Delhi District Court
Sh. Ashok Kumar vs Ms. Minakshi on 10 September, 2024
IN THE COURT OF SHRI AJAY SINGH PARIHAR,
JMFC, NI ACT, DIGITAL COURT-03 NORTH WEST
DISTRICT, ROHINI COURTS, DELHI.
CC No. 1281/21
CNR No. DLNW020000512021
Ashok Kumar
S/o. Sh. Balbir Singh,
R/o. H. No. 68, Near Hanuman Mandir,
Chandpur, North West Delhi -110081. ...... Complainant
Versus
Minakshi
R/o. I/64-A, Block I,
Prem Nagar-2, Kirari Suleman Nagar,
Sultanpuri, North West Delhi -110086. .......Accused
Date of Institution : 04.01.2021
Offence complained of : S.138 N.I. Act
Date of Decision : 10.09.2024
Decision : Acquittal.
COMPLAINT UNDER SECTION 138 NEGOTIABLE
INSTRUMENTS ACT, 1881
JUDGMENT
1. The present complaint has been filed by the complainant against the accused under section 138 Negotiable Instruments Act, 1881.
2. The brief facts necessary for disposal of the present complaint are that the complainant and accused were having good friendly relations and thus, the accused approached the complainant for a friendly loan of ₹.1,90,000/- in the month of February, 2020 for his personal needs and complainant acceded to his request and gave ₹.1,90,000/- in cash to accused, CC No. 1281/21 Ashok Kumar Vs. Minakshi Page No. 1 of 15 whereupon, accused assured to repay the same within 8 months. It is further averred that against his legal liability towards the complainant, accused issued cheque bearing No. 005698 dt. 18.10.2020 for ₹.1,90,000/- in favour of complainant, which was dishonoured on presentation for the reasons "Funds Insufficient"
vide returning memo dated 23.10.2020. It is further averred that despite service of legal notice dated 03.11.2020 vide postal receipts and tracking reports, calling upon to pay the cheque amount within 15 days, accused failed to make the payment, hence, the present complaint.
3. In order to prove his case, the complainant examined himself as CW-1 by way of affidavit Ex.CW1/A and relied upon the following documents :
(a). Cheque bearing No. 005698 dt. 18.10.2020 for ₹.1,90,000/- as Ex.CW1/A.
(b). Returning memo dt. 23.10.2020 with remarks "Funds Insufficient" as Ex.CW1/B.
(c). Legal demand notice dt. 03.11.2020 alongwith postal receipts and tracking reports as Ex.CW1/C to Ex.CW1/E.
4. On finding of a prima-facie case against the accused, the accused was summoned, whereupon, he appeared before the court.
5. Thereafter, notice u/s 251 Cr.P.C.,1973 was framed against the accused on 30.03.2021 to which she pleaded not guilty and claimed trial.
6. The plea of defence of the accused was recorded and the accused had stated that :-
CC No. 1281/21 Ashok Kumar Vs. Minakshi Page No. 2 of 15 "Mr. Ashok Kumar and his brother in law Mr. Anil Kumar are financers of our colony. They lends money to the people on interest. I took Rs.10,000/- from the complainant in April or May and I repaid that amount on daily basis i.e. Rs.200/- per day. Some time I failed to pay the daily installment and for that I paid Rs.100/- as penalty for that day alongwith Rs.200/- installment amount. I took Rs.30,000/- from the complainant at different times and I also repaid that amount. I have cards for that. When they gave loan, they had also took blank cheque from me as a security. However, when I repaid the whole amount. I forgot to collect my cheque from them. They also gave money to Sandeep and Hema on my surety. However, they failed to repay the loan amount due to some reason. Then I came to know that they filed a case against me."
7. After the framing of notice, the complainant examined himself as CW-1 by way of affidavit of evidence Ex.CW-1/1 and relied upon the documents as Ex.CW1/A to Ex.CW1/D, which had already been exhibited and relied upon by complainant in her pre-summoning evidence. CW-1 was cross examined at length by the Ld. Counsel for the accused, thereafter complainant evidence was closed and the matter was listed for statement of the accused u/s 313 Cr.P.C., 1973.
