Delhi District Court
Ms. Kajal Wahi vs Ms. Gomti Datta on 24 December, 2011
CC No. 757/A/11
Ms. Kajal Wahi Vs Ms. Gomti Datta
IN THE COURT OF VIPLAV DABAS
METROPOLITAN MAGISTRATE
DISTRICT-NORTH, TIS HAZARI COURTS, DELHI
Ms. Kajal Wahi Date of institution of case : 13.02.2007
VS Date of decision of case : 24.12.2011
Ms. Gomti Datta
Unique ID No.02401R0135982007
CC.No.757/A/11
P.S.- Lahori Gate
U/S 138 Negotiable Instrument Act
JUDGMENT
1. Date of the commission of offence : 26.01.2007
2. Name & address of the complainant : Ms. Kajal Wahi
W/o Sh. Ashwani Wahi,
R/o B-43/3, Double Storey,
Ramesh Nagar,
New Delhi-110015
3. Name & address of the accused : Ms. Gomti Datta @ Prabha
W/o Sh. Ram Datta
R/o 42/17, Double Storey,
Ramesh Nagar,
New Delhi-110015
4. Offence complained of : Under section 138 of
Negotiable Instruments Act
5. Plea of accused & examination if an : Pleaded not guilty.
Examination u/s.313 Cr.PC
Defence evidence was led.
6. Final order : Acquitted
7. Date of such order : 24.12.2011
1/33
CC No. 757/A/11
Ms. Kajal Wahi Vs Ms. Gomti Datta
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, this court shall decide complaint case under section 138 Negotiable Instruments Act, 1881 (as amended upto date) filed by the complainant Smt. Kajal Wahi against the accused Smt.Gomti Datta.
2. Brief facts necessary for the disposal of the present case as per the allegations in the complaint, are as follows :-
The complainant was having friendly terms with the accused and her daughter. Taking advantage of the friendly relationship, the accused along with her daughter had taken friendly loan from the complainant from time to time amounting to Rs 5.65 lacs and for the repayment of said friendly loan, the accused along with her daughter issued various cheques in favour of the complainant. In discharge of the said legally recoverable debt, the accused issued a cheque a bearing no.266931 dated 29.12.2006 for an amount of Rs 40,000/- drawn on HDFC Bank, Rajouri Garden, New Delhi with the assurance that the same will be encashed on its presentation with the bankers.
However, on presentation the cheque was dishonored vide cheque returning memo with remarks "Funds Insufficient". When the cheque in question were got dishonored by the banker of the accused, the complainant approached the accused and told him the factum of dishonoring of cheque and requested the accused to pay the cheque amounts. But when the accused failed to pay the amount of the cheque in question, the complainant through his lawyer served demand cum legal notices by UPC and registered AD post thereby by calling upon the accused and her daughter to make payment of the dishonored cheque within 15 days of the receipt of the said notice. The accused and her daughter instead of making payment of the dishonored cheques, as demanded in the legal notice of the complainant, gave separate detailed replies to the notices of the complainant.
As a result of which the complainant filed 15 complaint cases against the accused including the instant case and one separate complaint against her daughter, 2/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta for prosecution of the accused persons u/s 138 Negotiable Instruments Act, 1881 (as amended upto date).
It is worth mentioning that the complainant has filed 16 complaint cases based on the same version wherein most of proceedings were conducted jointly against the present accused and her daughter (accused in separate cases )in respect of 16 different cheques for amounts totaling Rs. 5,65,000/- the particulars of which are as follows: complaint cases bearing no. 741/A/11, 782/A/11,757/A/11, 739/A/11, 791/A/11, 773/A/11, 762/A/11, 747/A/11, 742/A/11,756/A/11, 759/A/11, 766/A/11, 761/A/11, 758/A/11, 755/A/11 and 763/A/2011.
3. After considering the entire material and documents on record, summons were issued my Ld. Predecessor against the accused vide order dated 05.02.2007 for the offence punishable u/s 138 of the Negotiable Instruments Act, 1881. On appearance of the accused, a separate notice u/s.251 of the Code of Criminal Procedure, 1973 was served upon the accused on 09.06.2008, to which accused pleaded not guilty and claimed trial.
4. Thereafter the complainant was cross examined by learned counsel for the accused and discharged. The accused put documents exhibited as EX. CW-1/A2 to EX. CW-1/A16 to the complainant most of which were admitted by the complainant, except documents EX.CW-1/A7, EX.CW-1/A11 and EX.CW-1/A16.
5. Subsequent to this the statement of accused was recorded u/s 313/281 of the Code of Criminal Procedure, 1973 in which all the incriminating evidence alongwith exhibited documents were put to the accused Smt.Gomti Datta. The accused stated that she issued blank cheque bearing her signature as a security in lieu of loan of Rs 2 lacs taken from the complainant which has been repaid to the complainant along with interest. Accused stated that the complainant took the blank cheques in question as a security and did not return the same after repayment of the loan despite repeated requests. Accused further stated that the complainant also took her signatures on some blank documents.
3/33CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta
6. Opportunity for leading the defence evidence was given to accused. However, accused did not depose herself as defence witness. Witness Sh. Sandeep Kumar Dabas, Assistant Ahlmad in the court of Sh. Mukesh Kumar, Ld. ACJ, Rohini and Sh.
Sunil Kumar, Assistant Ahlmad in the court of Ms. Savita Rao, Ld. ADJ were summoned on behalf of accused who were examined and discharged. Defence evidence was closed upon recording the statement of Ld. Counsel for accused.
7. The court heard the arguments advanced by the learned counsels and perused the entire record of the case file as well as evidence on record.
Legal Discussion
8. Before proceeding further, it would be appropriate to quote the Hon'ble Supreme Court in Rangappa Vs. S.Mohan arising out of SLP (Crl) No.407/2006 (2010) NSC 373 decided on 07.05.2010.
"Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by section 139 of the Act."
