a committee and the cheques were given as security for the same. It is wrong to suggest that no loan was taken by the accused. It is wrong to suggest that I misused the cheques of accused and she has no liability towards me. It is wrong to suggest that I do not have the financial capacity to advance the loan in question. It is wrong to suggest that I am deposing falsely".
Statement of the Accused:
6. Thereafter, Complainant's evidence was closed and the accused was examined u/s 313 of Cr. PC on 09.11.2023. Accused reiterated the defence that was taken by him in his notice u/s 251 Cr.P.C. The accused stated that she did not take any loan from the complainant. The cheque was given as Ct. Case no. 4675/2019 Smt. Anita Gupta Vs. Smt. Harshi. Page no. 5 / 19 In the court of Sh. Divyam Lila, MM East district, Karkardooma courts, Delhi. security for committee to the complainant, which was run by the complainant. The cheque in question was blank signed. The address on the legal notice is correct, however, she has received the copy of legal notice, but again stated that she does not remember, if she had received the legal notice. She again stated in her defense that the cheque was given as security to the complainant who used to run committee, and that she had an outstanding liablity of only Rs.30,000/- towards all the matters filed by against her by the complainant and her family members.
7. The accused stated that she wants to lead the defense evidence, however, thereafter, the right of the accused was closed after she submitted that she does not want to lead DE on 12.02.2024. The matter was thereafter, directly listed for final arguments.
Final Arguments:
8. I have heard arguments on behalf of both the parties, gone through the judgments relied upon by them and have carefully gone through the material on record. The complainant has filed written arguments and relied upon the judgment.
9. It is submitted by the Ld. Counsel for complainant that accused is liable to be convicted as all ingredients of offence u/s 138 of NI Act are fulfilled in the instant case and accused failed to rebut the statutory presumption in Ct. Case no. 4675/2019 Smt. Anita Gupta Vs. Smt. Harshi. Page no. 6 / 19 In the court of Sh. Divyam Lila, MM East district, Karkardooma courts, Delhi. favour of the complainant. On the other hand, Ld. Defence counsel led emphasis on the defence that the entire loan has been paid and present cheque was misused, and the complainant did not have financial capacity to pay the loan amount.
Legal Discussion on the point of law:
10. It would be apposite at this stage to briefly discuss law applicable to the offence of dishonour of cheque. For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points, that:
1. The cheque was drawn by a person on an account maintained by him for payment of money.
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.
4. The aforesaid cheque,when presented for encashment, was returned unpaid/ dishonoured.
Ct. Case no. 4675/2019 Smt. Anita Gupta Vs. Smt. Harshi. Page no. 7 / 19 In the court of Sh. Divyam Lila, MM East district, Karkardooma courts, Delhi.
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.
The drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
11. In the present case, there is no dispute regarding fulfillment of conditions (1),(3),(4),(5) and (6). In his notice u/s 251 Cr.P.C, the accused stated that she had only signed the cheque and particulars were not filled by her.
12. Factum of dishonour of the cheque is not in dispute. It is also not in dispute that the cheque was presented within the statutory period. Dispatch of legal notice within the statutory time limit is also not in dispute.
13.It is the plea of the accused that the legal demand notice for cheque payment was never served upon the accused. On perusal of the record, accused has denied the acceptance of legal notice in the framing of notice and stated that she does not remember the receiving the legal notice in the statement of the accused under Section 313 Cr.P.C. However, the accused has admitted that the address on the legal notice correct. The accused has also not lead any evidence to disprove the presumption of the service under Section 27 of General Clauses Act.
Ct. Case no. 4675/2019 Smt. Anita Gupta Vs. Smt. Harshi. Page no. 8 / 19 In the court of Sh. Divyam Lila, MM East district, Karkardooma courts, Delhi.
14.The Hon'ble Supreme Court of India in C.C. Alavi Haji Vs. Palapetty Muhammed, 2007 (6) SCC 555 while discussing the true intent behind the service of legal demand notice as a precursor to the launch of prosecution held that the service of summons of the court is opportunity enough for the accused to pay the cheque amount and evade prosecution and any accused who fails to pay the amount within 15 days of the service of summons, clearly cannot protect himself/herself behind the technical demand of non- service of legal notice. The relevant extract of the decision is reproduced herein:- "It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of Act, make payment of the cheque amount and submits to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court alongwith the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the Ct. Case no. 4675/2019 Smt. Anita Gupta Vs. Smt. Harshi. Page no. 9 / 19 In the court of Sh. Divyam Lila, MM East district, Karkardooma courts, Delhi. G.C.Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso, would defeat the very object of the legislation''.
15.Thus, in view of the above said law, the fact that the address that has been mentioned in the legal notice and the addresses given by the accused is same, the mandatory statutory legal notice is deemed to have been served on the accused in the present case. Institution of the complaint within limitation is also not in dispute. In any which case, the accused has also failed to lead any evidence to rebut the presumption of service under section 27 of general clauses act.
16. Thus, the basic and significant question for determination is: Whether the accused had issued the cheque in question in discharge of legally enforceable debt or liability?
