Delhi District Court
17) Further, In Cc Alavi Haji vs . Palapetty Muhammed & Anr. on 23 May, 2023
IN THE COURT OF MR. VAIBHAV CHAURASIA
METROPOLITAN MAGISTRATE - 04 : NORTH WEST
DISTRICT, ROHINI COURTS : DELHI
Sh. Shivam Jinal
Vs.
Ms. Vandana Jain
PS Vijay Vihar
U/s 138 Negotiable Instruments Act
Date of Institution : 01.07.2016
Date of Judgment : 23.05.2023
JUDGMENT
(1) Serial number of the case : 18937/2016
(2) Name of the complainant : Sh. Shivam Jindal
S/o Sh. Raj Kumar
R/o House No. 82,
First Floor,
Pocket D11, Sector7,
Rohini, Delhi110085.
(3) Name of the accused : Ms. Vandana Jain
W/o Sh. Vikas Jain
R/o Flat No. C23,
Ahinsa Vihar Apartments,
Sector9, Rohini,
Delhi110085.
(4) Offence complained
of/ proved : U/S 138 Negotiable
Instruments Act,
1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : Convicted
Sh. Shivam Jindal
Vs.
Ms. Vandana Jain 1/22
(7) Reserved for judgment on : 08.05.2023
BRIEF STATEMENT OF THE REASONS FOR THE
DECISION
1) In brief, it is the case of the complainant that in the first
week of January, 2015, the accused had approached the complainant and requested him to provide her a financial assistant/friendly loan to the tune of Rs. 3,00,000/ (Rupees Three Lacs only) on the pretext of dire need of money to meet her some argent financial requirement and promised to refund/ repay the said amount to the complainant upto April, 2016. It is further stated that the complainant being the well wishers of the accused and considering her above request to be genuine had paid/ gave an amount of Rs.3,00,000/ (Rupees Three Lacs only) to the accused, which was transferred by the complainant in the bank account of the accused through RTGS in two installments of Rs.1,00,000/ (Rupees One Lac only) on 03.01.2015 and Rs.2,00,000/ (Rupees Two Lacs only) on 19.02.2015, believing upon the commitment/promise of the accused to refund/ return the entire amount of Rs.3 Lacs to the complainant upto April, 2016. That, in discharge of her abovesaid legally enforceable debts and liability of repaying the abovesaid amount to the complainant, the accused had issued a cheque bearing no. 124763 dated 12.04.2016 for a sum of Rs.3,00,000/ (Rupees Three Lacs only), drawn on HDFC Bank Ltd., Sector8, Rohini, Now Delhi110005, in favour of the complainant with the assurances that the aforesaid cheque would be honoured on its presentation for encashment by the complainant Sh. Shivam Jindal Vs. Ms. Vandana Jain 2/22 and believing upon the above words of the accused, the complainant accepted the abovesaid cheque towards the repayment of his amount. That, accordingly, as per the above assurances, commitment and instructions of the accused, the complainant presented the abovesaid cheque for encashment with his banker i.e. State Bank of Bikaner & Jaipur, Sector5, Rohini, Delhi110085, but to the utter shock and surprise of the complainant, the abovesaid cheque got dishonoured and returned unpaid to the complainant with the remarks "ACCOUNT CLOSED" vide cheque return memo dated 20.05.2016. That, the complainant immediately after receipt of the dishonoured cheque contacted and informed the accused about the fate of the said cheque and demanded his amount in cash, but the accused did not give any satisfactory reply and flatly refused to pay even a single penny to the complainant and also criminally intimidated to implicate the complainant in false cases, if he raised demand of his money. That, finding no other alternative the complainant got sent a legal notice dated 03.06.2016 to the accused through registered Speed Post as well as Courier and requested the accused to make the payment within 15 days from the date of receipt of said notice. That the aforesaid legal notice was served upon the accused, despite the legal notice the accused did not make the payment of the cheque. Hence, the present complaint was filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter "the Act").
2) The complainant/Sh. Shivam Jindal led presummoning evidence as CW1 by way of affidavit (Ex CW1/A) and relied Sh. Shivam Jindal Vs. Ms. Vandana Jain 3/22 upon documents i.e. the photocopy of bank statement exhibited as Ex. CW1/1. The same is deexhbited and marked as Mark X; the cheque bearing no. 124763 dated 12.04.2016 for a sum of Rs. 3 lacs exhibited as Ex. CW1/2; the returning memo dated 20.05.2016 exhibited as Ex. CW1/3; the legal notice dated 03.06.2016 exhibited as Ex. CW1/4; the postal receipts exhibited as Ex. CW 1/5; the courier receipts and tracking report exhibited as Ex. CW 1/6 which were duly considered by the Ld Predecessor and the accused was summoned vide order dated 25.07.2016 for offence u/s. 138 NI Act.