8.1 In order to bring home the conviction of the accused, the complainant has to prove the ingredients of the offence complained of. The main ingredient of Section 138 of the Negotiable Instruments Act, 1881 are as follows:
i. The accused issued cheque on an account maintained by him with a bank.
ii. The said cheque has been issued in discharge of any legal debt or other liability.4/33
CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta iii. The cheque has been presented to the bank within the period of six months from the date of the cheque or within the period of its validity.
iv. When the aforesaid cheques were presented for encashment, the same were returned unpaid/dishonoured.
v. The payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
vi. The drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.
If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/s. 138 of the Negotiable Instruments Act, 1881.
Offence u/s 138 Negotiable Instruments Act is a technical offence, which involves a reverse onus clause and the reverse onus can be rebutted by raising a mere preponderance of probability.
8.2 Nature and Extent of Rebuttal
a) A three judges bench of Hon'ble Supreme Court while dealing with presumptions under Prevention of Corruption Act has observed in Trilok Chand Jain vs State Of Delhi 1977 AIR 666 as under:
"The presumption however, is not absolute. It is rebuttable. The accused can prove the contrary. The quantum and the nature of proof required to displace this presumption may vary according to the circumstances of each case. Such proof may partake the shape of defence evidence led by the accused, or it may consist of circumstances appearing in the prosecution evidence itself, as a result of cross-examination or otherwise. But the degree and the character of the burden of proof which s. 4(1) casts on an accused person to rebut the presumption raised thereunder, cannot be equated with the 5/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta degree and character of proof which under s. 101, Evidence Act rests on the prosecution.. While the mere plausibility of an explanation given by the accused in his examination under s. 342, Cr.P.C. may not be enough, the burden on him to negate the presumption may stand discharged, if the effect of the material brought on the record, in its totality, renders the existence of the fact presumed, improbable. In other words, the accused may rebut the presumption by showing a mere preponderance of probability in his favour; it is not necessary for him lo establish his case beyond a reasonable doubt- see Mahesh Prasad Gupta v. State of Rajasthan.
Another aspect of the matter which has to be borne in mind is that the sole purpose of the presumption under s. 4(1) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offences under s. S (1) (2) of the Prevention of Corruption Act and s. 161, Penal Code. The presumption therefore can be used in furtherance of the prosecution case and not in derogation of it. If the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception, if out of judicial courtesy it cannot be rejected out of hand as still born."
b) To what extent a mere reliance upon the presumptions of law can help the complainant is being discussed in the following paragraphs:-
Hon'ble High Court of Bombay in Peter Mascarenhas Vs. Monsabre Ashley Oswald Dias, CCC X-2010(4) 234 has dealt with the above aspect in great detail. This was also a case of friendly loan of Rs. 12 lakhs which the complainant had lent to the accused after collecting the same from several other persons. Complainant had examined the persons from who he collected the amount. There was also an agreement executed by the accused person. However, after a detailed factual and legal discussion, Hon'ble High Court has acquitted the accused primarily on the 6/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta ground that complainant has failed to discharge his onus to establish accumulation of money. It has been observed therein that:
"In juxtaposition though the Complainant was faced with the aforesaid material which has come through the cross examination of Cw.2, Cw. 3 and Cw.4, the Complainant did not choose to lead any further evidence to discharge the burden of proving the existence of the liability when the burden again shifted to him. Applying the principles that the Complainant has to prove the offence beyond reasonable doubt but the Accused has to only probabilise his defence, in my view, the test has been satisfied by the Accused then the Complainant. The Complainant as can be seen has not led any further cogent evidence to prove the factum of the lending of the money to the Accused and thereby has not discharged the burden which had shifted to him on account of the evidence which has come in cross examination of the Complainant and his witnesses."
c) Hon'ble Supreme Court in K. Prakashan vs P.K. Surenderan decided on 10 October, 2007 has also dealt with the aspect of friendly loan and scope of presumptions of law. The facts of the case were:
"3. Respondent herein allegedly, on diverse dates, advanced a sum of Rs. 3,16,000/- to the appellant who issued a cheque for the said amount on 18.12.1995. The said cheque was dishonored on the ground of insufficient fund. Allegedly, when the matter was brought to the notice of the appellant, he undertook to remit the amount on or before 30.01.1996. The cheque was again presented but the same was not enchased on the ground payment stopped by the drawer.
5. The complainant in support of its case led evidence to show that he had advanced various sums on the following terms: On 31-1-94 a sum of Rs. One lakh; on 8-6-94, Rs. 86,000/-; on 12-6-94, Rs. 28,000/-; on 7/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta 23-4-95, Rs. 50,000/- on 18-6-95, Rs. 40,000/- and on 7-8-95, Rs. 12,000/-.
6. Defence of the appellant, on the other hand, was that he had issued blank cheques for the purpose of purchase of spare parts, tyres, etc. in connection with the business of transport services run in the name of his brother. The blank cheques used to be returned by the sellers of spare parts, etc. when the amounts were paid. According to the appellant, the complainant lifted the impugned cheque book put in the bag and kept in his shop. Appellant in support of his case examined the Bank Manager of the Bank concerned. "
Hon'ble High Court having reversed the judgment of acquittal, accused approached the Hon'ble Supreme Court. Hon'ble Supreme Court has observed therein that:
"14. The learned Trial Judge had passed a detailed judgment upon analysing the evidences brought on record by the parties in their entirety. The criminal court while appreciating the evidence brought on record may have to weigh the entire pros and cons of the matter which would include the circumstances which have been brought on record by the parties. The complainant has been found to be not man of means. He had allegedly advanced a sum of Rs. 1 lakh on 13.01.1994. He although had himself been taking advances either from his father or brother or third parties, without making any attempt to realize the amount, is said to have advanced sums of Rs. 86,000/- on 8.06.1994. Likewise he continued to advance diverse sums of Rs. 28,000/-, Rs. 50,000/-, Rs. 40,000/- and Rs. 12,000/- on subsequent dates. It is not a case where the appellant paid any amount to the respondent towards repayment of loan. He even did not charge any interest. He had also not proved that there had been any commercial 8/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta or business transactions between himself and the appellant. Whey the appellant required so much amount and why he alone had been making payments of such large sums of money to the appellant has not been disclosed. According to him, he had been maintaining a diary. A contemporaneous document which was in existence as per the admission of the complainant, therefore, was required to be brought on records. He failed to do so. He also did not examine his father and brothers to show that they were men of means and in fact advanced a huge sum to him only for the purpose of grant of loan by him to the appellant. The learned Trial Court not only recorded the inconsistent stand taken by the complainant in regard to the persons from whom he had allegedly borrowed the amount, it took into consideration the deposit of the cheques in the bank commenting: Ext. D1 the counterfoil of the cheque book issued to the accused from that bank, was proved through him. It contains the counterfoils of the cheques 782451 to 782460. Ext. D2 is the pass book issued to the accused from that bank. SW1 is the Branch Manager of Syndicate Bank, Koyilandy. He would say that in Ext. P4 ledger extract, cheque No. 782460 reached the bank for collection on 30.12.93. The net transaction in that account was in the year 1996. Cheque No. 782451 reached the bank on 8.1.96. Ext. D1 shows that is the first cheque in that book. 782460 is the lost cheque in that book. If the lost cheque i.e. 782460 reached the bank for collection on 30.12.93 in normal and reasonable course the first cheque i.e. 782451 might have been issued even prior to that date. Case of the complainant is that Ext. P1 cheque was given to him by the accused on 5.10.95 and the cheque was dated 18.12.95. Ext. P4, D1 and D2 substantiate the case of the accused that the allegation of the complainant that Ext. P1 cheque was given to him on 18.12.95 is not genuine."9/33
CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta Hon'ble Supreme Court has observed therein that the High Court, as noticed herein before, on the other hand, laid great emphasis on the burden of proof on the accused in terms of Section 139 of the Act.