17. It is material to discuss that a negotiable instrument including a cheque carries following presumptions in terms of Section 118 (a) and Section 139 of the NI Act:Section 118 of the NI Act provides : "Presumptions as to negotiable instruments: Un- til the contrary is proved, the following presumptions shall be made: of consideration that every negotiable in- strument was made or drawn for considera- tion, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred Ct. Case no. 4675/2019 Smt. Anita Gupta Vs. Smt. Harshi. Page no. 10 / 19 In the court of Sh. Divyam Lila, MM East district, Karkardooma courts, Delhi. was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of 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 in Section 138 for the discharge, in whole or in part, of any debt or other liability." Thus, the combined effect of Section 118(a) and Section 139 of NI Act raises a presumption in favour of the holder of the cheque that he has received the same for discharge, in whole or in part of any debt or other liability. However, the said presumptions are rebuttable in nature.
18. In Rangappa V. Sri Mohan, (2010) 11 SCC 441, a three-judge bench of Apex Court observed that:- "Section 139 of the NI Act is stated to be an example of a reverse onus clause which is in tune with the legislative intent of improving the credibility of negotiable instruments. The Hon'ble Supreme Court further observed that the offence under Section 138 of the NI Act is at best a regulatory offence and largely falls in the arena of a civil wrong and therefore the test of proportionality ought to guide the interpretation of the reverse onus clause. The accused is not expected to discharge an unduly high standard of proof and he/she is only required to raise a probable defence or creating doubt about the existence of a legally enforceable debt or liability for thwarting the prosecution. The standard of Ct. Case no. 4675/2019 Smt. Anita Gupta Vs. Smt. Harshi. Page no. 11 / 19 In the court of Sh. Divyam Lila, MM East district, Karkardooma courts, Delhi. proof for doing so would be on the basis of "preponderance of probabilities".
19. Hon'ble Supreme Court in M/s Kumar Exports Vs. M/s Sharma Carpets AIR 2009 SC 1518 held that:"The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the Complainant in a criminal trial. 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 Ct. Case no. 4675/2019 Smt. Anita Gupta Vs. Smt. Harshi. Page no. 12 / 19 In the court of Sh. Divyam Lila, MM East district, Karkardooma courts, Delhi. 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. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Section 118 and 139 of the Act."
20. The court has to now consider whether the accused has been successful in discharging the burden of proof.
21. Accused has admitted the fact that the cheque in the present case bears his signature. The accused has stated in the defese under notice under Section 251 Cr.P.C that the particulars on the cheque except the date was filled by her, undated cheques were given as security. In the cross-examination of CW-1, no suggestion that the cheque was blank and particulars were not filled was given by the accused. CW-1 has catagorically submitted that the cheque was given in filled condition. The plea of accused that the particulars of the cheque in question were not filled by her is of no help. In Ravi Chopra vs State & Anr, Hon'ble High Court of Delhi held: "Section Ct. Case no. 4675/2019 Smt. Anita Gupta Vs. Smt. Harshi. Page no. 13 / 19 In the court of Sh. Divyam Lila, MM East district, Karkardooma courts, Delhi. 20 NI Act talks of "inchoate stamped instruments" and states that if a person signs and delivers a paper stamped in accordance with the law and "either wholly blank or have written thereon an incomplete negotiable instrument" such person thereby gives prima facie authority to the holder thereof "to make or complete as the case may be upon it, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp." "A collective reading of the above provisions shows that even under the scheme of the NI Act it is possible for the drawer of a cheque to give a blank cheque signed by him to the payee and consent either impliedly or expressly to the said cheque being filled up at a subsequent point in time and presented for payment by the drawee. There is no provision in the NI Act which either defines the difference in the handwriting or the ink pertaining to the material particulars filled up in comparison with the signature thereon as constituting a 'material alteration' for the pur- poses of Section 87 NI Act. What however is essential is that the cheque must have been signed by the drawer."
22. Further, in Bir singh Vs. Mukesh Kumar, (2019) 4 SCC 197 it was held that:-"It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If Ct. Case no. 4675/2019 Smt. Anita Gupta Vs. Smt. Harshi. Page no. 14 / 19 In the court of Sh. Divyam Lila, MM East district, Karkardooma courts, Delhi. the cheque is otherwise valid, the penal provisions of Section 138 would be attracted."
23. In the backdrop of legal position as enunciated above, it is to be examined by this Court that whether the accused on a scale of preponderance of probabilities has been able to rebut the presumption which has been raised against him and in favour of the complainant, or has been able to demolish the case of the complainant to such extent so as to shift the onus placed upon the accused again on the complainant. As held by Hon'ble Supreme Court of India in case of Kumar Exports vs Sharma Carpets (2009) 2 SCC 513, the accused can either prove the non−existence of the consideration and debt by direct evidence or by bringing on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt either did not exist or their non−existence was so probable that a prudent man may act upon the plea that they did not exist. If the Court comes to the conclusion that the accused has not been able to rebut the presumption raised against him by failing to bring on record direct evidence or by even failing to sufficiently perforate the case of the complainant, the complainant is entitled to a decision in his favour.