3) After the accused entered appearance, accused was admitted to bail and notice was framed against accused on 01.05.2017 by the Ld Predecessor wherein the accused stated the defence that the cheque in question bears only his signature and rest of the contents of the cheque were not filled in his handwriting. The complainant misused the cheque in question which was given to him for security purpose towards loan amount of Rs. 3 lac alongwith interest. He had repaid a sum of Rs. 6,50,000/ towards loan amount and interest to the complainant and when he demanded his cheque from the complainant and he said that he had destroyed the cheque in question. The complainant further promised that he would not misuse the cheque in question. The complainant filed the present false case against him. He did not owe any liability towards the complainant. He did not receive any legal notice.
Sh. Shivam Jindal Vs. Ms. Vandana Jain 4/22
4) After the application of the accused under Section 145 (2) NI Act was allowed by the Ld Predecessor vide order dated 01.05.2017, the accused was permitted to crossexamine the complainant.
5) During the evidence, the complainant was duly cross examined by the Counsel for accused in which complainant stated that he was 12th pass. He can not understand English Language but he can read it. He was property dealer by profession having his office at H.No. 82, Pocket D11, Ground Floor, Sector07, Rohini, Delhi. He was doing the aforesaid business since 67 years. He was income tax payee and he was filing return since 2012. Vol. He was not sure from 2011 or 2012. He can bring the income tax return filed by him in the Court. In Rohini Court, he have filed four/ five 138 NI Act cases. One case was filed against Smt. Madhu Grover amounting to Rs. 9,80,000/. Vol. He have settled that matter with Ms. Madhu Grover and he have also received the first installment. That day, he had brought the ITR for the year 20142015 & 2015 2016 Ex. CW1/D1 and CW1/D2. He admitted that in the aforesaid ITRs he have not shown the loan amount of Rs. 3 lakhs. He have filed more than 09 cases in Rohini Court u/s. 138 NI Act. However, he cannot tell the title/names of the said cases. In all 09 cases, the loan amount was about Rs. 25 Lakhs. All these cases pertaining to loan amount given to the other persons. Apart from Rohini Court, his 0506 cases are pending in the Dwarka Court u/s. 138 NI Act in which the loan amount was about 25 lakhs. All these case were filed between 20142018. He was filing the ITR since 2014 Sh. Shivam Jindal Vs. Ms. Vandana Jain 5/22 onwards. He admitted that he have not shown the loan amount in ITR pertaining to year 2014 to 2018. He have no money lending license. He denied that the cheque in question was given as a security cheque at the time of borrowing of the loan amount or that the loan amount was repaid by the accused in installment till February, 2016. He denied that after payment of loan amount, the accused requested him to hand over the security cheques given at the time of payment of loan amount. He denied that he assured the accused to hand over the security cheques within a week but despite demands and request, he had not handed over the security cheques to the accused. He denied that on 16.04.2016, Madhu Grover, Madhu Diwedi and accused went to his office for return of the security cheques. He denied that on 16.04.2016, he misbehaved or molested Madhu Grover or that he also threatened to kill accused or Madhu Diwedi or that not handed over the cheque and signed papers. He did not know as to whether any complaint was lodged in respect of incident dated 16.04.2016 as DD No. 16B dated 17.04.2016, PS North Rohini. He admitted that in respect of the incident dated 16.04.2016, a FIR no. 230/16 dated 11.05.2016 was registered u/s. 354/354A/506 IPC at PS North Rohini and same was pending trial in which the NDOH was 25.02.2019 before the Court Ms. Rajni Ranga, Ld. MM Mahila Court, Rohini, Delhi. He denied that he had misused the cheque in question after the incident dated 16.04.2016. He denied that accused has no liability towards the complainant in respect of cheque in question. He further denied that blank cheques were given by accused to him at the time of borrowing loan amount in January 2015 or that he himself had filled the date & amount in words and figures on cheque in Sh. Shivam Jindal Vs. Ms. Vandana Jain 6/22 question. He further denied that accused had paid Rs. 6.50 lakhs towards loan amount including the interest to him or that legal notice was not duly served upon the accused. He further denied that he was deposing falsely.
