Delhi District Court
Cc No 225/1/06 Nand Kishore Through Lr ... vs Sita Rani Page 1 Of 10 on 20 August, 2014
IN THE COURT OF SHRI SUSHIL ANUJ TYAGI,
METROPOLITAN MAGISTRATE: ROHINI COURTS, DELHI
CC No. : 225/1/06
Unique ID No. : 02404R
Nand Kishore (through his LR wife)
Aneeta Mehra
R/o B-66, Sector 1, Avantika
Rohini, Delhi. .........Complainant
Vs.
Smt. Sita Rani
W/o Sh. Ashok Kumar Singhal
R/o House no. B-54, Avantika
Sector 1, Rohini, Delhi ..........Accused
Date of institution of case : 18.10.2006
Date of reserving the judgment : 12.08.2014
Date of pronouncement of judgment : 20.08.2014
JUDGMENT
1. S. No. of the Case: 225/1/06 2. Date of Commission of Offence: After May 2006 3. Date of institution of the case: 18.10.2006 4. Name of the complainant: Nand Kishore through wife Aneeta Mehra 5. Name of the accused: Sita Rani 6. Offence complained or proved: S.138 N. I. Act, 1881 7. Plea of Accused : "Not Guilty" 8. Final Order: Acquitted 9. Date of Final Order: 20.08.2014 CC no 225/1/06 Nand Kishore through LR wife Aneeta Mehra vs Sita Rani Page 1 of 10 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. The present complaint under section 138 of Negotiable Instruments Act,1881 (hereinafter referred to as "NI Act") is filed by the complainant Nand Kishore (dead) through his wife Aneeta Mehra against the accused Sita Rani.
2. Succinctly, the facts which has led to the culmination of the present complaint are that in May 2006 accused and her husband purchased a property bearing no. B-54 Avantika, Sector 1, Rohini, Delhi. The complainant had sought a friendly loan of Rs. 3,33,000/- for the purpose of improvement and renovation of the above said house. The husband of accused was well known to the complainant, therefore, the complainant advanced a sum of Rs. 3,33,000/- to the accused. At the time of giving the loan, the accused Smt. Sita Rani issued two cheques bearing no. 964142 and 964143 both dated 01.06.2006, drawn on Syndicate Bank, C-31, Centre, Janakpuri, New Delhi for a sum of Rs. 1,70,000/- and Rs. 1,63,000/- respectively towards discharge of his liability. The said cheques were not honoured and were returned back dis-honoured by the bankers of the accused with the remarks "Insufficiency of Funds" vide returning memo dated 01.09.2006. Complainant called upon the accused through his counsel vide legal notice dated 08.09.2006 to make the payment of the aforesaid cheques. The said notice was sent to the accused through registered AD as well as UPC Post. Despite service the accused did not return the cheque amount to the complainant and the present complaint was filed against the accused by the complainant.
3. After being satisfied that prima facie ingredients of Section 138 NI Act are made out, cognizance was taken and accused was summoned under section 204 CrPC whereupon the accused appeared and the notice under section 251 CrPC was served on the accused to which he pleaded not guilty and claimed trial. The complainant Nand CC no 225/1/06 Nand Kishore through LR wife Aneeta Mehra vs Sita Rani Page 2 of 10 Kishore died during the pendency of trial of the present case and on the application of the wife Aneeta Mehra, she was substituted in place of the complainant.
4. In Complainant's evidence, the complainant Aneeta Mehra (CW 1) filed post summoning affidavit in evidence as Ex PW1 and relied on documents:
Ex CW 1/A & B -Impugned cheques
Ex CW1/C -Returning memos
Ex CW1/D -Debit Advice
Ex. CW 1/E - Legal notice
Ex. CW 1/F(colly) & G -Postal receipts and AD card
Mark CW 1/1 -Letter of reply by accused
Ex CW 1/H -Complaint
5. The complainant evidence was closed and the accused was examined under section 313 r/w 281 Cr.P.C on 26.10.2013 where all the incriminating evidence was put to the accused. The accused stated that she had not taken loan. She know Nand Kishore (now deceased) and his wife Anita as they had purchased one property from Pawan Kumar (brother of complainant). She had not taken any loan from Anita or her husband. She had given her signed cheques to her husband. She does not know how they got into the possession of the complainant. These cheques were given by her husband to the complainant as loan. The property were purchased by them from the brother of Nand Kishore. Nand Kishore and his family used to reside on the first floor of the property. Later, they came to know that Nand Kishore is not a good person and they demanded the cheques back from the complainant which were not returned. One note was also signed CC no 225/1/06 Nand Kishore through LR wife Aneeta Mehra vs Sita Rani Page 3 of 10 by Nand Kishore in this regard.
