Delhi District Court
Cc No.6925-2021 Moneywise Financial ... vs . Pranjali Trikha Page No.1 Of 21 on 7 August, 2023
IN THE COURT OF SH. HARJOT SINGH
M.M.- 01, (N. I. ACT), DIGITAL COURT, PATIALA HOUSE COURT,
NEW DELHI.
JUDGMENT
CC No.6925-2021 Moneywise Financial Services Pvt. Ltd.
Through its Authorized Officer Mr. Puneet Kumar Goyal Registered office at:
11/6 B, 2nd Floor Shanti Chamber, Pusa Road, New Delhi-110005 ........................................................ Complainant Versus Pranjali Trikha L-006, Plot No-06, Agrasen Apartment, IP Extension Patparganj New Delhi Delhi-110092 ........................................................Accused
a) Unique/new case number : DLND02-019287-2021
b) Name of complainant : Moneywise Financial Services Pvt. Ltd.
c) Name of accused person(s) : Pranjali Trikha d) Offence complained of : Under Section 25 of Payment and Settlement Systems Act, 2007 e) Plea of accused person(s) : Pleaded not guilty f) Final order : ACQUITTAL CC No.6925-2021 MONEYWISE FINANCIAL SERVICES PVT. LTD Vs. PRANJALI TRIKHA Page No.1 of 21 Harjot Digitally signed by Harjot Singh Date: 2023.08.07 Singh 17:25:13 +0530 g) Date of such order : 02.08.2023
BRIEF STATEMENT OF THE REASONS FOR THE DECISION (As mandated u/s 355(i) of the Code of Criminal Procedure, 1973.) Case of the complainant
1. Vide this judgment, this Court shall dispose off complaint for offence punishable under Section 25 of Payment and Settlement Systems Act, 2007 filed by the complainant against accused.
2. The present Judgment is a result of culmination of trial initiated on the complaint filed by the complainant. It is stated that the present complaint is being filed through Sh. Puneet Kumar Goyal, (Officer). It is stated that the accused person has availed financial facility from the complainant company, as per the terms of the arrangement letter as well as loan agreement. It is further stated that the accused initiated to transfer the fund/EMI through Electronic Fund Transfer as per standing instructions/mandate. That the electronic fund was initiated for payment for Rs. 28,05,233/- to complainant for discharge in part of her business loan. It is further stated that in discharge of her liability accused provided the complainant Automated Cleaning House (ACH), Loan Account No. 605810110012713, dated 03.03.2020, for an amount of Rs. 20,19,734/-, Drawn on Bank of India, which is Mark B.
3. Complainant presented the ECS/ACH in question to his banker for encashment but the same was returned unpaid with the endorsement "Balance Insufficient" vide separate return memos dated 30.09.2021 and 01.10.2021 Ex.
CW 1/C (Colly).
CC No.6925-2021 MONEYWISE FINANCIAL SERVICES PVT. LTD Vs. PRANJALI TRIKHA Page No.2 of 21 Harjot Digitally signed by Harjot Singh Singh Date: 2023.08.07 17:25:17 +0530
4. The complainant demanded the above said amount from the accused but she did not make the payment. Thereafter, complainant sent a legal notice dated 12.10.2021 Ex. CW1/D through speed post. The speed post postal receipt is Ex. CW1/E and tracking report along with 65 B certificate is Ex. CW 1/F (Colly). The accused failed to make the payment of the ECS/ACH amount to the complainant within the stipulated period. Hence, the present complaint case was filed.
5. Pre summoning evidence was recorded and proceedings were initiated against accused Pranjali Trikha. On summoning, accused entered her appearance and it was ensured that copy of complaint has been supplied. Thereafter notice under section 251 CrPC was put to the accused on 19.04.2023.
