Delhi District Court
Praveen Kumar vs Seema Cc No..5004944/16 Page No.1/15 on 29 November, 2019
IN THE COURT OF SHRI SUKHMAN SANDHU, MM (NI
ACT)-01, SOUTH-WEST DISTRICT: NEW DELHI
New CC No.5004944/16
Under Section 138 of N.I. Act
In the matter of:
PRAVEEN KUMAR
s/o Shri Satish Chand,
R/o House no.377,
Village Baprola
Delhi.
... Complainant
Versus
SEEMA
W/o Shri Dhiraj Yadav,
R/o RZ-75/284, Gali no.1.
Behind Dimple Public School,
West Sagarpur,
Delhi.
... Accused
Date of Institution : 03.10.2016
Date on which judgment was reserved : 29.11.2019
Date of Judgment : 29.11.2019
JUDGMENT
1. The present case under Section 138 Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act,) arises PRAVEEN KUMAR VS SEEMA CC NO..5004944/16 PAGE NO.1/15 out of a complaint alleging, inter alia, that on 10.06.2016, the accused approached the complainant and requested to lend her a sum of Rs.1,50,000 without any interest, for a period of one month only, as the accused was in dire need of money. On account of friendly relations, the complainant advanced the accused a friendly loan of Rs.1,50,000/-. The accused assured the complainant to repay the entire loan amount within a period of one month. After expiry of period of one month, an oral demand was made by the complainant on 15.07.2016 to repay the loan amount. In order to discharge the abovestated liability, the accused issued a cheque bearing no.000005 dated 15.07.2016 for Rs.1,50,000/- drawn on Bank of Baroda, Nangal Raya, Delhi -110 046 (Ex.CW1/A) (hereinafter referred to as 'Cheque in question'). The same, on presentment by the complainant, was returned by the bank with endorsement, 'Funds Insufficient', vide return memo dated 10.08.2016 (Ex.CW1/B). Constrained, the complainant sent a legal notice dated 29.08.2016, demanding the cheque amount of Rs.1,50,000/-. Thereafter, on non-payment of the amount, the present complaint was filed.
2. On the accused entering appearance, notice under Section 251, Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), was framed against the accused, to which she pleaded not guilty. In her plea of defence recorded in the abovestated notice, the accused admitted the signatures on the cheque in question to be hers. She furthered deposed that she had issued the cheque in question in blank signed condition to the complainant as security as she had taken a shop on rent from PRAVEEN KUMAR VS SEEMA CC NO..5004944/16 PAGE NO.2/15 the complainant. She denied having taken any loan from the complainant. The accused further denied having received the legal notice.
3. The complainant chose to examine himself as sole complainant witness. The complainant adopted his pre- summoning evidence tendered by way of affidavit at the post summoning stage. The accused was granted permission to cross- examine the complainant, however, nothing substantial could be elicited from the cross examination of the complainant which could aid the defence of the accused or create doubts on the credibility of the witness.
4. The entire evidence was put to the accused in her statement recorded under Section 313 Cr.PC, wherein she backtracked from the stand taken by her in the notice framed u/s 251, Cr.PC, and denied acquaintance with the complainant. She deposed that she had taken her shop on rent from one Jeetu, and the cheque in question had been handed over to said Jeetu, in blank signed condition as security. The accused chose to examine herself and her husband as defence witnesses. The accused deposed on similar lines as her statement recorded u/s 313 CrPC, in her deposition as DW1, and further added that said Jeetu had assured her that he would return the cheque in question after she would vacate the shop, however, on vacation of the shop, the said Jeetu, failed to return the cheque to her and told her that it had been misplaced.