The question came up for consideration before a Bench of this Court in M.S. Narayana Menon (supra) wherein it was held:
"38. If for the purpose of a civil litigation, the defendant may not adduce any evidence to discharge the initial burden placed on him, a fortiori even an accused need not enter into the witness box and examine other witnesses in support of his defence. He, it will bear repetition to state, need not disprove the prosecution case in its entirety as has been held by the High Court."
A presumption is a legal or factual assumption drawn from the existence of certain facts. It was furthermore opined that if the accused had been able to discharge his initial burden, thereafter it shifted to the second respondent in that case.
The said legal principle has been reiterated by this Court in Kamala S. v. Vidhyadharan M.J. and Another [(2007) 5 SCC 264] wherein it was held:
"The Act contains provisions raising presumption as regards the negotiable instruments under Section 118(a) of the Act as also under Section 139 thereof. The said presumptions are rebuttable ones. Whether presumption stood rebutted or not would depend upon the facts and circumstances of each case."
The nature and extent of such presumption came up for consideration before this Court in M.S. Narayana Menon Alias Mani V. State of Kerala and Anr. [(2006) 6 SCC 39] wherein it was held :
"30. Applying the said definitions of proved or disproved to the principle behind Section 118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after 10/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta 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 dos 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 clearly laid down the law that standard of proof in discharge of the burden in terms of Section 139 of the Act being of preponderance of a probability, the inference therefore can be drawn not only from the materials brought on record but also from the reference to the circumstances upon which the accused relies upon. Categorically stating that the burden of proof on accused is not as high as that of the prosecution, it was held; Presumption drawn under a statute has only an evidentiary value. Presumptions are raised in terms of the Evidence Act. Presumption drawn in respect of one fact may be an evidence even for the purpose of drawing presumption under another. "
Reliance is also placed upon a decision of this Court in Goaplast (P) Ltd. v. Chico Ursula DSouza and Another [(2003) 3 SCC 232] wherein this Court opined:
"The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. This presumption coupled with the object of Chapter XVII of the Act which is to promote the efficacy of banking operation and to ensure credibility in business transactions through banks persuades us to take a view that by countermanding payment of post-dated cheque, a party should not be allowed to get away from the penal provision of Section 138 of the Act. A contrary view would render Section 138 a dead letter and will provide a handle to persons trying to avoid 11/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta payment under legal obligations undertaken by them through their own acts which in other words can be said to be taking advantage of ones own wrong. If we hold otherwise, by giving instructions to banks to stop payment of a cheque after issuing the same against a debt or liability, a drawer will easily avoid penal consequences under Section
138. Once a cheque is issued by a drawer, a presumption under Section 139 must follow and merely because the drawer issued notice to the drawee or to the bank for stoppage of payment it will not preclude an action under Section 138 of the Act by the drawee or the holder of the cheque in due course. This was the view taken by this Court in Modi Cements Ltd. v. Kuchil Kumar Nandi. On same facts is the decision of this Court in Ashok Yeshwant Badave v. Surendra Madhavrao Nighojakar. The decision in Modi case overruled an earlier decision of this Court in Electronics Trade & Technology Development Corpn. Ltd. v. Indian Technologists & Engineers (Electronics) (P) Ltd. which had taken a contrary view. We are in respectful agreement with the view taken in Modi case. The said view is in consonance with the object of the legislation. On the faith of payment by way of a post-dated cheque, the payee alters his position by accepting the cheque. If stoppage of payment before the due date of the cheque is allowed to take the transaction out of the purview of Section 138 of the Act, it will shake the confidence which a cheque is otherwise intended to inspire regarding payment being available on the due date. "
No exception to the aforementioned legal principle can be taken. What, however, did not fall for consideration in the aforementioned case was as to how the said burden can be discharged.
It is now trite that if two views are possible, the appellant court shall not reverse a judgment of acquittal only because another view is possible to be taken.
12/33CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta The appellate courts jurisdiction to interfere is limited. [See M.S. Narayana Menon (supra) and Mahadeo Laxman Sarane & Anr. v. State of Maharashtra, 2007 (7) SCALE 137]. The High Court furthermore has not met the reasons of the learned Trial Judge. It proceeded on the premise that the appellant had not been able to discharge his burden of proof in terms of Section 139 of the Act without posing unto itself a further question as to how the said burden of proof can be discharged. It furthermore did not take into consideration the legal principle that the standard of proof upon a prosecution and upon an accused is different. "
Hon'ble Supreme Court in Kamala S vs Vidyadharan M.J. & Anr Appeal (crl.) 233 of 2007, decided on 20.02.2007 observed that :
"The Act contains provisions raising presumption as regards the negotiable instruments under Section 118(a) of the Act as also under Section 139 thereof. The said presumptions are rebuttable ones. Whether presumption stood rebutted or not would depend upon the facts and circumstances of each case.