The Defence
6. Plea of defence was recorded on 19.04.2023. Wherein accused stated that "I had no business transaction with the complainant and I do not owe any liability towards the complainant in the present case. I have not signed the NACH/ECS Mandate and a false and frivolous complaint is filed against me in order to harass me. Another case for the same loan amount was also filed against my mother for the dishonorment of the cheque under Section 138 of NI Act and Section 25 of Payment and settlement Act. I do not want to say anything further". Thereafter, matter was fixed for complainant evidence and accused side was granted opportunity to cross-examine the complainant's evidence. COMPLAINANT'S EVIDENCE
7. During the trial, complainant has led the oral and documentary evidence against the accused to prove the case beyond reasonable doubt. The following CC No.6925-2021 MONEYWISE FINANCIAL SERVICES PVT. LTD Vs. PRANJALI TRIKHA Page No.3 of 21 Harjot Digitally signed by Harjot Singh Date: 2023.08.07 Singh 17:25:21 +0530 evidence are as under:
Oral Evidence CW1 Puneet Kumar Goyal Documentary Evidence Mark A Authority letter dated 08.12.2020.
Mark B ECS Mandate dated 03.03.2020.
Ex.CW1/C Return memo dated 30.09.2021 and 01.10.2021. (Colly) Ex.CW1/ D Legal demand notice dated 12.10.2021.
Ex. CW 1/E Original postal receipts.
Ex. CW 1/F Tracking report along with Certificate 65 B. (Colly) Ex. CW Affidavit of verification of address of the accused.
1/G
Ex. CW Loan agreement.
1/H (OSR)
Ex. CW 1/I Complaint.
Complainant stepped in witness box as CW1 and adopted the affidavit of pre-summoning as the evidence in chief, reiterating almost all facts of complaint, stating all exhibits available on record.
8. Complainant evidence was closed vide order dated 02.05.2023 and thereafter, matter was fixed for recording statement of accused. STATEMENT OF ACCUSED
9. The statement of accused was recorded under Section 313 of The Code of CC No.6925-2021 MONEYWISE FINANCIAL SERVICES PVT. LTD Vs. PRANJALI TRIKHA Page No.4 of 21 Harjot Digitally signed by Harjot Singh Date: 2023.08.07 17:25:26 +0530 Singh Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 on 18.05.2023. Incriminating evidence was put to her. Accused denied all the allegations. In recording of statement of accused, accused opted not to lead defence evidence.
10. Thereafter, defence evidence was closed vide order dated 18.05.2023.
11. Final arguments were addressed by the complainant and accused. Case file perused.
INGREDIENTS OF OFFENCE AND DISCUSSION-
12. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 25 of Payment & Settlement System Act, 2007, the prosecution must fulfill all the essential ingredients of the offence. It is relevant here to quote the relevant Section here which has been reproduced as below:
Section 25 Dishonour of Electronic Funds Transfer for insufficiency, etc., of funds in the account.
(1) Where an electronic funds transfer initiated by a person from an account maintained by him cannot be executed on the ground that the amount of money standing to the credit of that account is insufficient to honour the transfer instruction or that it exceeds the amount arranged to be paid from that account by an agreement made with a bank, such person shall be deemed to have committed CC No.6925-2021 MONEYWISE FINANCIAL SERVICES PVT. LTD Vs. PRANJALI TRIKHA Page No.5 of 21 Harjot Digitally signed by Harjot Singh Date: 2023.08.07 17:25:30 +0530 Singh an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the electronic funds transfer, or with both: Provided that nothing contained in this section shall apply unless
(a) the electronic funds transfer was initiated for payment of any amount of money to another person for the discharge, in whole or in part, of any debt on other liability;
(b) the electronic funds transfer was initiated in accordance with the relevant procedural guidelines issued by the system provider;
(c) the beneficiary makes a demand for the payment of the said amount of money by giving a notice in writing to the person initiating the electronic funds transfer within thirty days of the receipt of information by him from the bank concerned regarding the dishonour of the electronic funds transfer; and
(d) the person initiating the electronic funds transfer fails to make the payment of the said money to the beneficiary within fifteen days of the receipt of the said notice.