5. The accused denied the various suggestions put to her PRAVEEN KUMAR VS SEEMA CC NO..5004944/16 PAGE NO.3/15 in her cross examination and further sought to rely upon a photograph "Mark X", allegedly indicating the shop taken by her on rent from the said Jeetu. However no steps were taken by the accused to prove the said photograph "Mark X", despite categorical suggestion with regard to its authenticity being put to the accused. The accused also admitted to not knowing the full name or residential address of the said Jeetu. The accused further admitted to the factum of the absence of any rent agreement with the said Jeetu.
6. DW2, the husband of the accused deposed on similar lines and stated that it was him who had handed over the cheque in question in blank signed condition to the said Jeetu. In his cross examination DW2 admitted to not remembering the exact date on which he alongwith his wife had taken the shop on rent from Jeetu.
7. Final arguments on behalf of both the parties were heard wherein it was submitted by the Ld. Counsel for the complainant that in view of the signatures being admitted by the accused presumption envisaged in Section 118 r/w Section 139 of the NI Act, arises in favour of the Complainant and the accused has been unable to rebut the same and has failed to prove the defense setup by her in view of the contradictory stands taken by her in the notice framed u/s 251 and further depositions u/s 313 and as DW1.
8. Per Contra, it has been submitted by the Ld. Counsel for the accused that there were no friendly relations with the PRAVEEN KUMAR VS SEEMA CC NO..5004944/16 PAGE NO.4/15 complainant and that the cheque in question had been misused by the complainant in connivance with one Jeetu and that by virtue of the photograph "Mark X" the accused has proved her defence.
9. Law regarding the ingredients of the offence punishable Section 138 NI Act is well settled. It was held by the Hon'ble Apex Court in the case of 'K. Bhaskaran v. Sankaran Bala' [1999 (7) SCC 510], that ''Offence under section 138 of the NI Act, can be completed only with the concatenation of a number of facts namely,
(i) drawing of the cheque;
(ii) presentation of the cheque to the bank;
(iii) returning the cheque unpaid by the drawee bank;
(iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount;
(v) failure of the drawer to make payment within 15 days of the receipt of the notice''.
10. It was further held in the abovementioned case that:-
''As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act, can be legally be inferred that the cheque was made or drawn for consideration, on the date which the cheque bears. Section 139 of the Act enjoins the court to presume that the holder of the cheque received it for discharge of any debt or liability. The burden was on the accused PRAVEEN KUMAR VS SEEMA CC NO..5004944/16 PAGE NO.5/15 to rebut the aforesaid presumption''.
11. File perused and arguments heard. After going through the record and hearing submissions advanced on behalf of the parties, two issues arise for consideration, firstly whether the legal demand notice was validly served upon the accused and secondly whether the cheque in question has been issued by the accused in discharge of legally enforceable debt / liability to repay the alleged loan of Rs.1,50,000/-.
12. Let us begin by examining first, the defence of non- service of legal notice. The accused has denied that she had received the legal demand notice sent by the complainant and therefore, it has been argued on behalf of the accused that non service of legal demand notice on the accused would inexorably result in the acquittal of the accused. However, this defence of the accused has to fail for more than one reason. Accused has denied the service of legal notice, but quite notably, has not disputed the correctness of her address as appearing on the legal notice. Perusal of record shows that the address mentioned on the legal notice and the address furnished by the accused at the stage of framing of notice, statement under section 313 CrPC and at the stage of defence evidence are the same. This address on the legal notice once having been shown to be correct address of the accused and the legal notice having been dispatched by registered post, a presumption of due service arises (in view of Section 27 of General Clauses Act and Section 114 of Indian Evidence Act) and now it was incumbent on the accused to lead evidence to prove that the notice was not served on her. Not PRAVEEN KUMAR VS SEEMA CC NO..5004944/16 PAGE NO.6/15 even an iota of evidence has been brought on record by the accused to displace the presumption of due service.