This Court clearly laid down the law that standard of proof in discharge of the burden in terms of Section 139 of the Act being of preponderance of a probability, the inference therefor can be drawn not only from the materials brought on record but also from the reference to the circumstances upon which the accused relies upon......."
Hon'ble Supreme Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde 2008 AIR SCW 738 has observed that:
"30. The proviso appended to the said section provides for compliance with legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under 13/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.
31. The courts below, as noticed herein before, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct.
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 the accused and that of the prosecution in a criminal case is different.
34. Furthermore, 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 the accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies.
45. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the 14/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have been rebutted. Other important principles of legal jurisprudence, namely, presumption of innocence as a human right and the doctrine of reverse burden introduced by Section139should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same."
d) It may be pertinent to mention here that a three judges bench of the Hon'ble Supreme Court in Rangappa Vs. S. Mohan (2010) 11 SCC 441 has considered the dictum of Krishna Janardhan Bhat (supra) and overruled the view so far as existence of liability is concerned, however, has not dissented with other parameters observed and laid down in the said case. It has been observed therein that:
"14. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. "
e) This court is of the opinion that an accused has a right to rebut the presumption by placing reliance upon the circumstances brought and material placed by the complainant. Hon'ble Supreme Court in Rangappa Vs. S. Mohan (2010) 11 SCC 441 has further held that:
"However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the 15/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta 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 accused/defendant cannot be expected to discharge an unduly high standard or proof. 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 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 of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, 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."
9. Version of Accused That the complainant is engaged in the business of money lending and is a professional money lender. The accused being in the financial crunch, approached the complainant for a loan and took a loan of Rs 2 lacs on interest from the complainant. The complainant prepared a loan file in the name of the accused and also took her signature on some blank papers. That the complainant approached the accused in the year 2006 and asked the accused to issue 15 blank cheques as security towards the loan of Rs 2 lacs advanced by the complainant to the accused, on the assurance that the said cheques shall be used only as security and shall not in any circumstances be misappropriated by the complainant and further assurance that the cheques shall be returned back and the blank papers shall be destroyed on the satisfaction of the loan amount by the accused. On the assurance of the complainant, the accused issued cheques of HDFC Bank, Rajouri Garden, Delhi and handed over the same to the complainant, as a collateral security against the loan of 16/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta Rs 2 lacs. The accused without delay started paying, to the complainant, in installments, the principle amount and the interest as agreed between the complainant and the accused. The complainant used to issue receipt/ acknowledgment slip of the receipt of the principle and/ or interest of the loan amount. However, the complainant had not issued the receipt of all the installments received from the accused. Moreover, some receipts in the name of Amita, Manoj, Chachi, Deepu, Gudiya etc (being the relative of the complainant) had also been issued by the complainant on the pretext that she has arranged the loan from them, so she will pay amount of this receipt to them. Around the month of September 2006, the accused approached the complainant and requested that since the accused had paid the entire loan amount and the interest thereto on the agreed rate, the loan of the accused stands satisfied so the complainant should return the blank cheques of the accused, taken as a security against the loan of Rs 2 lacs. But the complainant declined to return the same stating that some interest is yet to be paid towards the satisfaction of the said loan amount. So, the complainant misused the said 15 blank cheques issued as security and presented all the cheques to her banker after filling the desirable amount, without the knowledge and consent of the accused.
10. Now let us deal with the each ingredient of the section 138 of the Negotiable Instruments Act, 1881 to see whether the case against the accused has been proved or not.
By virtue of the affidavit filed at the time of pre-summoning evidence, wherein legal demand notice and postal receipts have been duly exhibited, requirement of proviso (b) & (c) appended to Section 138 of the Negotiable Instrument Act, 1881 stands satisfied (presumption of law arising under section 27 General Clauses Act is bound to arise). By virtue of Cheque Returning Memo dishonour stands Proved vide section 146 Negotiable Instrument Act, 1881. (Moreover, the accused has not controverted any of the above presumptions by even giving any suggestion in the cross examination of the complainant to negate the aforesaid presumptions and has even replied the legal notice). The cheque bearing no. 266931 dated 29.12.2006 exhibited as Ex.CW1/1 had been presented on 29.12.2006, which is within six 17/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta months of date of issuance and was returned unpaid on 30.12.2006 vide a return memo Ex.CW1/2 with the reason "Funds Insufficient". Notice dated 02.01.2007 Ex.CW1/3 was dispatched on 09.01.2007 which is within 30 days of dishonor of cheque in question. The complaint has been filed on 07.02.2007 which is well within one month of arising of the cause of action as the cause of action to file the present complaint arose on 26.01.2007 after completion of 15 days of the deemed delivery of legal notice.
11. By virtue of mandatory presumptions of law arising under section 118 and 139 of the Negotiable Instruments Act, 1881 legal liability can be treated as proved. It is pertinent to mention that the mandatory presumptions extend to the existence of legally enforceable debt or liability. (See a three judges bench decision of Hon'ble Supreme Court in Rangappa Vs. S. Mohan arising out of SLP (Crl) No.407/2006; (2010) NSC 373 decided on 07.05.2010.
12. Complainant has primarily relied upon the mandatory presumption of law in respect of legal liability. The issuance of cheque being admitted, signatures admitted & dishonor being proved presumption u/s 118 and 139 of the Negotiable Instruments Act, 1881 has to arise. So, it must be presumed that the liability as alleged was existing at the time when cheques were given.
13. Now it has to be seen whether the accused has been able to rebut the aforesaid presumption or not:-
It is a settled law that accused is entitled to discharge the onus placed on him even on the basis of materials brought on record by the complainant. It is not obligatory on the accused to separately adduce evidence or to enter into witness box if she can successfully gather the material from the evidence of complainant which would sufficiently disprove the presumptive facts by a rising a mere preponderance of probability without resorting to proof beyond reasonable doubt particularly in relation to the pre-existence of legal liability of the debt for the discharge of which cheque was given. In the present case, the accused has relied on the material 18/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta brought by the complainant and also preferred to examine Sh. Sunil Kumar Assistant Ahlamd in the Court of Ms. Savita Rao, Ld. ADJ and Sh. Sandeep Kumar Dabas, Assistant Ahlmad in the Court of Sh. Mukesh Kumar, Ld.ACJ, Rohini, Delhi as defence witness.