(2) It shall be presumed, unless the contrary is proved, that the electronic funds transfer was initiated for the discharge, in whole or in part, of any debt or other liability.
(3) It shall not be a defence in a prosecution for an offence under sub-
CC No.6925-2021 MONEYWISE FINANCIAL SERVICES PVT. LTD Vs. PRANJALI TRIKHA Page No.6 of 21 Harjot Digitally signed by Harjot Singh Date: 2023.08.07 Singh 17:25:34 +0530 section (1) that the person, who initiated the electronic funds transfer through an instruction, authorization, order or agreement, did not have reason to believe at the time of such instruction, authorization, order or agreement that the credit of his account is insufficient to effect the electronic funds transfer.
(4) The Court shall, in respect of every proceeding under this section, on production of a communication from the bank denoting the dishonour of electronic funds transfer, presume the fact of dishonour of such electronic funds transfer, unless and until such fact is disproved.
(5) The provisions of Chapter XVII of the Negotiable Instruments Act, 1881 (26 of 1881) shall apply to the dishonour of electronic funds transfer to the extent the circumstances admit. Explanation. For the purpose of this section, debt or other liability means a legally enforceable debt or other liability, as the case may be.
13. Further, the term "electronic funds transfer" have been defined u/s 2(C) of Payment and Settlement System Act, 2007 which is reproduced as under:
S. 2 (c) : "electronic funds transfer" means any transfer of funds which is initiated by a person by way of instruction, authorization or order to a bank to debit or credit an account maintained with that bank through electronic means and includes point of sale transfers; automated teller machine transactions, direct deposits or withdrawal of funds, transfers initiated by telephone, internet and, CC No.6925-2021 MONEYWISE FINANCIAL SERVICES PVT. LTD Vs. PRANJALI TRIKHA Page No.7 of 21 Digitally signed Harjot by Harjot Singh Date: Singh 2023.08.07 17:25:38 +0530 card payment.
14. It is pertinent to note that Section 25(5) attracts the applicability of Chapter XVII of the Negotiable Instruments Act, 1881 to the dishonouring of an electronic funds transfer. Section 138 of the NI Act expressively provides provisions concerning the penalization of dishonoured cheques. Both these sections make the dishonouring of electronic funds and cheques an offence punishable with imprisonment, a fine or both. The prime difference between the two is that in the case of the former, the dishonour, which is the subject matter of the offence, is of electronic funds transfer rather than of a cheque.
15. In this regard I would like to rely upon a judgment of Hon'ble Delhi High Court in the case of Ritu Jain Vs. The State Through Standing Counsel & Anr. in Crl. M. C No. 555/2016, date of decision 12.03.2019, wherein it was held that by virtue of Section 25(5) of the Payments and Settlement Act, the provisions of Chapter XVII of the Negotiable Instruments Act, 1881 (26 of 1881) shall apply to the dishonour of an electronic funds transfer to the extent the circumstances admit. Therefore, when Section 25 of the Payment and Settlement Act,2007 is invoked, Section 138 of the NI Act is also applicable as the case may be.
16. In order to establish the offence under Section 25 of payment and Settlement Systems Act, the prosecution must fulfill all the essential ingredients CC No.6925-2021 MONEYWISE FINANCIAL SERVICES PVT. LTD Vs. PRANJALI TRIKHA Page No.8 of 21 Harjot Digitally signed by Harjot Singh Singh Date: 2023.08.07 17:25:42 +0530 of the offence. Perusal of the bare provision reveals the following necessary ingredients of the offence:-
First ingredient: The accused initiated electronic funds transfer from an account maintained by him/her with the bank.
Second ingredient: The said ECS has been initiated in discharge of any legal debt or other liability. As per the explanation given in Section 25 of the Act , debt or other liability means a "legally enforceable debt or other liability".