6) The statement of accused was thereafter recorded under Sec 313 Cr.P.C. on 21.04.2018 wherein the entire incriminating evidence was put to the accused and accused reiterated the defence taken already. Accused stated that the complainant had taken 34 blank signed cheques at the time of advancing the friendly loan of Rs. 3 lakhs but he did not return the same even after repayment of loan amount with interest. The accused, however, chose to lead evidence in his defence.
7) Accused Smt. Vandana Jaina examined herself as DW1 and stated that in January 2015, her husband was seriously suffering from Tuberculosis, and therefore, she was in the need of money. She have requested Madhu Grover for the money wherein she stated that she know someone who can arrange the money and she took her to the office of Shivam Jindal. At the office of Shivam Jindal, Shivam Jindal agreed that he can advance the loan to the extent of Rs. 3 lakhs with interest at 30 % per annum and in lieu of which she had to sign blank papers and have to hand over 4 blank security cheques. She have handed over blank security cheques of which two cheques were drawn on HDFC Bank and other two on Lakshmi Vilas Bank and she had to keep 20 tola jewellery which was given to her at the time of her marriage, which was handed Sh. Shivam Jindal Vs. Ms. Vandana Jain 7/22 over to Shivam Jindal. In March 2016, she have paid all the loan amount and she have cleared all the dues that she owed to Shivam Jindal. And, thereafter, she requested Shivam Jindal to On around return all the security cheques and the documents which he never returned. On 16.04.2016, on the instance of Shivam Jindal she alongwith Madhu Grover and one Madhu Diwedi (Madhu has also taken from Shivam Jindal in the same manner as she have taken), were called at the office of the Shivam Jindal under the pretext that he will return the security cheques and the documents and jewellery, however, he misbehaved with us and in particular threatend her that her only son shall be put to the death. Madhu Grover was mishandled and she was pushed by Shivam Jindal in the chest region. She have made complaint against Shivam Jindal on 17.04.2016, however, no action was taken by the police official. The copy of the complaint lodged is now in the records as Ex. DW 1/1 (Colly. running into 3 pages). Certified copy with respect to the chargesheet against the complainant Shivam Jindal is now exhibited as Ex. DW 1/2 (Colly. running into 32 pages). Documents procurred under RTI Act is exhibited as Ex. DW 1/3 (Colly. running into 13 pages). Shivam Jindal has sold one of her cheque to Sunita Grover for the amount of Rs. 1 lakh who has also threatend her that since she have your cheque she shall institute case against you and she has filed a case against her. Shivam Jindal has filed more than 1516 cases for the dishonourment of cheque against various persons. Shivam Jindal has never returned her blank cheques, documents and her jewellery which were taken at the time of advancement of loan and despite she have cleared all the dues that she owed to Shivam Jindal. He has failed to return her Sh. Shivam Jindal Vs. Ms. Vandana Jain 8/22 belongings and have further instituted that false and frivolous case against her. Witness was crossexamined by Ld. counsel for the complainant wherein she deposed that she was Graduate. She took the loan from Shivam Jindal in 2015 at interest rate of 30 % per annum. She have returned around 6 lakhs rupees to the complainant. She have returned to the complainant in cash. She was questioned "Can you specifically tell as to in how many installement have you paid and what particular amount you have paid?" to which she answered "Shivam Jindal used to extent pressure upon her and use to take 50,000/ or 1,00,000/ in one installment. She did not remember as to in how many installments and at what particular date she have given specifically. No written document was executed for the reason that since he use to have all the security documents as well as articles with him and therefore he use to exercise influence and henceforth, he never gave any receipt. It is wrong to suggest that since she have not returned any amount and henceforth no written document was executed therewith. She was questioned "Since you owed 20 tola Sona with yourself then henceforth why you have not pawned such jewellery with any of the financial institution rather than with the complainant ?" to which she replied "I live in joint Hindu family and therefore I could not gather courage to approach any financial institutions despite that the complainant has advanced her loan at such exorbitant rate." She was questioned "What is your source of income?" to which she replied "I run the shop of the Boutique since last 12 years and use to earn. I can bring her Bank statement to prove the same." She cannot say how much she used to earn. She use to earn 3040,000/ Sh. Shivam Jindal Vs. Ms. Vandana Jain 9/22 per month. She was not an Income Tax payee. It is wrong to suggest that she was an Income Tax payee because she fall in the bracket which is exempted from Income Tax or she never use to earn any money so that she could pay Income Tax upon. She cannot tell what was the market value of 20 tola gold at that point of time. There are three