13.1 On perusal of complaint and affidavit, it is inferred that the accused Gomti Datta and her daughter took friendly loan of Rs. 5,65,000 from the complainant over a period of time and the accused persons issued various cheques in favour of complainant towards discharge of aforesaid legally recoverable friendly loan liability.
Accused Gomti Datta issued 15 cheques of various amounts in respect of which 15 complaint cases have been filed and her daughter Keshvi Dutta issued one cheque of Rs. 50,000 in respect of which separate complaint case has been filed. In the complaint, neither the dates of advancement of loan nor the dates of issuance of cheques have been mentioned which itself creates doubt on the version of complainant regarding advancement of loan and issuance of cheques towards its repayment as these facts are material to the case considering the quantum of friendly loan advanced as well as the number of cheques issued within the month of December 2006 itself, which an honest complainant would have disclosed but the present complainant concealed these material facts for reasons best known to her.
13.2 Initially the proceedings in the complaint case between the complainant and both the accused persons (mother and daughter) were conducted separately and so the cross examination was also done on different dates but as is evident from the complaint that the role of both mother and daughter has been jointly mentioned , so the proceedings and cross examination of a case of one accused must be considered as part and parcel of other co-accused. It is pertinent to mention here that the complainant has filed a civil suit for recovery against the accused persons in respect of same transaction and the same 16 cheques. The plaint, cross examination and other proceedings of the said civil suit have been duly proved by the accused persons by putting the relevant documents to complainant during her cross examination and by calling the ahlmads of the respective courts to ascertain 19/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta their correctness. The proceedings of complaint case u/s138 Negotiable Instrument Act filed by the complainant against a person namely Vikas Marwah for a sum of Rs. 10.4 lakh had also been duly proved by the accused in the present case. These documents pertaining to the civil suit and the aforesaid complaint case are also being considered for the appraisal of the present complaint case.
13.3 In cross examination conducted on 07.6.2007 complainant admitted that loan of Rs.2 lakhs was taken for a year and that the loan of Rs.2 lakhs was paid to accused Gomti Dutta at one time by a cheques of Rs. 2 lakh drawn on Indian overseas bank Rajouri Garden. It means that Rs. 2 lakhs were advanced to accused Gomti Dutta in lump sum on the same date. Considering that the accused used to issue cheques of the amount of loan on the same day when loan was advanced then the accused ought to have issued a cheque for a sum of Rs. 2 lakh. But there is not even a single cheque drawn for a sum of Rs. 2 lakh which contradicts the complainant's aforesaid admission and thus falsify her version. However the complainant immediately came to her rescue by improving her version that she paid 5 cheques of Rs.40000 each to the accused Gomti Dutta, in order to cover the contradiction as discussed above, by spreading the amount of Rs. 2 lakhs over 5 cheques of Rs. 40000 each which will substantiate the complainant's case as there are only 5 cheques of Rs.40,000 available on record out of which four are dated 29.12.06 and one is dated 19.12.06. It indicates that either the complainant is falsely deposing that she had given one cheque of Rs 2 lacs or five cheques of Rs 40,000/- each. Further, if we consider both/either of the statements of the complainant to be true, it leads to the establishment and admission of the defence of the accused that the accused had taken Rs 2 lacs from the complainant. If this version of complainant is believed to be true then the loan of Rs.2 lakh which was advanced for a period of one year must have been advanced on 29.12.2005 or 19.12.2005 as only then the amount can become due on 29.12.06 or 19.12.06 , which substantiate the version of the accused that a loan of Rs. 2 lakh was taken in the year 2005 against which cheques in question were issued in blank as security and the complainant has 20/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta misused the same. Considering either way the complainant's version is full of material inconsistencies, contradictions and improvements. 13.4 In the civil suit bearing no. 168/2007 which has been filed in respect of same transactions and same cheques the complainant at one place admitted that she gave a personal loan of Rs. 5,15,000 to accused Gomti Dutta which was advanced in first month of year 2006 whereas in later part of the same cross examination complainant contradicted herself by stating that she extended the aforesaid loan of Rs. 5,15,000 in piecemeal as per the cheques given by Gomti Dutta in the month of December 2006 and not lump sum. It means that loan of Rs. 5,15,000 was advanced to accused Gomti Dutta in installment in the month of December 2006 which brings whole of complainants version of advancement of loan, if any, to a naught. Similarly, in cross examination conducted on 4.10.2008 the complainant admitted that Gomti Dutta took loan of Rs. 5,15,000 in first month of year 2006 but the complainant didn't remember the exact date of advancement of loan. This admission indicates that the loan of Rs. 5,15,000 was given in lump sum and not from time to time as alleged by the complainant in the complaint. It shows that the complainant is making the false statements either in the complaint or in the cross examination which disprove the story of advancement of loan in the year 2006.
13.5 The complainant in her cross examination denied to have received any amount either as principle or interest and also the issuance of any receipt with regard thereto. The complainant on a question put to her on behalf of the accused voluntarily made a statement that the question of receiving the payment does not arise as the accused had never paid any amount to the complainant. While, infact, the complainant had executed various receipts of different dates acknowledging the acceptance of interest and/or principle amount of the loan advanced to the accused by the complainant which were brought on record by the accused and are exhibited as EX. CW -1/A2 to EX.CW-1/A17.