Third ingredient: The ECS has been initiated in accordance with the relevant procedural guidelines issued by the system provider.
Fourth ingredient: The ECS when presented for encashment was returned unpaid/dishonored.
Fifth ingredient: The payee of the ECS issued a legal demand notice of demand within 30 days from receipt of information by him from the bank concerned regarding the dishonor and the person who initiated the ECS failed to make the payment within 15 days of the receipt of the aforesaid notice of demand.
APPRECIATION OF EVIDENCE- .
17. The accused can only be held guilty of the offence under Section 25 of the Payment and Settlement Systems Acts 2007, if the above-mentioned ingredients are proved by the complainant co-extensively. Additionally, the conditions stipulated under Section 142 NI Act have to be fulfilled.
Notably, there is no dispute qua the proof of third and fourth ingredient. CC No.6925-2021 MONEYWISE FINANCIAL SERVICES PVT. LTD Vs. PRANJALI TRIKHA Page No.9 of 21 Digitally signed Harjot byDate:Harjot Singh Singh 2023.08.07 17:25:45 +0530 It is not disputed that the ECS has been initiated in accordance with the relevant procedural guidelines issued by the system provider. The ECS in question was returned unpaid vide return memos Ex. CW 1/C (Colly).
18. As far as the proof of fifth ingredient is concerned, the accused in her plea of defence has stated that she did not receive the legal demand notice but the address on the demand notice is her correct address. Further, the accused in her statement recorded under Section 313 of Cr.P.C has stated that she has not received the legal demand notice. The copy of legal demand notice and postal receipts/tracking reports have been placed on record by complainant. Accused has also not disputed the genuineness of postal receipts and tracking reports. At this juncture, reliance is placed upon the judgment passed by Hon'ble Supreme Court in the case of C.C.Alavi Haji vs. Palapetty Muhammed, 2007 (6) SCC 555 wherein it has been held:
"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 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 CC No.6925-2021 MONEYWISE FINANCIAL SERVICES PVT. LTD Vs. PRANJALI TRIKHA Page No.10 of 21 Harjot Digitally signed by Harjot Singh Singh Date: 2023.08.07 17:25:49 +0530 who does not pay within 15 days of receipt of the summons from the Court along with 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. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."
Therefore, in such circumstances, presumption under section 114 Indian Evidence Act and section 27 of General Clauses Act can be raised to the effect that notice was duly served upon the accused. The presumptions have not been rebutted by the accused therefore it can be safely established that accused has received the legal demand notice. Therefore, fifth ingredient stands proved.
19. As far as the proof of first and second ingredient is concerned, the complainant has to prove that the ECH/ACH has been initiated by the accused from an account maintained by him/her with the bank and for discharging a legally enforceable debt or other liability. In the present case, the accused has raised the defence that she is not liable to pay the ECS amount to the complainant as she has not done any loan transaction with the complainant and CC No.6925-2021 MONEYWISE FINANCIAL SERVICES PVT. LTD Vs. PRANJALI TRIKHA Page No.11 of 21 Digitally signed Harjot by Harjot Singh Date: Singh 2023.08.07 17:25:53 +0530 the complaint is based on forged and fabricated documents. It is well settled law that mere denial by the accused would not rebut the statutory presumptions u/s 139 and u/s 118 of NI Act r/w Section 25 (2) of Payment and Settlement Systems Act, 2007 which arises in favour of the complainant under NI act and PASA act and presumption will still arise in favour of complainant.