cases pending against her of cheque bouncing including that one. It is wrong to suggest that she was in habit of borrowing money and she was a frequent defaulter and therefore cases are pending against her. She have not lodged any complaint wherein Shivam Jindal has sold her cheque to Sunita Grover. It is correct that the other two cheques are still in possession of the complainant. Still her two cheques are in the possession of complainant. She had not filed any case for the recovery of these two cheques. There are three cases pending against her as an accused qua dishonourment of cheque. It is wrong to suggest that 9 cases are pending against her. Witness have been confronted with 9 cases which are pending against her which is now MarkA (colly) which is running into 24 pages. She paid the interest in advance to the complainant. Complainant did not issue any receipt against the payment which was paid to him against the principal as well as interest. There was no occasion to lodge a complaint with respect to non issuance of receipt when complainant was paid qua principal amount as well as interest. She have not transferred any amount from her bank account to the complainant. It is wrong to suggest that she did not return the loan amount to the complainant. It is wrong to suggest that she alongwith Smt. Madhu Grover, Poornima and Madhu Devi lodged false and frivolous complaint against the complainant just to grab legitimate amount of the complainant. It is Sh. Shivam Jindal Vs. Ms. Vandana Jain 10/22 wrong to suggest that she was deposing falsely. Vide order dated 28.01.2020, accused stated that in the month of January 2015, her husband was severely ill and was bedridden. She was in need of funds. Her friend Madhu Grover told her about a financier Shivam Jindal. The said financier become agreed to give a sum of Rs. 3 lakhs. He took her 23 sets of gold, 4 blank signed cheques as security out of which two were of Lashmi Vilas Bank and two were of HDFC Bank and he also took her signatures on some blank paper. It is further stated that she had repaid the loan amount in the month of March 2016. She had no legal lability towards the complainant in respect of the cheques in question. She requested the complainant many time to return her 23 sets of gold, 4 blank signed cheques as security and blank papers but he did not return the same and said that he would be returned the same. It has been further stated that on 16.04.2016, complainant had called her and Madhu Dwivedi through Madhu Grover in his office. On that day, the arguments started between Madhu Grover and the complainant. The arguments had converted into quarrel. After that, the complainant pushed Madhu Grover due to which Madhu Grover sustained injuries on her head. Accused further stated that the complainant had extended the threats her and Madhu Dwivedi and said that she will shoot both of them. Accused further stated on 17.04.2016, Madhu Grover had lodged a complaint at PS Sector7 but no action was taken on the said complaint. During her cross examination, her two cheques are the possession of complainant. She had not filed any case for the recovery of these two cheques. There were three cases pending against her as an accused qua dishonourment of cheque. She denied that 9 cases were pending Sh. Shivam Jindal Vs. Ms. Vandana Jain 11/22 against her. She was confronted with 9 cases which were pending against her which was MarkA (colly). She further stated that she paid the interest in advance to the complainant. Complainant did not issue any receipt against the payment which was paid to him against the principal as well as interest. There was no occasion to lodge a complaint with respect to non issuance of receipt when complainant was paid qua principal amount as well as interest. She had not transferred any amount from her bank account to the complainant. She denied that did not return the loan amount to the complainant. She further denied that she alongwith Smt. Madhu Grover, Poornima and Madhu Devi lodged false and frivolous complaint against the complainant just to grab legitimate amount of the complainant.
8) Vide order dated 14.11.2022, DE stands closed.
9) Final arguments advanced by Sh. Manish Sharma, Ld counsel for the complainant and by Sh. Yashpal Singh, Ld. Counsel for the accused have been carefully considered alongwith the entire evidence on record.
10) To prove an offence under Section 138 NI Act, it is required to be proved that:
(i) The accused issued a cheque on an account maintained by him/her with a bank for payment of money to another from out of that account;
Sh. Shivam Jindal Vs. Ms. Vandana Jain 12/22
(ii) That cheque has been issued for the discharge (either in whole or in part) of any debt or other liability;
(iii)That cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) That cheque has been returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him/her from the bank regarding the return of the cheque as unpaid; and
(vi) The drawer of such cheque failed to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
11) In the case at hand, the accused has not disputed that the cheque in question has been issued on an account maintained by accused with a bank and hence the ingredient (i) is deemed to proved as not disputed.