6. The accused wished to lead defence evidence and accused has examined Ashok Kumar Singhal as DW-1.
DW-1 Ashok Kumar Singhal deposed that on 29.05.2006 his mother Mrs. Godwari Devi purchased property no. B-54, Avantika , Rohini, Sector 1, from Pawan Kumar, brother of Late Sh. Nand Kishore. At that time complainant Nand Kishore was residing at first floor of that property. He approached for loan for purchase of some other property and offered to hand over the papers of the said property for the loan to be provided to Sh. Nand Kishore. The cheques under reference were issued by his wife Smt. Sita Rani and the loan was given by his mother Smt. Godawari Devi with the condition that the agreement will be executed and the said cheques of Rs. 3,33,000/- will be presented only after execution of the agreement. A receipt was issued by Sh. Nand Kishore which is on record of the file. The cheques were given on 30.05.2006 and the cheques were dated 01.06.2006. After handing over the cheques it came to his notice that there is an FIR against Sh. Nand Kishore and other family members for cheating etc. and therefore he requested Sh. Nand Kishore to return the cheques and no agreement will be executed. Sh. Nand Kishore did not return the cheques on one pretext or the another. Sh. Nand Kishore even failed to pay the electricity bills of Rs. 83,000/- of the property which were paid by his mother after purchase of the property. The pay orders of Rs. 83,000/- were got issued from Syndicate Bank , Janak Puri where he was working at that point of time. The pay orders were deposited in NDPL to clear the pending bills. That he witnessed the sale deed executed by Sh. Pawan Kumar on 29.05.2006 in favour of his mother Smt. Godawari Devi for the property in which they were residing. Sh. Nand Kishore also witnessed the said sale deed alongwith him on 29.05.2006. Smt. Anita Mehra and Sh. Nand Kishore were not known to his wife Smt. Sita Rani and him CC no 225/1/06 Nand Kishore through LR wife Aneeta Mehra vs Sita Rani Page 4 of 10 before transacting the sale deed in favour of his mother. A legal notice was received on behalf of Sh. Nand Kishore wherein the words legal liability were used and it was not stated how the said cheques were issued by his wife Smt. Sita Rani. There was no debt from Smt. Sita Rani towards Sh. Nand Kishore. Sh. Nand Kishore was not having any regular income and was not filing income tax returns which is clear from the facts that even electricity bills were not paid by him. In reply to the legal notice it was stated by his counsel that the meaning of legal liability may be explained but it was not stated that there was any debt/loan from Sh. Nand Kishore to Smt. Sita Rani. His wife Smt. Sita Rani is housewife and is not knowing anyone either Sh. Nand Kishore or Smt. Anita Mehra and the transactions were done for my mother by me.
7. I have heard the rival contentions from both sides and have perused the judicial record.
8. The question in the present case revolves around as to whether the impugned cheque was issued towards the discharge in whole or in part of legally enforceable liability or debt as envisaged under section 138 NI Act. Thus it becomes apposite at this juncture to reproduce section 138 NI Act:
"138. Dishonour of cheque for insufficiency, etc., of funds in the accounts 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 provisions of this Act, be CC no 225/1/06 Nand Kishore through LR wife Aneeta Mehra vs Sita Rani Page 5 of 10 punished with imprisonment for "a term which may extend to two year", or with fine which may extend to twice the amount of the cheque, or with both:.......
Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability."
9. It is a sine qua non for constitution of the offence u/s 138 NI Act that the cheque must have been issued for the discharge in whole or in part of legally enforceable liability or debt. Section 138 NI Act has to be read with the legal presumptions u/s 139 and 118 NI Act in favour of the payee or holder in due course. The said sections are reproduced below:
"139. 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, or any debt or other liability."
"118. Presumptions as to negotiable instruments of consideration 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 bee accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.
(b) As to date that every negotiable instrument bearing a date was made or drawn on such date;........................."
10. These presumptions in favour or complainant are rebuttable in nature and it is no CC no 225/1/06 Nand Kishore through LR wife Aneeta Mehra vs Sita Rani Page 6 of 10 more res integra that the burden lies on the shoulder of the accused to rebut the same. It is now well established that the accused can prove the non-existence of any debt or any other liability by raising a probable defence or by demolishing or discrediting the case of the complainant in cross-examination of witness adduced by the complainant.