20. Hence, once it is proved that electronic fund transfer was initiated for payment of any amount of money to another person, it relates to the fact that an initial presumption as contemplated u/s 139 of Negotiable Instruments Act r/w Section 25(2) of Payment and Settlement Systems Acts 2007 has to be raised by the court in favour of the Complainant. Even if signatures on the ECS/ACH Mandate are not admitted by the accused, still then the presumption will arise in favour of the complainant as held by Hon'ble Supreme Court of India in "M. ABBAS HAJI VS P.N. CHANNAKESHAVA in CRL.NO.664/2012". Section 139 of the Negotiable Instrument Act r/w Section 25(2) of Payment and Settlement Systems Acts 2007 contemplates that it shall be presumed unless contrary is proved that the electronic funds transfer was initiated for the discharge, in whole or in part, of any debt or other liability. The presumption referred to u/s 139 of Negotiable Instruments Act r/w Section 25(2) of Payment and Settlement Systems Acts, 2007 is mandatory presumption and in general a rebuttable presumption.
CC No.6925-2021 MONEYWISE FINANCIAL SERVICES PVT. LTD Vs. PRANJALI TRIKHA Page No.12 of 21 Harjot Digitally signed by Harjot Singh Singh 17:25:56 +0530 Date: 2023.08.07
21. Since the provisions of Section 25 (1) and 25 (2) of Payment and Settlement Systems Act, 2007 r/w explanation are similar to the provisions of Section 138 and 139 of N.I. Act, it is just and proper to consider the principles of law laid down in the landmark judgment passed by the Hon'ble Supreme Court of India in the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption contemplated under Section 139 of N.I. Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence. The principles pertaining to the presumptions and the onus of proof were recently summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 as under:
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarize the principles enumerated by this Court in the following manner:
25.1. 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.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials CC No.6925-2021 MONEYWISE FINANCIAL SERVICES PVT. LTD Vs. PRANJALI TRIKHA Page No.13 of 21 Digitally signed Harjot by Harjot Singh Date: Singh 2023.08.07 17:26:00 +0530 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. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come in the witness box to support his defence."
22. The presumptions raised under Section 118(b) and Section 139 NI Act r/w Section 25 (2) of Payment and Settlement Systems Act, 2007 are rebuttable presumptions. A reverse onus is cast on the accused, who has to establish a probable defence on the standard of preponderance of probabilities to prove that there was no legally enforceable debt or other liability towards the complainant.
23. Defence that the ECS in question was not initiated by the accused and same was not for any legal debt or other liability.
In a nutshell, the case of the accused is that she does not know the complainant company and no loan transaction ever happened between her and the complainant company. It is contended that the loan in question was taken by her mother as sole borrower and she had not signed any loan agreement and has not initiated the said ECS for discharge of any legal debt or liability. It is further argued that the ECS in question bears her forged and fabricated signatures and a false and frivolous complaint has been filed against her.
CC No.6925-2021 MONEYWISE FINANCIAL SERVICES PVT. LTD Vs. PRANJALI TRIKHA Page No.14 of 21
Harjot Digitally signed
by Harjot Singh
Date: 2023.08.07
Singh 17:26:04 +0530
23.1 Firstly, the accused contended that no loan transaction ever took place between her and the complainant and the signatures on the loan agreement Ex. CW 1/H and ECH/ACH Mandate 'Mark B' are forged and fabricated one. Per contra, as per the complaint, evidence affidavit, the accused has availed the financial facility/loan from the complainant company as per the arrangement letter and the loan agreement. As per the complaint and evidence affidavit, the accused is the borrower of the loan. The accused is shown as the borrower of the loan only and not as co-borrower or guarantor of the loan in question. But perusal of the loan agreement Ex. CW 1/H shows that the accused was the co- borrower of the loan and the primary borrower of the loan was Ms. Richa Trikha i.e. the mother of the accused.
The AR of the complainant in his cross-examination recorded on 02.05.2023, initially stated that the loan vide agreement no. BL00048 was advanced to Ms. Richa Trikha as sole borrower only and later on during his cross-examination changed his stand and stated that the accused was the co-borrower of the loan and she is not personally liable towards the complainant company. He has admitted that the factum of accused being co-borrower of the loan in question is not mentioned in the complaint, evidence affidavit and the legal demand notice. Therefore, it can be said that the stand of the complainant as to whether the accused was the primary borrower of the loan or co-borrower of the loan is not CC No.6925-2021 MONEYWISE FINANCIAL SERVICES PVT. LTD Vs. PRANJALI TRIKHA Page No.15 of 21 Harjot Digitally signed by Harjot Singh Date: 2023.08.07 Singh 17:26:07 +0530 certain.