It is pertinent to mention here that the complainant was confronted with EX.CW-1/A2 which is duly signed receipt of acknowledgment of acceptance of different amounts towards the interest and otherwise, issued by the complainant 21/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta bearing her signature at point A to E. But the complainant came out with a new version that this receipt did not belong to the complainant rather they are issued by the complainant in the names and on behalf of Amita, Manoj, Chachi, Deepu, Gudiya etc who are the relatives of the complainant, who had also advanced loan to the accused. In fact, the perusal of EX.CW-1/A2 along with EX.CW-1/A3 and EX.CW-1/A16 clearly indicates the acknowledgment of receipt of interest and principle amount by the complainant herself and that too from the accused. However, there are one or two receipts incorporating the names of Amita, Manoj, Chachi, Deepu, Gudiya etc for whom money was purported to be accepted by the complainant, which thus confirm the version of the accused that some receipts were issued by the complainant on the pretext that the complainant had taken money from these peoples, for advancing the same to the accused and this money shall be given to them so, the receipt were executed in the name of these persons.
It is worthwhile to mention that the complainant had not stated the factum of the advancement of the loan by the relatives of the complainant to the accused, either in the complaint, affidavit or in the legal notice. In her cross examination the complainant admitted that she had taken Rs 50,000/- from her sister namely Amita and also took Rs 30,000/- from her younger sister Gudiya alias Rekha and further took Rs 60,000/- from her mother and gave the same to the accused herein. But, the complainant did not bring her sisters and mother in the witness box. The complainant also admitted that she had taken money from the above named persons only two times. However, in the nine complaint cases filed by the complainant against one Sh. Vikas Marwah, proceedings of which have been proved by the accused. the complainant admitted in her cross examination that she had received Rs 1.5 lacs each from her sisters namely Amita and Gudiya alias Rekha and Rs 2,80,000/- from one Mr. Jacky. Further, the complainant in her cross in the complaint case against Sh. Vikas Marwa deposed that both the above named sister gave this loan to her as their husband are fully employed. However, she also admitted in the same cross examination that both the above named sisters of the complainant advanced money to the complainant out of their personal savings and also by taking loan from one 22/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta Saini Society. In the instant case, the complainant deposed in her cross examination that the accused had herself taken money from the relatives of the complainant.
Perusal of the statements of the complainant during her cross examination in all the present connected cases and also in her cross examination during the complaint case against Sh. Vikas Marwah reveals that the complainant is constantly lying and contradicting her own statement one after another. This is also confirmed from the proceedings of the case in hand, wherein, the complainant in the cross examination admitted that the accused had herself taken money from the relatives of the complainant and being the neighbor of the complainant returned the same to the complainant, which the complainant received on behalf of her relative. However, in her cross examination in the instant case on a question put to her by the accused, the complainant admitted that she had arranged and borrowed money from her two sisters namely Amita and Gudiya alais Rekha and also from her mother to be advanced to the accused.
During cross examination, the complainant initially took the stand that she took money from her relatives for advancing loan to accused. The complainant never took the stand that loan was advanced to the accused persons in the name of her relatives or that the accused persons took loan from her relatives directly. But upon being confronted with the receipts the complainant concocted this new story that the accused persons took loan from all the aforenamed relatives of the complaint. This fact, which was brought into picture, by the complainant during her cross examination is not only an afterthought and concoction but is sufficient to infer that no loan was advanced by the relatives of the complainant which further infers that the complainant was not in a position to advance the aforesaid loan in her individual capacity and thus shatters the version of complainant.
13.6 It is beyond imagination that when a person himself had lent money to a borrower and the borrower has not paid the money towards the loan of that person but that borrower is paying the money towards the debts of other borrowees, to that person (being the relatives of that person), then how that person issued acknowledgment slip to that borrower acknowledging the receipt of payment towards 23/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta the satisfaction of the loan of the relatives and not towards the satisfaction of her own loan. In the normal circumstances, a person firstly accepts the money towards the satisfaction of his own loan and after that towards the loan of his relative. But in the instant case, the situation is vice a versa, which can not withstand the test of reasonableness expected out of an ordinary prudent man.
The complainant had acknowledged the acceptance of loan of Rs 2 lacs at the top of EX.CW-1/A3 and also for Rs 10,000/- towards the interest of the same. However, the writing on the top of the receipt was denied by the complainant to be her own handwriting but the same was not challenged in the cross examination conducted on 22.010.2008 in civil suit no 168/07. so, the mere denial of writing which was earlier admitted in the civil suit can not help the complainant. This exhibit and its contents as proved affirm the defence of the accused that cheques in question were issued as security against loan of Rs. 2 lacs, which was advanced by the complainant in the year 2005.
The complainant in cross examination conducted on 06.04.2011, has feigned confusion in identifying her own signatures. On one hand, the complainant said that the complainant had not issued the slip/ receipt while on the other hand the complainant said that it might be her signature. It is also pertinent to mention here that complainant is very much confident regarding the receipt/ acknowledgment slip incorporating the name of her relatives but she seems to be hesitant in admitting her own receipts/acknowledgment slip, the complainant either disputed the execution or contents thereof but regarding the receipt/ acknowledgment slip of her relatives, the complainant is very much confident about the execution, signatures and contents etc thereof. It shows that the complainant is trying to misguide the court and concealing the material truth to substantiate her own claim which has been rendered false due to complainant's own contradictory and self-destructive statements made during the cross examination in the present connected cases, aforementioned civil matter and another complaint case u/s 138 of Negotiable Instruments Act against a person namely Sh. Vikas Marwah.
24/33CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta 13.7 The complainant further stated in her cross examination that the accused had not paid any amount towards the loan or interest thereof to the complainant. On the contrary, it is evident from the receipts issued by the complainant that the accused had been paying money (towards the principle amount as well as interest) to the complainant on various occasions. It again creates serious doubt an the amount of loan advanced as well as sought to recovered by the present complaints as undoubtedly the amount mentioned in the receipts ought to have been deducted to reach the correct figure of the actual amount due, which the complainant did not do as is evident from the above false depositions.