8. Statement of accused was recorded u/s 313 r/w Section 281 Cr.P.C., 1973 on 23.07.2024, wherein all the incriminating circumstances appearing in evidence against the accused was put to her to which the accused stated that :
"It is a false case against me. I used to live at C-37, Rajeev Nagar, Delhi in the year 2020 during corona. I approached complainant for some financial assistance at office of complainant where complainant and his brother in law Anil Dabas were carrying on business of giving financial assistance on interest. The complainant used to give maximum amount of ₹.10,000/- and used to charge ₹.200/- per day as interest. The complainant also used to make collection card. The complainant used to charge penalty of ₹.100/- per day for late payment. I took a loan of ₹.10,000/-from the complainant against which, complainant took one blank signed cheque from me as security. I repaid this amount however, I again obtained a loan of ₹.10,000/- from complainant which was also repaid. For the 3rd time, again I obtained a loan of ₹.10,000/- from complainant which was also repaid. I CC No. 1281/21 Ashok Kumar Vs. Minakshi Page No. 3 of 15 have collection cards with me wherein complainant has signed as and when I used to make the payment. Two of my neighbours also took loan from the complainant. I requested complainant to return my cheque, however, the complainant stated that my cheque will not be returned until and unless my neighbours return the loan amount. I shifted my residence from Rajeev Nagar to Karala. My husband called me and apprised me about the present case. I have already repaid the amount. I do not have any liability towards the complainant and cheque in question. The complainant has misused my cheque."
Thereafter, accused lead evidence in her defence. On 05.02.2024, accused examined herself as DW-1 and has deposed that during the lockdown 2020, she did work of vegetable hawking and in her area, there was one financer, who was the complainant. DW-1 further deposed that she took a loan of ₹.10,000/- thrice from the complainant, as complainant never gave any loan to anyone more than ₹.10,000/-. DW-1 further deposed that the complainant used to make a card for the borrower and the loan was to be repaid by daily installments of ₹.200/- and there was a penalty of ₹.100/- for default of single installment. DW-1 further deposed that at the time of taking loan, she gave a blank cheque to the complainant for security. DW-1 further deposed that she had repaid the total amount to the complainant every time she took loan. DW-1 further deposed that she had placed on record two cards made for her being borrower by the complainant which contained the signature of the complainant and a photograph of the shop of the complainant. The cards are Ex.DW1/1 and Ex.DW1/2 and photograph is Ex.DW1/3.
Thereafter, DW-1 was duly cross-examined by Ld. Counsel for complainant and DE was closed and matter was posted for Final Arguments.
9. Thereafter, Ld. Counsel for the complainant and the CC No. 1281/21 Ashok Kumar Vs. Minakshi Page No. 4 of 15 accused were heard at length in the present case and the matter was reserved for judgment.
10. Before proceeding to the merits of the case, it is important to lay down the basic provision of law with respect to section 138 of the NI Act which is as follows :-
Section 138 of Negotiable Instruments Act, 1881 makes dishonour of cheques an offence. It provides that "where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be 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 cheque, or with both".
11. In order to ascertain whether the accused has committed an offence u/s 138 NI Act, the following ingredients constituting the offence have to be proved:
(a) The drawer of the cheque should have issued the cheque for the discharge, in whole or in part of a legally enforceable debt or other liability.
(b) The cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank.
(c) The drawer of such cheque fails to make the payment of the said amount of money within fifteen days of the receipt of the notice from the payee or the holder in due course demanding the payment of the said amount of money.
CC No. 1281/21 Ashok Kumar Vs. Minakshi Page No. 5 of 15 It is only when all the above-mentioned ingredients are satisfied that the person who has drawn the cheque can be set to have committed an offence u/s 138 NI Act.
12. It is important to reproduce Sec.118 of the Indian Evidence Act, 1872 and Sec.139 of the N.I. Act here. Section 118(a) of the Act provides that until the contrary is proved, it shall be presumed that "that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration." Further, Section 139 of the Act lays down that "it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
13. In the case of Hiten P. Dayal Vs. Bratindranath Bannerjee (2001)6 SCC 16, the Hon'ble Supreme Court of India had observed that "Because both sections 138 and 139 Cr.P.C. required that the court shall presume the liability of the drawer of the cheque for the amount for which the cheques are drawn as noted in State of Madras Vs. A.Vaidyanatha Iyer AIR 1958 SC 61, it is obligatory on the court that raise this presumption in every case where the factual basis for raising of the presumption has been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused".