In order to fasten the liability of the accused, the complainant has produced the loan agreement vide Ex. CW 1/H, KYC documents such as copy of signed PAN card and Aadhar Card of the accused vide Ex. CW 1/J (Colly) and the ECH Mandate vide Mark B. The accused has disputed her signatures on the loan agreement, KYC documents and the ECH Mandate. The burden of proving the signatures of the accused now shifts on the complainant. No witness has been examined by the complainant and further no help of the handwriting expert was sought by the complainant in order to establish and prove the genuineness of the signatures of the accused on the above said documents. The burden of proving the signatures was on the complainant and the complainant has failed to discharge the burden beyond reasonable doubt. It is pertinent to note here that the accused has not made any complaint to whatsoever authority regarding the misuse of the above said documents and further the availability of the signed PAN card and Aadhar card of the accused person with the complainant prima facie raises the suspicion that the documents may have been supplied by the accused only to the complainant company. On the contrary, the documents such as PAN card and Aadhar card are public documents and are readily available and can be easily downloaded from the internet and chances of misuse of such documents cannot be ruled out. Merely because no CC No.6925-2021 MONEYWISE FINANCIAL SERVICES PVT. LTD Vs. PRANJALI TRIKHA Page No.16 of 21 Harjot Digitally signed by Harjot Singh Date: 2023.08.07 Singh 17:26:11 +0530 complaint has been preferred by the accused regarding the misuse of the documents by the complainant and the fact that the signatures of the accused on the above said documents are not proved, therefore it cannot be safely established that the accused has provided the documents to the complainant company for the purpose of obtaining the loan in question. Therefore, considering the stand of the accused, inconsistencies in the version of the complainant in the complaint itself and in the cross-examination and the fact that the signatures of the accused on the loan agreement, KYC documents and the ECH Mandate are not proved, the court is of the considered opinion that the accused has raised a probable doubt in the version of the complainant and the story of the accused that she has neither availed the loan from the complainant nor signed any loan document or ECH Mandate seems reliable and inspires the confidence of the court.
23.2 Secondly, perusal of the complaint and the loan agreement shows that the loan was advanced for a sum of Rs. 20,19,734/-. The complaint does not mention anywhere that the loan was advanced on interest. Perusal of the loan agreement shows that the loan was advanced for 36 months at interest of 19.50% per annum. The loan was disbursed on 20.02.2020 and was to repaid in 36 equal monthly installments of Rs. 74,547/-.
It is interesting to note here that after, 19 months of the advancement of loan, the CC No.6925-2021 MONEYWISE FINANCIAL SERVICES PVT. LTD Vs. PRANJALI TRIKHA Page No.17 of 21 Harjot Digitally signed by Harjot Singh Singh Date: 2023.08.07 17:26:15 +0530 complainant presented the ECH twice, firstly on 30.09.2021 i.e. for full loan amount of Rs. 20,19,734/- and secondly on 01.10.2021 for an amount of Rs. 7,85,499/- i.e. the interest amount as per the version of the complainant. The complainant has failed to show that how after 19 months of the loan disbursement, the total loan amount became due and how interest to the tune of Rs. 7,85,499/- became payable by the accused. No document/loan statement has been produced on record to show that the accused has defaulted in payment of monthly EMIs and to show if the accused has paid any EMIs and that how many EMIs were already paid by the accused till date. Further, nothing has been produced on record to show that the loan agreement was terminated by the complainant company on breach of any terms of the loan agreement. On a whole, nothing has been brought on record to show that how after 19 months of the disbursement of the loan, the total loan amount along with interest became payble by the accused.