14. The complainant had admitted in her cross examination dated 07.06.2007 that she had taken a loan of Rs 10 lacs from ICICI Bank, Kotak Mahindra Bank, HSBC Bank for business purposes. This shows that her financial condition was not very sound. The complainant also admitted that she had spent Rs 8 lacs on the medical treatment of her brother. The complainant admitted that she had advanced approximately Rs 10,50,000/- to one Sh. Vikas Marwah besides the loan of Rs 5.65 lacs to the present accused persons. However, the complainant failed to show from where she had arranged approximately Rs 16 lacs to be disbursed as loan to others when she herself had taken a loan of Rs 10 lacs. Further, the perusal of Income Tax Return brought on record by the accused pertaining to assessment year 2002-2003, 2003-2004, 2004-2005, 2006-2007, 2007-2008 reveals that the net taxable income of all the financial year taken together is not more than Rs 5 lacs. The complainant also admitted that her business which is joint with her husband has been stopped due to illness of her brother and further stated that the complainant and her husband had no other source of income except profits from their business.
So, it is clear from above discussion that a person who is in such a financial constraint that she herself had taken loan from various banks, can not advance loan to the tune of approximately Rs 16 lacs. It is beyond imagination that a person having wealth of five lacs (as per ITR) in totality who had taken a loan of Rs 10 lacs, and left with only 7 lacs after spending Rs 8 lacs on the treatment of her brother, had advanced the loan of Rs 16 lacs. It shows that complainant was not having the 25/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta financial capacity to advance the present loan which in turn falsifies the entire case of the complainant, thereby probablising the defence version.
15. Accused has replied the legal notice, wherein the entire version of the defence have been mentioned. Perusal of the reply to the legal notice and the dates on which it was dispatched to the complainant revealed that the reply must have been served upon the complainant prior to the institution of the complaint. However the complainant concealed the existence of the reply as the same did not find any mention in the complaint or the affidavit. But the complainant admitted the service and contents of legal notice during her cross examination conducted on 06.04.2011. Thus, the complainant admitted the contents of the notice and did not controvert the contents by explaining or clarifying that contents thereof are false and frivolous. By this omission the complainant is deemed to have admitted the defence version as contained in reply to the notice of the complainant, given by the accused, which proves to be the last nail in the already tumultuous coffin of the complaint.
16. Accused took the defence that complainant is a money lender which was denied by the complainant. Complainant admitted that she advanced friendly/ personal loan for sum of Rs 5.65 lacs to accused Keshwai Dutta and her mother Gotami Dutta. Accused got it admitted that the complainant advanced loan of approximately Rs 10.5 lacs to another person namely Sh. Vikas Marwah. So, it can be said that the complainant was advancing money to various people. Complainant denied to have advanced money on interest. But various receipts brought on record by the accused established that the complainant was receiving interest also which proves that complainant was lending money on interest and the loans were not merely friendly loans. Even, otherwise, no reasonable person on earth would lend money to the tune of Rs 15-16 lacs to others, just for the sake of friendly relations without charging any interest that too when the financial condition of the lender is itself poor as in the present case. The money lending business aspect of the complainant's case is further evident from the manner in which the complainant arranged the funds for advancing the same to accused persons and one other 26/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta person namely Sh.Vikas Marhwa i.e complainant borrowed money from her relatives for advancing the same to accused person as well as complainant took various loans from banks and other financial institutions which must have charged hefty amount of interest and by necessary implication this fund must have been diverted to accused persons, though it was denied by complainant. As the complainant's income from other admitted sources was hardly sufficient to even meet the needs of complainant's business then the talk of advancing such huge amount from this sparse income is unbelievable as the same is impossible. All these circumstances necessarily imply that complainant is a seasoned moneylender who arranged the funds for lending, from other sources on interest which was necessarily lent to accused persons and others on interest as lending money on charity in such circumstances is beyond the imagination of reasonable and prudent man. So, it is held that the complainant is a money lender advancing loan to people on interest without having any license from the authority concerned, as the complainant admitted that she does not have a money lending license.
16.1 During the cross examination, the complainant, disclosed altogether a new fact that though the complainant had got executed one pro note signed by the accused at the time of grant of loan, yet the same was not placed on record by the complainant. This fact clearly indicates that the complainant time and again concealed the truth and misleads the court. Further, it is made clear that in the garb of friendly loans, the complainant is lending money to the people and like a regular/professional money lender got prepared a loan file thereby executing all the necessary documents and also charging an exorbitant rate of interest from the borrowers. Further, the documents exhibited as EX. CW-1/A2 to as EX. CW-1/A16 is also indicative of the fact that the complainant is receiving interest on account of loan disbursed by her to various peoples and in the instant case the accused and her daughter.
16.2 It is pertinent to mention that the complainant carried her business so intelligently that she not only used to tell her clients that money is being advanced on 27/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta behalf of her relatives but even received the money back by mentioning the names of her relatives against the amounts received so as to avoid liability under the money lender's Act. The version of complainant that money was advanced on behalf of her relatives and so the receipts was also made in name of these relatives was challenged by the accused persons but the complainant did not lead evidence by calling those relatives to remove the clouds of doubt hovering over her version to her own peril. This omission also indicates that complainant has deposed falsely regarding the amounts lent and received back on behalf of her relatives.
In view of aforesaid discussion, it is established that the complainant is a moneylender without license.
16.3 The complainant admitted during her cross examination that she is not having any license from any authority for carrying on the business of money lending. Dealing in the business of money lending without license is illegal. Accordingly, the amount lent by the complainant in furtherance of her illegal business of money lending is beyond the ambit of legally recoverable debt for which complaint under section 138 Negotiable Instrument Act cannot lie. So, the loan amount cannot be legally enforced and recovered by way of present complaint.
The legal position regarding money lenders is clearly enumerated by the Hon'ble Supreme Court in P.Vaikunta Shenoy & Co. Vs P. Hari Sharma, I (2008) BC 263 (SC) wherein the Hon'ble Supreme Court observed that in the money lending business the object of the money lender is to earn interest on the loan he has advanced.
It is pertinent to mention at this juncture, the observations of Hon'ble High Court of Andhra Pradesh in the judgment titled as Krishnam Raju Finance vs. Abida Sultana and anr, IV (2004) BC 146 which are as follows:-
"If the person is disbursing loan and is engaged in the business of money lending and if he is not possessing the license, for lending money, under the law, such a person can not claim or recover debt or liability from his debtors. This is for the reason that such a debt does not stand the scrutiny of legally recoverable debt, under section 138 of N.I. Act.28/33
CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta Further once the complainant stated to be a money lender and does not have licence for such business, it could not have maintained a legally enforceable right for recovery of the amount by filing a suit."