11. The Hon'ble Apex Court in M.S. Narayana Menon Vs. State of Kerala, (2006) 6 SCC 39 laid down the law in the given terms:
"Applying the said definitions of 'proved' or 'disproved' to principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.
This Court, therefore, clearly opined that it is not necessary for the defendant to disprove the existence of consideration by way of direct evidence.
The standard of proof evidently is pre-ponderance of probabilities. Inference of pre- ponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies."
12. The present complaint has been filed by the complainant Nand Kishore (represented by wife Aneeta Mehra) against the accused Sita Rani on the allegations that the accused and her husband Ashok had purchased a property i.e. Ground floor, B-54, Avantika, Sector-1, Rohini and had sought a loan of Rs. 3,33,000 from NandKishore. To pay the loan, the accused had issued the impugned cheques to the complainant which got CC no 225/1/06 Nand Kishore through LR wife Aneeta Mehra vs Sita Rani Page 7 of 10 dishonoured on presentation and despite receiving of legal notice, had not paid the cheque amount and therefore committed the offence u/s 138 NI Act.
13. The accused has assailed the present complaint and has pleaded that she has not taken any loan from the complainant and that he does not know the complainant Nand Kishore and his wife Aneeta Mehra. The accused has pleaded that they had purchased one property from Pawan Kumar (brother of Nand Kishore) and at that time Nand Kishore was residing on the first floor of that property. It is asserted that Nand Kishore had taken loan from them and for giving loan to Nand Kishore the impugned cheques were issued by the accused.
14. The wife of complainant Aneeta Mehra Devi had examined herself as CW-1. During cross examination, she stated that the amount of Rs. 3,33,000 was given in cash to the accused. It is further stated that she has never gone to the house of accused. She futher stated that she does not know the house no. or block no. of the accused. She further stated that the amount was paid by her husband in her presence in the house of the accused. This statement is in sheer contradiction to her earlier statements. She further deposed that the accused had taken loan from her husband for purchase of house but she does not know whether the house was being purchased by accused himself or his wife or from whom they were intending to purchase the same. She stated that she does not know whether her husband used to file Income tax return or not.
15. No document, receipt, pronote or loan agreement has been filed on behalf of the complainant to prove the loan transaction. No reason has been furnished as to why the no document has been executed between the parties regarding the loan transaction of such a substantial amount of Rs. 3,33,000. No Income tax return has been produced to show that the loan has been given by the complainant to the accused. Further, no source CC no 225/1/06 Nand Kishore through LR wife Aneeta Mehra vs Sita Rani Page 8 of 10 of income or withdrawl from bank of such amount has been shown. It is not proved from where the complainant has procured the amount of Rs. 3,33,000 which is given in cash to the accused.
16. On the other hand, the accused has produced one document Ex. A executed by Complainant Nand Kishore acknowledging the receipt of impugned cheques as loan from Godavari Devi (mother in law of accused). Aneeta Mehra wife of complainant Nand Kishore has admitted the signatures of Nand Kishore on Ex A. The contents of Ex A are not disputed except the last line from point X to Y which reads "Cheques will be presented only after the execution of agreement". Even if the disputed part is not considered, it is admitted that the impugned cheques were received by Nand Kishore as loan from Godavari Devi. No reason or explanation has been given why Nand Kishore has executed this document Ex A in favour of the other party.
17. Though the statutory presumptions lie in favour of the complainant for consideration and legally enforceable liablity but the burden on the complainant to prove that the cheques were issued for debt or legally enforceable liablity is an independent onus which he has to discharge. The burden upon the accused to rebut the presumptions is not high as that of the prosecution to prove the case beyond reasonable doubts. The accused has to show only pre-ponderence of probabilities in his favour by cross examination or by leading evidence. In the present case, the complainant has failed to prove that the cheques were issued towards a legally enforceable liability. The accused has proved her case on the pre-ponderence of probabilities.
FINAL ORDER
18. In the light of the above discussions and observations, this court has no hitch to exonerate the accused Sita Rani for the offence under section 138 NI Act. The accused is CC no 225/1/06 Nand Kishore through LR wife Aneeta Mehra vs Sita Rani Page 9 of 10 hereby acquitted. Bail bonds are cancelled and sureties stands discharged. Endorsements, if any, stands cancelled.
Announced in open court (SUSHIL ANUJ TYAGI)
20th day of August, 2014 Metropolitan Magistrate,
Rohini Courts: Delhi
CC no 225/1/06 Nand Kishore through LR wife Aneeta Mehra vs Sita Rani Page 10 of 10