14. Further, in the case of K.N. Beena Vs. Muniyappan AIR 2001 SC 2000, it was established as follows " In complaint CC No. 1281/21 Ashok Kumar Vs. Minakshi Page No. 6 of 15 u/s 138 the court has to presume that the cheque had been issued for a debt or liability, this presumption is rebuttable, however, the burden of proving that the cheque has not been issued for the discharge of debt or liability lies on the accused".
15. It has been admitted by the accused that the cheque in question was signed by her and drawn upon the bank account maintained by her, however, accused denies issuing the same to complainant for payment. The reason for dishonour of cheque in question as mentioned in cheque return memo Ex.CW-1/B is "Funds Insufficient". Therefore, once these foundational facts are established, presumption of cheque having been issued in discharge of legally recoverable debt and drawn for lawful consideration arises by virtue of Section 118(a) and Section 139 of N.I. Act.
16. Learned counsel for complainant has submitted that accused has not disputed the cheque and has admitted her signature. It is submitted that accused has admitted the loan. However, she has only disputed the amount of loan which she could not prove. It is further argued that accused did not call any handwriting expert to substantiate her defence that the collection card bears the handwriting of complainant. It is further argued that the accused did not file any police complaint for misuse of the cheque or that accused did not send any notice to complainant for return of cheque. It is also argued that the accused did not send any reply to legal notice. It is further submitted that the complainant has proved his case and at the same time accused has not been able to discharge her burden hence accused may be held guilty.
CC No. 1281/21 Ashok Kumar Vs. Minakshi Page No. 7 of 15
17. Ld. counsel for accused has submitted that the accused had only taken a loan of ₹10,000/- thrice from the complainant which she repaid in instalments ₹200/-. It is submitted that a collection card was made against the loan on which the complainant used to make entry of receipt of installement with initials. It is submitted that accused never received legal notice as the address mentioned on legal notice is incomplete hence accused could not reply to the same. It is argued that the complainant deposed that he withdrew ₹1,90,000/- from his account, however, complainant did not place on record his bank statement. It is also submitted that complainant neither took any receipt of the amount given to accused nor made any agreement regarding this loan. It is submitted that accused has discharge her burden and the complainant has not been able to prove his case beyond reasonable doubt hence the accuse may be acquitted.
18. It is the defence of the accused that she took only ₹10,000/- thrice from the complainant which she repaid in daily instalments of ₹200/-. The accused brought on record two collection card and a photograph during her evidence which are Ex DW1/1, DW1/2 and DW1/3 to substantiate her defence. It is argued by Ld. Counsel for complainant that collection card are forged and fabricated, and that complainant never made any entry upon the same. It is also argued that the accused did not obtain opinion of any handwriting expert to prove the initials upon the collection card to be that of the complainant. During cross examination of accused as DW1, accused stated that the name of the lender is not mentioned on Ex.DW1/1 and Ex.DW1/2, however, accused voluntarily stated that Ex.DW1/1 and Ex.DW1/2 bears the initials 'A' who is the complainant, who CC No. 1281/21 Ashok Kumar Vs. Minakshi Page No. 8 of 15 used to take the money from her and used to sign with his initials.
19. In State of Uttar Pradesh v. Ram Babu Misra, (1980) 2 SCC 343: AIR 1980 SC 791, the Supreme Court dealing with the scope and ambit of Section 73 of the Evidence Act held as under:
"The second paragraph of Section 73 enables the Court to give specimen writings 'for the purpose of enabling the Court to compare' such writings with writings alleged to have been written by such person. The clear implication of the words 'for the purpose of enabling the Court to compare' is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction is to be given for the purpose of 'enabling the Court to compare' and not for the purpose of enabling the investigating or other agency 'to compare'. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of Section 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. Further, Section 73 of the Evidence Act makes no distinction between a Civil Court and a Criminal Court..."