24. Now, the question before the court is whether the accused was able to successfully rebut the presumptions raised against her by direct Ct. Case no. 4675/2019 Smt. Anita Gupta Vs. Smt. Harshi. Page no. 15 / 19 In the court of Sh. Divyam Lila, MM East district, Karkardooma courts, Delhi. evidence or by bringing on record such facts and circumstances; for the same the evidence on record has to be examined.
25.The accused has taken stand in the defence at the stage of framing of notice and statement of accused u/s 313 CrPC that the said cheque was given as security for the committee to the complainant. That she has liability of only Rs.30,000/- or Rs.35,000/-.
26. It is the two pronged defense of the accused, firstly, that no loan was taken by the accused and cheque was given as security for committee to the complainant. And secondly, that the complainant does not have fianancial capacity to give the loan.
27. With respect to the first defense, the accused has failed to lead defense evidence, step into the witness box and bring forth the evidence of part payment of the same. The accused also could not prove that the cheque was given to the complainant in view of the certain committee run by her. The accused also failed to step into the witness box or state in the statement of the accused with respect to the circumstances which required her to give the cheque in filled condition to the complainant, the amount of liability that arose and the nature of the transaction. No evidence or witness was produced by the accused to support her contention. Further, the complainant has deposed in her cross-examination that the loan was given in the present of Mr. Pramod Dhanda, the same was also not Ct. Case no. 4675/2019 Smt. Anita Gupta Vs. Smt. Harshi. Page no. 16 / 19 In the court of Sh. Divyam Lila, MM East district, Karkardooma courts, Delhi. rebutted and refuted, he was also not called as witness by the accused to support her contentions. No other witnesses were called prove the committee was run by the complainant. Hence, the first defense does not appeal the court with respect to the sufficiency of probable defense in the preponderance of probability.
28. Secondly, the accused as questioned the capacity to issue a friendly loan of Rs.10 lacs to the accused. The accused has questioned the CW-1 in her cross-examination with respect to the monthly earning of CW-1, her husband and the sons of CW-1. No other cogent questions to determine the financial capacity of the complainant to issue the loan was put by the Ld. counsel for the accused to the complainant/CW-1. The accused has failed to question the complainant with respect to the source of the funds, number of cash transaction culminating into the loan amount, saving of money with the complainant, cash funds with the complainant at the relevant time, financial obligation of the complainant and similar questions. The material on the cross-examination is not sufficient to consider the same as questioning the financial capacity of the complainant. The counsel for the accused has filed and relied upon by the judgment passed by Hon'ble Supreme Court of India on 09.04.2019 in case of "Basalingappa v. Mudibasappa". On perusal of the factual matrix and its appreciations in the judgment, it show cases that the defense in Ct. Case no. 4675/2019 Smt. Anita Gupta Vs. Smt. Harshi. Page no. 17 / 19 In the court of Sh. Divyam Lila, MM East district, Karkardooma courts, Delhi. that case at cross-examined the complainant at length touching upon the material aspects to ascertain the financial capacity alongwith material contradition brought on record to consider the same as queshtioning the fianancial capacity of the complainant, whereas in the present case, the defense has skimmed and only put question with respect to the monthly income of complainant and her family members, without questioning the source of fund, manner of disburssal of funds, saving and funds at home, financial obligation and other financial transactions. Even the income asked by the accused does not specified the month in which the income was received. Therefore, even the second defense does not appeal the court as being the probable cause in preponderance of probabilities to accord the favour to the accused.
29.Therefore, the accused has utterly failed to rebut the presumptions against her on all counts of preponderance of probabilities, the defence of the accused appears to be a mere eyewash and sham, without any merit or substance.
30. In the light of above discussions, the accused has failed to rebut the presumption against him in the section 139 N I act, the accused had failed to prove any evidence in her favour to rebut such presumption, the presumption could not be rebutted in the cross-examination of CW1; further, in view of above mentioned judgments and citations, and the law Ct. Case no. 4675/2019 Smt. Anita Gupta Vs. Smt. Harshi. Page no. 18 / 19 In the court of Sh. Divyam Lila, MM East district, Karkardooma courts, Delhi. laid down clearly and failure of rebuttal by the accused; I have no hesitation in holding that the complainant has successfully been able to prove that the accused is liable to be declared as guilty for dishonour of cheque in question. The accused is thus declared guilty for cheque Digitally signed by dishonoured. DIVYAM DIVYAM LILA Announced in the open Court today i.e 12-03-2024 LILA Date:
2024.03.13 15:24:04 +0530 (DIVYAM LILA) MM (Municipal) East District Karkardooma Court/Delhi 12-03-2024 Copy of the judgment be provided to the parties as per rules, and copy of the judgment be also uploaded in the CIS server. Ct. Case no. 4675/2019 Smt. Anita Gupta Vs. Smt. Harshi. Page no. 19 / 19