Further in view of the judgment of Hon'ble High Court of Andhra Pradesh in Baba Finance Corporation Vs Mohd. Nayeem and Anr, 1997 (1) ALD (Cri.) 719 (AP) it follows that :-
"Once a person is engaged in the business of money lending and the money is advanced by him without obtaining a licence for the same, such a person is not entitled to recover the loan lent by him as the loan disbursed by him is illegal."
Considering the aforesaid judgments and present factual matrix, this court is of the view that liability in respect of the amount advanced by the complainant without having money lending license can not be enforced by way of present complaint u/s 138 Negotiable Instrument Act.
17. Considering the version of the complainant to be true that accused had issued 15 cheques and her daughter had also issued one cheque towards the satisfaction of loan, then either the accused might have issued 15 cheques, of different months as installments, or might have issued one single cheque of entire amount. It is difficult to understand that accused persons had issued one cheque dated 09.12.2006, three cheques dated 14.12.2006 two of which are drawn for same amount, one cheque dated 15.12.2006, one cheque dated 19.12.2006, two cheques dated 20.12.2006 of same amount, two cheques dated 21.12.2006 of same amount and lastly five cheques dated 29.12.2006 of same amount.
There is no point in issuing 15 different cheques to be encashed within a short period of twenty days. Further, supposing that the accused might have done so, then in normal circumstances when cheques are issued they are issued consecutively, serial wise in ascending order and not one cheque from the starting, other from the middle and another from the last and then from the middle and another from the front 29/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta and so on. In the present complaint the cheque bearing no. 266931 is purported to be issued on 29.12.2006, while cheque no. 266932 was issued on 19.12.2006 and again cheque bearing no. 266938 was having date 14.12.2006 and cheque bearing no. 266942 was having date of 09.12.2006. Which shows that the signed cheques in question were issued blank to the complainant and the same were got filled by the complainant subsequently, in order to misuse the same.
18. It is the case of the complainant that she advanced a sum of Rs. 5.15 lacs to the accused from time to time. It is also admitted by the complainant that the loans advanced by her to the accused & other persons have not been shown in income tax returns. Undoubtedly, if the version of complainant is believed , amount advanced by complainant to accused was large amount not repayable within few months as the same is spread over whole of the year 2006 which covers two financial years i.e. year ending on 31 March, 2006 & new financial year commencing from 1 st, April 2006. In such a case, the failure to show the amount in Income tax return has been declared to be sufficient to rebut the presumption u/s 139 N.I.Act as per observation of Hon'ble Bombay High Court made in Para 7 of judgment titled as Sanjay Mishra Vs Ms. Kanishka Kapoor @ Nikki & Anr, 2000 CRI.L.J.3777. So, considering the aforesaid judgment & present factual matrix, presumption u/s 139 N.I.Act stands rebutted and the complaint is liable to be dismissed on this ground.
19. Considering the version of the complainant to be true that the accused persons had issued all the 16 cheques towards the repayment of loan of Rs. 5,65,000/- taken by them from time to time, still it can not be expected out of the complainant that she would have accepted all the cheques issued for the month of December against loan advanced on various/ different dates as it is very difficult even for well off person to discharge such a huge liability within a span of 20 days, then expecting from accused persons, who admittedly were not in good financial condition because of which only they would have approached the complainant for loan, that they would have discharged the liability in such a small time is itself highly unreasonable and beyond imagination.
30/33CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta
20. The complainant failed to provide the details as to when and what amount was paid, which disproves the pleadings of the complainant. It is further impossible to understand that the complainant advanced the loan in such a manner that all the due dates fell in the month of December,2006 as a normal person would have not done so. All these circumstances are so overwhelming that presumption u/s 139 Negotiable Instrument Act stands disproved and the burden shifts back upon the complainant which she failed to discharge.
21. Considering the above discussion it is thus clear that the cheque in question was issued as security against the loan transaction of accused for sum of Rs 2,00,000/- and not towards the repayment of the said loan transaction which have been misused by the complainant. As accused has successfully raised a probable defence which creates grave doubt about the existence of legally enforceable debt or liability and on the overall version of complaint, the prosecution must fail.
22. No doubt complainant is well within her right to rely upon mandatory presumptions of law. However, the same are rebuttable even by showing a preponderance of probability and if certain defects are established by the accused, the complainant should try other ways to support her case. In the present case, however, the complainant did not make such efforts to her own peril. The complainant has to bear the consequences. No blemishes in the story of the accused can give a right to the complainant to claim that her story should be preferred. It is well settled law that if from the facts and circumstances two views are possible, the one which makes no interference in life and liberty i.e. the one which goes in favour of the accused should be preferred.
23. From the above discussion, this court is of the considered opinion that accused has successfully rebutted the mandatory presumptions of law arising in favour of the complainant. Viewed from any angle, as complainant failed to 31/33 CC No. 757/A/11 Ms. Kajal Wahi Vs Ms. Gomti Datta discharge the burden which was shifted on her, no criminal liability could be fastened upon the accused. Accordingly, the complaint is hereby dismissed.
24. This court accordingly returns a finding of not guilty.
25. The accused is hereby acquitted. Surety is discharged. Bail Bond/Surety Bond is cancelled. Endorsement be cancelled and FDR be returned, if any. Original documents, if any be returned after retaining its photocopy on record.
File be consigned to Record Room.
Announced in the open court VIPLAV DABAS
today i.e. 24.12.2011 Metropolitan Magistrate
North/Delhi
24.12.2011
32/33
CC No. 757/A/11
Ms. Kajal Wahi Vs Ms. Gomti Datta
CC No.757/A/11
24.12.2011
Present:- Complainant with Ld. Counsel.
Accused with Ld. Counsel.
Vide separate judgment of even date announced in open court the accused is acquitted. Complaint is hereby dismissed. Surety is discharged. Bail Bond/Surety Bond is cancelled. Endorsement be cancelled and FDR be returned, if any. Original documents, if any be returned after retaining its photocopy on record.
File be consigned to Record Room.
VIPLAV DABAS MM/North/Delhi 24.12.2011 33/33