13. A mere denial of the service of legal notice, thus, would not ipso facto rebut the presumption of due service. In any event, in view of the authoritative Judgment of Hon'ble Supreme Court in C.C. Alavi Haji vs Palapetty Muhadmmed and Ors. (2007) 6 SCC 555, the rigour of the requirement of service of legal notice has been reduced to an almost vanishing point in Section 138 NI Act jurisprudence. The Hon'ble Supreme Court while discussing the true intent behind the service of legal demand notice as a precursor to the launch of prosecution has quite categorically held that the service of summons of the court is opportunity enough for the accused to pay the cheque amount and evade prosecution, any accused who fails to pay the amount within 15 days of the service of summons, clearly cannot shield himself behind the technical demand of non-service of legal notice. The relevant extract of the decision deserves to be quoted in extenso :-
''17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of Act, make payment of the cheque amount and submits to the court that he had made payment within 15 PRAVEEN KUMAR VS SEEMA CC NO..5004944/16 PAGE NO.7/15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court alongwith the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C.Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso, would defeat the very object of the legislation''.
14. The non service of legal notice challenge having been met, let us now turn to the core issue in this case and examine ''whether the cheque in question can be said to have been issued in discharge of legal liability or not''.
15. At the stage of final arguments, it has been vociferously argued by the counsel for the complainant that the presumption under section 118 read with Section 139 of the NI Act, arises in favour of the complainant and the accused has failed to rebut the said presumption. At this stage it would be relevant to refer to Judgment of Hon'ble Apex Court rendered in, 'Basalingappa v. Mudidasappa', AIR 2019, SC 1983, wherein the principles in relation to the presumption raised under section 118 (a) read with Section 139 were summarised as under :
PRAVEEN KUMAR VS SEEMA CC NO..5004944/16 PAGE NO.8/15 "23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:-
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the
accused to rely on evidence led by him or
accused can also rely on the materials
submitted by the complainant in order to raise a probable defence. 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 they rely.
(iv) That it is not necessary for the accused to
come in the witness box in support of his
defence, Section 28 139 imposed an
evidentiary burden and not a persuasive
burden.
PRAVEEN KUMAR VS SEEMA CC NO..5004944/16 PAGE NO.9/15
(v) It is not necessary for the accused to come in
the witness box to support his defence.
24. Applying the preposition of law as noted above, in facts of the present case, it is clear that signature on cheque having been admitted, a presumption shall be raised under Section 139 that cheque was issued in discharge of debt or liability."
16. Applying the principles as elucidated above to the facts of the case at hand, wherein, the signatures on the cheque in question being admitted by the accused, the present case is thus, a fit case to draw the presumption envisaged under Section 118 read with Section 139 of the NI Act, in favour of the complainant. Now, let us begin to examine whether the accused has been able to discharge the burden upon her on the scale of preponderance of probabilities.
17. It was further observed in the abovementioned case as hereunder:-
"17. In Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513, this Court again examined as to when complainant discharges the burden to prove that instrument was executed and when the burden shall be shifted. In paragraph Nos. 18 to 20, following has been laid down:- "18. Applying the definition of the word "proved" in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a PRAVEEN KUMAR VS SEEMA CC NO..5004944/16 PAGE NO.10/15 presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 19 19. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. 20. ........................The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-
PRAVEEN KUMAR VS SEEMA CC NO..5004944/16 PAGE NO.11/15 existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist......"
18. A cumulative analysis of the above decision reveals that though the burden on the accused is that of preponderance of probabilities, he need not even enter the witness box in support of his defence and may rely upon the material submitted by the complainant in order to raise a probable defence. The accused is also not expected to disprove the existence of the consideration and debt by leaving direct evidence because of the impossibility of adducing negative evidence. However, as has been categorically held by the Hon'ble Supreme Court, a bare denial of the passing of the consideration and existence of debt, would not serve the purpose of the accused. Something must be brought on record for getting the burden of proof shifted to the complainant whether it be in the form of evidence led by him or by pointing out the inherent improbabilities in the case as set up by the complainant.