Further, no bifurcation of the amount claimed is done by the complainant in the complaint, legal demand notice. The complainant has demanded Rs. 28,05,233/- along with interest at the rate 24% per annum in the legal demand notice but no justification and bifurcation has been given by the complainant for demanding the said amount. As per the judgment of Hon'ble High Court of Delhi in M/S ALLIANCE INFRASTRUCTURE LTD. VS. VINAY MITTAL CRL.
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Harjot Digitally signed by
Harjot Singh
Singh Date: 2023.08.07
17:26:19 +0530
M.C.NO. 2224/2009, when the legal demand notice does not indicate the basis for claiming the excess amount, such a notice cannot be said to be a legal or valid notice as envisaged under Section 138 (b) of Negotiable Instruments Act. Therefore, even if it is presumed that the loan in question was obtained by the accused than also it cannot be said that the said ECH has been initiated in discharge of existing legally enforceable debt or other liability. Therefore, the only logical conclusion that comes to the fore is that the accused has pointed out probable doubts in the version of the complainant and has successfully discharged the burden. Therefore, it can be safely said that the accused has not initiated the electronic funds transfer from an account maintained by her with the bank in discharge of legally enforceable debt or other liability.
24. Considering, the evidence of the complainant and the defence raised on the whole, this court is of the considered opinion that the complainant has failed to withstood the test of cross-examination. There are material inconsistencies in the cross-examination of the AR of complainant that rebuts the presumption of legally enforceable debt in favour of the complainant qua the ECS in question. The accused has been sucessful in rebutting the presumption through the cross- examination of the AR of the complainant.
25. Hence, in the light of discussions in the aforegoing para(s), it is apparent that the case of the complainant that the ECS in question was initiated by the CC No.6925-2021 MONEYWISE FINANCIAL SERVICES PVT. LTD Vs. PRANJALI TRIKHA Page No.19 of 21 Digitally signed Harjot byDate:Harjot Singh Singh 2023.08.07 17:26:24 +0530 accused for the purpose of discharging a legal debt or liability is unworthy of credit and fails to inspire the confidence of the court. The fact that the accused has successfully raised a plausible doubt in the version of the complaint clearly indicates that the ECS was not initiated in "discharge of legally enforceable debt or other liability".Thus, it can be clearly said that the accused has been successful in rebutting the presumption raised under section 139 of NI Act r/w Section 25 (2) of PASA Act. Thus, the first and second ingredient to the offence under Section 25 of Payment and Settlement Systems Act 2007 stands not proved.
CONCLUSION:
26. To recapitulate the above discussion, the accused has been successful in establishing a probable defence on a standard of preponderance of probabilities to rebut the presumption under section 118 and 139 of the NI Act r/w Section 25 (2) of PASA Act by punching the holes in the case of the complainant and making the case of the complainant doubtful. Cogent evidence is required to be proved beyond reasonable doubt to secure conviction in a criminal trial. The complainant has failed in establishing that the ECS in question was initiated in discharge of existing legal debt or liability owed to the complainant. In the result of the analysis of the present case, the accused Ms. Pranjali Trikha is hereby acquitted of the offence punishable under Section 25 of Payment and Settlement Systems Act, 2007.
CC No.6925-2021 MONEYWISE FINANCIAL SERVICES PVT. LTD Vs. PRANJALI TRIKHA Page No.20 of 21 Digitally signed Harjot by Harjot Singh Date: Singh 2023.08.07 17:26:29 +0530 Announced in the open Court On 07.08.2023 Digitally signed by Harjot Harjot Singh Date: Singh 2023.08.07 17:26:34 +0530 (Harjot Singh) M.M (N.I.Act),Digital Court-01 PHC/New Delhi/07.08.2023 CC No.6925-2021 MONEYWISE FINANCIAL SERVICES PVT. LTD Vs. PRANJALI TRIKHA Page No.21 of 21