Indeed, the accused did not obtain opinion of any handwriting expert. However, this court obtained the specimen handwriting of both complainant and the accused under section 73 of Indian evidence act 1872, for the purpose of comparison with the handwriting in the collection card. Upon comparison, it is revealed that, numeric 2,5,8,9 appearing on collection card Ex DW1/1 and Ex DW1/2 are similar to the numeric obtained in the specimen handwriting of complainant. It can be seen that numeric '8' has been written in a peculiar way. The above part of numeric '8' is not joined and left open, so is in the case of numeric '9'. Further, complainant has signed the page on which his specimen handwriting was taken. The letter 'A' in signature CC No. 1281/21 Ashok Kumar Vs. Minakshi Page No. 9 of 15 of complainant in specimen handwriting is similar to the initials made upon collection card Ex DW1/1 and Ex DW1/2. The starting point of letter 'A' in both specimens handwriting as well as in collection cared is same. Though it is prudent to obtain opinion of handwriting expert, however, this court can also compare the handwriting and signature of parties to form an opinion upon the subject matter as provided u/s 73 of Indian evidence act 1872. This court has not hesitation in forming the opinion that complainant made initials as well as wrote the amount on the collection card Ex DW1/1 and Ex DW1/2.
20. The accused has also placed on record photograph Ex DW1/3, which shows a flex board upon a property bearing name Anil and Ashok and three mobile numbers. The accused has also placed on record supporting certificate under section 65 B of Indian evidence act 1872. During cross examination accused DW1 stated that photograph of the flex board Ex DW1/3 does not bear the information that loan is provided on interest, however, accused voluntarily stated that flex board bears the information that the complainant is financial advisor. Ld. Counsel for complainant gave suggestion to accused that flex board mark A is forged and fabricated. During cross examination, complainant CW1 stated that he is a farmer and that his mobile no. is 9813938502. It is also stated by complainant that he is not working as a financer in Begumpur. It is the case of accused that complainant provides small loan to people on interest. It is stated by complainant in cross examination that when loan of ₹1,90,000/- was given to the accused, he was accompanied by his relative Sh. Anil Kumar. The flex board shows the name and mobile no.9813938502 of complainant and surprisingly flex board Ex DW1/3 also shows the name of Sh. Anil along with two CC No. 1281/21 Ashok Kumar Vs. Minakshi Page No. 10 of 15 other mobile numbers. The flex board also reads 'Associate & Finance Advisor'. The finance advisor is nothing but a fancy term for financing. The complainant also did not bring Sh. Anil in witness box for proving the fact of loan of ₹1,90,000/-. In cross examination, complainant deposed that accused approached him for a friendly loan of Rs.1,90,000/- and the same was advanced to the accused in cash in February, 2020 after withdrawing the same from his bank account. The complaint has also not brought on record his bank account statement showing the withdrawal. In absence of account statement and deposition of Sh. Anil, this court is unable to accept the argument of Ld. Counsel for complainant that flex board Ex DW1/3 false and fabricated and that the loan amount was ₹1,90,000/-.
21. It is argued by Ld. counsel for accused that the accused is a vegetable vendor and that it is not plausible that complainant gave a loan of ₹1,90,000/- to accused without any paperwork or any security cheque. Ld. Counsel for complainant argued that complainant used to visit house of accused frequently and due to friendly relations no agreement was executed. However, accused issued cheque in question when the loan was demanded by the complainant. In cross examination, complainant CW1 deposed that he did not get any receiving from the accused nor executed any agreement, at the time of giving loan.
As per memo of parties, the complainant is residing in village Chandpur, whereas at the relevant time accused was residing in Sultanpuri. There is a distance of 13 km between village Chandpur and Sultanpuri. Complainant during his cross examination has stated that he used to purchase vegetables from the accused from different markets at Kanjhawala and Karala village. The distance between village Chandpur and the markets CC No. 1281/21 Ashok Kumar Vs. Minakshi Page No. 11 of 15 at Kanjhawala and Karala village, are about 3 km and 6 km respectively. It is not comprehendible as to why complainant would go 3 to 6 km for purchasing vegetables, specially from accused. It is also not digestible as to why the complainant would travel 13 km from his village to Sultanpuri to frequently visit the accused. It is the case of the accused that complainant is working as a financer in Begumpur for which accused also shown the flex board Ex DW1/3. It is possible only in one situation that complainant could visit accused frequently and purchase vegetables from accused on daily basis if complainant had been working in Begumpur. The distance between Begumpur and Sultanpuri is about 4 km. Further, it is an admitted fact that no agreement was executed between accused and complainant at the time of loan, and no receiving was taken by the complainant from the accused at the time of loan. In such circumstances, the court is unable to accept the argument of Ld. Counsel for complainant that loan of ₹1,90,000/- was given to the accused and that too without any paperwork. The above stated circumstances only supports the version of the accused that the cheque was given, for the purpose of security as no prudent person would provide a loan without any documentation or at least obtaining a security cheque.