PRAVEEN KUMAR VS SEEMA CC NO..5004944/16 PAGE NO.12/15
19. Now, let us begin to examine, if the accused has on the scale of preponderance of probabilities been able to rebut the presumption envisaged under Section 118 (a) read with Section 139 of NI Act. When the accused entered the witness box, she could not, in support of her averment that she had taken a shop on rent from one Jeetu and the cheque in question was issued to said Jeetu as security, adduce, even an iota of evidence, much less cogent, other than her bare averment. On categorical suggestions being put to the accused, she admitted that she had no written rent agreement regarding the shop alleged to have been taken on rent by her from said Jeetu. The husband of the accused, DW2 who deposed to having taken on rent the shop alongwith his wife (the accused), could not remember the date of commencement of the alleged tenancy, nor the date on which the cheque in question was handed over by him to said Jeetu. The accused further admitted to not knowing the full name or residential address of said Jeetu. No steps were taken by the accused to prove her abovestated defence. No efforts were made by the accused to get said Jeetu examined as a witness. No particulars, documents or evidence in support of the alleged tenancy were brought forth by the accused in the defence led by her, in order to lend authenticity to her version.
20. The only piece of evidence sought to be relied upon by the accused was a photograph 'Mark X', allegedly of the shop the accused had taken on rent, however said photograph cannot be relied upon as the same was not proved by the accused. Even so, had the photograph Mark X, been proved by the accused, the PRAVEEN KUMAR VS SEEMA CC NO..5004944/16 PAGE NO.13/15 same would not even in that case have fortified the defence of the accused, as a photograph of a shop, cannot, ipso facto, prove tenancy. Further, suspicion on the truth of the defence of the accused gets murkier on account of the different stand taken by the accused at the first instance when the notice u/s 251 was framed against her, wherein, her stand was that she had issued the cheque in question as security to the complainant as she had taken a shop on rent from the complainant. This defence of the accused was jettisoned at the subsequent stages. Therefore besides not being able to prove her defence, the accused has given different versions of her defence before this court. A cumulative analysis, thus leads to the inescapable conclusion, that the accused has failed in proving the defence as put forth by her even on the scale of preponderance of probabilities.
21. Nevertheless, the burden upon the accused could also be discharged by the accused pointing out inherent improbabilities in the case as advanced by the complainant. In the cross examination of the complainant, nothing substantial could be elicited from the complainant, the complainant stuck to the version as put forth by him in the complaint and in his affidavit tendered in evidence.
22. The accused has, thus, sought to set up a defence based upon nothing more than her mere averments and a bare denial of the case of the complainant, which is grossly insufficient in order to rebut the presumption in favour of the complainant. Nothing probable has been brought on record by the accused for getting the burden of proof shifted on to the complainant.
PRAVEEN KUMAR VS SEEMA CC NO..5004944/16 PAGE NO.14/15
23. In view of the above, the accused has miserably failed to discharge the burden upon her even on the scale of preponderance of probabilities, on account of being unable to prove the defence as set up by her or by pointing out any improbability in the case of the complainant. Therefore, in my opinion, the accused has not succeeded in rebutting the presumption of legal liability. The accused has failed to punch holes in the case of the complainant. The complainant has, with the aid of, inter alia, evidence led and the presumption of legal liability under Section 118 read with Section 139 of the NI Act, in his favour, successfully proved the basic ingredients of the offence under Section 138 NI Act.
24. Resultantly, the accused Seema stands convicted for the offence under Section 138 NI Act. Let the convict be heard separately on the quantum of sentence.
25. Let a digitally signed copy of the Judgment be supplied to the accused, free of cost, and a copy of the same be placed on record.
Decided on 29.11.2019 Announced in open court.
Digitally signed by SUKHMAN SUKHMAN
SANDHU
SANDHU Date: 2019.11.29
16:49:53 +0530
(SUKHMAN SANDHU)
MM (NI Act)-01/SW/DWK
New Delhi/29.11.2019
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