Sh. Shivam Jindal Vs. Ms. Vandana Jain 13/22
12) In respect of ingredient (iii) and (iv), the complainant has testified that the cheque in question i.e. Ex CW1/2 dated 12.04.2016 was returned dishonoured on 20.05.2016. During the crossexamination of complainant, no questions were put to the complainant nor any suggestions were given to the complainant as to the cheque not having been presented to the bank within the period of its validity. Hence the ingredient (iii) ie the factum of the cheque in question having been presented during the period of its validity is deemed to be proved as not disputed.
13) Further, with the factum of dishonour of the cheque in question being not disputed by the accused and rather as having been admitted by accused in statement under Sec 313 CrPC, the ingredient (iv) is also deemed to be admitted as not disputed.
14) In respect of the legal notice, as CW1, the complainant has testified that upon dishonour of cheque in question, complainant sent notice dated 03.06.2016 (Ex CW1/4) to the accused for return of the cheque amount vide speed post and courier on 07.06.2016 i.e within 30 days of dishonour of the cheque. The complainant also relied upon receipts (Ex CW1/5) alongwith courier receipts and tracking report (Ex CW1/6). The accused has however denied receipt of the notice of demand.
15) It is pertinent to note that Section 114 of Evidence Act, 1872 is applicable to communications sent by post and it enables the court to presume that in the common course of natural events, the Sh. Shivam Jindal Vs. Ms. Vandana Jain 14/22 communication would have been delivered at the address of the addressee. Section 27 of the General Clauses Act envisages that when a registered notice is posted, it is presumed to have been served unless rebuttal is given.
16) In the present case, it is not the case of the accused that the address on which the notice was sent is not accused's address, rather accused has given the same address in the court when accused's statement under Section 281 r/w 313 CrPC was being recorded. Hence the notice was sent by the complainant at accused's correct address. For reasons best known to accused, the accused has not led any evidence in rebuttal to disprove the report given by the postal official either.
17) Further, in CC Alavi Haji Vs. Palapetty Muhammed & Anr. (Crl. Appeal No. 767 of 2007), the Hon'ble Apex Court has held that " 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 u/s. 138 of the Act, make payment of the cheque amount and submit 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 u/s. 138 of the Act, cannot obviously contend that there was no proper service of notice as required u/s. 138, by ignoring statutory Sh. Shivam Jindal Vs. Ms. Vandana Jain 15/22 presumption to the contrary u/s. 27 of the General Clauses Act and Section 114 of the Evidence Act".
18) Thus, keeping in view that except mere denial of receipt of notice of demand, no evidence in rebuttal has been led by the accused as also keeping in view the dictum of the Hon'ble Apex Court, merely on the account of non service of legal notice dated 03.06.2016 (Ex CW1/4) the present complaint cannot be rejected and the same is presumed to have been duly served upon the accused.
19) In respect of ingredient (vi), it is pertinent to note that admittedly the accused has not made any payment to the complainant in respect of the cheque in question till date. Hence even the ingredient (vi) stands proved.
DEBT/LIABILITY
20) It is a well settled position of law that once execution of the negotiable instrument is admitted, the presumption under Section 118(a) NI Act would arise that it is supported by a consideration. However, such presumption is rebuttable and the accused can prove the nonexistence of consideration by raising a probable defence. If the accused is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant who will be obliged to prove it as a matter of fact and Sh. Shivam Jindal Vs. Ms. Vandana Jain 16/22 upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the accused of proving the nonexistence 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 accused is entitled under law to rely upon all the evidence led in the case including that of the complainant as well. To disprove the presumption, the accused has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist." (Reliance placed on Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal, (1993) 3 SCC 35 )
21) The NI Act also provides under Section 139 that 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, 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. It is a settled position that when an accused has to rebut the presumption under Section 139 , the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence Sh. Shivam Jindal Vs. Ms. Vandana Jain 17/22 of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. (Reliance placed on Rangappa vs Sri Mohan, (Criminal Appeal no 1020 of 2010 decided by the Hon'ble Supreme Court).
22) In the present case, from the evidence on record, the accused has not been able to bring on record certain facts which make the case of the complainant to be displaced upon preponderance of probability.
23) Firstly, it is admitted position on the part of the accused herein that she has received the amount of Rs. 3 lakhs from the accused. However she has stated that she has returned the same. No single evidence has been brought on record to prove that she has paid such amount. Nor any evidence has been led to prove that when it was paid and infront of whom it was paid.