22. It is argued by Ld. Counsel for complainant that accused did not make any police complaint of misuse of cheque and also did not reply to the legal demand notice. It is argued by Ld. counsel for accused that the legal demand notice was never received by the accused as the same was sent on incomplete address of the accused. The tracking report Ex CW1/E filed by the complainant shows that the legal demand notice was sent to accused on 03.11.2020 and the same was returned due to CC No. 1281/21 Ashok Kumar Vs. Minakshi Page No. 12 of 15 insufficient address on 04.11.2020. It is clear from the tracking report that accused never received the legal demand notice. Hence there was no occasion for accused to reply the legal demand notice. The accused did not make any police complaint, however, non-filing of police complaint is not sufficient for proving the case of complainant beyond reasonable doubt. In such circumstances submissions made by Ld. Counsel for complainant is hereby rejected.
23. In Krishna Janardhan Bhatt Vs. Dattatraya G. Hegre (2008) 4 SCC 54 Hon'ble Supreme Court held that an accused for discharging the burden of proof placed upon him under a statute need not examined himself. He may discharge his burden on the basis of the material already brought on record. The accused has a constitutional rights to maintain silence. Standard of proof on the part of an accused and that the prosecution in a criminal case is different. In the present case, accused not only examined himself, but also brought out inconsistency the testimony of complainant hence the accused has discharged his burden.
24. In the present case the accused has raised probable defence and has discharge the burden and at the same time complainant has failed to prove positively the legally recoverable debt.
25. Thus, in view of the totality of the circumstance and the settled legal positions as discussed above, the complainant has not been able to discharge his burden. It is also relevant to mention here that it is of paramount importance to demand evidence of unambiguous, impeccable and of unimpeachable in CC No. 1281/21 Ashok Kumar Vs. Minakshi Page No. 13 of 15 nature so as to entail criminal conviction of the accused and which the complainant has failed to bring.
26. In the case of 'Kulvinder Singh vs Kafeel Ahmad'', Crl L. P. 478 of 2011, decided on 04.01.2013, Hon'ble Delhi High Court has held that the basic principle in criminal law is that the guilt of the accused / respondent, must be proved beyond reasonable doubts and if there is any slightest doubt about the commission of an offence, then the benefit has to accrue to him.
27. At the same time, it is important to underscore the established canon of criminal law that in order to pass a conviction in a criminal case, the accused ''must be'' guilty and not merely ''may be'' guilty. The mental distance between ''may be'' guilty to ''must be'' guilty is a long one and must be travel not on surmises and conjectures, but by cogent evidence. In this case, after the accused successfully rebutted the presumption of consideration by raising a doubt on the very factum of the legally recoverable debt. The accused has clearly presented a case which is superior in way. And as per the settled law, this is all that what is required, as preponderance of probabilities is not a rigorous standard of proof, but only so much evidence as makes the court lean in, in favour of one side and not the other. Consequently, the benefit of doubt must go to the accused. The material on record does not suggest that the accused ''must be'' guilty whichever way one looks at it.
28. In view of the above discussions, I hold that the complainant has failed to prove his case. The accused has been able to rebut presumption under Section 118 and 139 NI Act arising in favour of the complainant.
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29. In light of foregoing reasons, it is clear that accused Minakshi has succeeded in rebutting the presumption of legal liability and the complainant has failed to prove the same affirmatively. As a result, both accused stands acquitted from the offence u/s 138 NI Act.
Announced in the ( A J AY S I N G H PA R I H A R )
Open Court JMFC (NI ACT) Digital Court-03 (N/W)
on 10/09/2024 Rohini Courts, Delhi.
CC No. 1281/21 Ashok Kumar Vs. Minakshi Page No. 15 of 15