24) Secondly, one of the defence that have been taken on the part of accused is that Complainant not only has misbehaved with her but also with Madhu. But such case against the complainant and with respect to offences against women does not set off the debt, and fruther such case could not prove that there is any mala fide on the part of the complainant.
25) Thirdly, mere assertion that all the dues of the complainant has been paid without any evidence cannot lead on its own to Sh. Shivam Jindal Vs. Ms. Vandana Jain 18/22 displacement of case of the complainant on the preponderance of probability.
26) Fourthly, just because ITR does not reveal that the loan of Rs. 3 lakh have been advanced does not do away with the proof that the accused has repaid the loan amount, for it is not in controversy that the loan amount was received by the accused which she has admitted however she has failed to prove her defence that she has repaid the same.
27) Fifthly, further accused have examined herself but she has omitted to examine either Madhu Grover or Madhu Dwivedi. The examination of the aforesaid witness was essential to substantiate the case of the accused. Failure to do so have only to be interpreted against the accused.
28) Sixthly, there is not even a single document on record which could prove that the husband of the accused was ill. One of the ground that is raised is that complainant is cantankerous litigant and after accused have filed complaint against the complainant with respect to the modesty of women, the present case have been filed as a counterblast. However, this court has no hesitation to hold that both the parties have indulged in several litigation with third person, therefore no oblique motive can be imputed. Further, it was also argued on the part of complainant that the accused have initiated complaint only to avoid the payment of the complainant.
Sh. Shivam Jindal Vs. Ms. Vandana Jain 19/22
29) Seventhly, it also does not inspires confidence that the accused would keep 20 tola Gold, that too in year 201516 which would cost around for Rs. 6 lakhs, to take the loan of Rs. 3 lakh. Further her plea that she lives in a joint family and therefore could not gather courage to pawn the gold with any financial institution cannot be relied upon as accused is an independent women who is running the shop of boutique, hence such plea cannot come to rescue her.
30) Eightly, when the complainant have created documentary evidence regarding the advancement of the loan and it is deposed by the accused herself that no written document was executed for the reason that the complainant used to have all the security document as well as articles with him and therefore continues to exercise influence and henceforth he never gave any receipt doesn't seems to inspire confidence. Since accused herein is a independent lady, it cannot be expected of her, as it is expected that one who is running a shop is well versed with the basic financial transaction, that in the case if she has repaid the loan amount in cash, it is not at all believable that she will not take a receipt to that effect.
31) Hence, by bring forth the circumstances as enumerated above, the accused has not discharged the initial onus of proof showing that the existence of debt/liability/consideration was improbable/doubtful and hence after the complainant his proved the case beyond reasonable doubt, nothing has come by way of Sh. Shivam Jindal Vs. Ms. Vandana Jain 20/22 evidence on part of accused that could displace the case of the complainant on preponderance of probability.
32) It is a settled law that standard of proof on the part of an accused and that of the prosecution a criminal case is different and while 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 (Reliance placed on Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54).
33) In view of the above discussion and in the totality of the facts and circumstances of this case, the complainant has been able to prove that the cheque in question was issued in discharge of any existing legally enforceable debt or other liability and accused has failed miserably to counter it upon preponderance of probablity .
34) It is a settled law that standard of proof on the part of an accused and that of the prosecution a criminal case is different and while 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 (Reliance placed on Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54).
35) In view of the above discussion and in the totality of the facts and circumstances of this case, the accused has miserably failed to Sh. Shivam Jindal Vs. Ms. Vandana Jain 21/22 prove his defenses, even upon the parameters of preponderance of probabilities.
36) Hence, with the presumptions arising in favour of the complainant under Sections 118 and 139 of the Act not having been rebutted by the accused by preponderance of probabilities, and with the accused failing to lead clear, cogent and credible evidence to prove that the cheques in question was not issued in discharge of any legally enforceable debt or liability, the accused Ms. Vandana Jain W/o Sh. Vikas Jain is held guilty for the offence punishable under Section 138 of the Negotiable Act and hence, he stands convicted.
Copy of Judgment be given to the accused dasti free of cost.
Announced in the open court on 23.05.2023 (VAIBHAV CHAURASIA) Metropolitan Magistrate04/ North West District, Rohini Court/Delhi Certified that this judgment contains 22 pages and each page bears my signature.
(VAIBHAV CHAURASIA) Metropolitan Magistrate04/ North West District, Rohini Court/Delhi Sh. Shivam Jindal Vs. Ms. Vandana Jain 22/22