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[Cites 24, Cited by 0]

Delhi District Court

Complainant vs . on 9 December, 2014

                     IN THE COURT OF SHRI PUNEET PAHWA 
             METROPOLITAN MAGISTRATE ­ 01 (N.I. ACT)
                   PATIALA HOUSE COURTS : NEW DELHI


Sh. Man Mohan Prakash
S/o Sh. Sohan Lal,
R/o 5248, Gali Bharat Nagar,
Shora Kothi Paharganj,
New Delhi­110055.
                                                          ....................... Complainant

                                        Vs.

Smt. Deepak Gupta
W/o Late Sh. Rakesh Kumar
R/o C­2/13, Krishna Nagar, 
Delhi.

Also at:

Steel Authority of India Ltd.
10, Jeevan Deep Building,
Sansad Marg,
New Delhi­110001.
                                                   .................................Accused


Case Number.                                    :          3275/1, 3276/1, 3277/1

Date of Institution of Present Case.            :          02.08.2008 & 05.08.2008 
                                                           (3277/1). 


Case No. 3275/1, 3276/1 & 3277/1                                                Page 1 of 27
 Offence Complained Of.                                 :          U/s 138 NI Act

Plea of the Accused.                                   :          Not Guilty

Arguments Heard On.                                    :          02.12.2014

Final Order.                                           :          Acquittal.

Date of Judgment.                                      :          09.12.2014.


                                   − :: JUDGMENT :: ­ 




    1.

Vide this common judgment, I shall dispose of the above said three complaints filed by the complainant u/s 138 Negotiable Instrument Act, 1881 (hereinafter referred to as "N.I Act").

2. The facts of the case are that the complainant is in the business of sale and purchase of property as well as construction and has office under the name and style of M/s Royal Builders at D­6/1, 2nd Floor, Krishna Nagar, New Delhi­110051. He is running this office for the last 5 years. The accused, her son and daughter­in­law had been residing nearby the office of the complainant and as such developed good relations with the complainant. In the month of February, 2006 the complainant sold out one property for a sum of ₹39 lakhs. When this fact came to the knowledge of the accused, the Case No. 3275/1, 3276/1 & 3277/1 Page 2 of 27 accused, her son and daughter­in­law contacted the complainant and suggested him to invest the said amount in a deal pertaining to the property to earn good profits. They assured the complainant that if the investment is made in the property he can earn good profit. Believing their assurance to be true and trustworthy the complainant agreed to the said proposal. Sh. Vaibhav Gupta, Mrs. Anjali Gupta, the son and daughter­in­law of the accused respectively, showed certain properties in the area of South Delhi to the complainant. Believing their representation to be true, the complainant paid a sum of ₹35 lakhs to the accused, her son and daughter­in­law for purchase of a property in South Delhi, jointly in the name of the complainant and daughter­in­law of the accused. Accordingly, a deal pertaining to the part of the property i.e. 241 Sq. Yds of property no. E­558­A, Greater Kailash­I, New Delhi was finalized. However, despite assurance to purchase the said property in the joint name, the accused, her son and daughter­in­law, with dishonest intention purchased the said property only in the name of Mrs. Anjali Gupta i.e. the daughter­in­law of the accused. The said property was purchased in the month of November, 2006. Although the complainant objected to the same but putting faith upon the accused he trusted the accused, her son and daughter­in­law. Since the property was purchased with the intention to resale the same and to earn profit, despite requesting on several occasions for re­sale of the Case No. 3275/1, 3276/1 & 3277/1 Page 3 of 27 property, the accused, her son and daughter­in­law kept on delaying the matter on one pretext or the other. Till July 2007 there was no response from the accused or her son or daughter­in­law. When the complainant contacted the accused and her son, they assured the complainant that he will get his share of profit to the extent of Rs.15 lakhs (being 50% of the share in the profit) out of the total deal. To further gain the confidence of the complainant they issued 3 PDCs for ₹5 lakh each, which are the subject matter of the present three complaints, and the accused further assured that those cheques will be duly encashed on their presentation. The accused also issued one promissory note admitting her liability. When the said three cheques were presented for encashment, the same returned back unpaid for the reasons "Account Closed". The complainant issued a legal demand notice dated 05.07.2008, calling upon the accused to pay the cheque amount. But when the accused failed to make the payment despite receiving the legal demand notice, the complainant was forced to file the present complaint against the accused. The complainant has relied upon the following documents: cheque Ex. CW 1/A, promissory note Ex. CW 1/A1, cheque return memo Ex. CW 1/B, legal demand notice Ex. CW 1/C, relevant postal receipts showing proof of delivery of legal demand notice Ex. CW 1/D (colly), AD Card Ex. CW 1/E, complaint Ex. CW 1/F and affidavit of the complainant Ex. CW 1/G. Case No. 3275/1, 3276/1 & 3277/1 Page 4 of 27

3. The present complaint was filed as on 01.08.2008 and vide order dated 02.08.2008 the accused was summoned. The accused entered appearance through her counsel on 28.08.2008. Notice u/s 251 Cr. P.C was served upon the accused on 05.09.2009 and the case was fixed for post summoning evidence.

4. The complainant has filed his evidence by way of affidavit reiterating the averments made in his complaint and he has fully supported his case on oath. The complainant was cross­examined by Ld. Counsel for the accused. In his cross­examination he reiterated that he was involved in the business of sale, purchase of property and he had been involved in the said business for the last 9 years. He did not invest in properties. He admitted that he was very well experienced in his field of work and he got 1% commission on sale, purchase of property from his customers and if sale, purchase of property does not take place he does not get any commission / profit. The accused used to live in his neighbourhood for the past 8­9 years. He further submitted that he had sold property bearing no.4/2916, Gali No.1­A, Bihari Colony, Delhi. Since son of the accused used to visit the complainant he came to know about the said sale of property. His first transaction with the accused took place in 2007. He did not invest in properties and he had invested only once i.e. Case No. 3275/1, 3276/1 & 3277/1 Page 5 of 27 with the accused. He had invested in property bearing no. 558­A, Greater Kailash­I, New Delhi. He denied the suggestion that he had himself approached the accused for the investment in the said property. He had given money to the accused for the investment purposes in the year 2007 and the accused had bought the property in the year 2007, after the money was given to her by the complainant. He had denied the suggestion that the accused had already bought the property in 2006 i.e. before he had invested money in the same. He admitted that the said investigation was made for making profit. There was understanding between him and the accused that only after the accused would sell the property, the profit would be shared between them. He admitted that he did not file any case against the accused complaining that she had bought the property in the name of her daughter­in­law and not jointly in the name of her daughter­in­ law and the complainant. He had orally objected to the same but he was assured by the accused that when the property would be sold, profit would be shared between them. The complainant further submitted that he had not filled the date on the cheque in question. The cheque in question was issued by the accused after he had given the money to the accused. He did not remember the exact date or month when the said cheque was given by the accused. He denied the suggestion that the cheques in question were issued as security cheques. Remaining cross­examination of the complainant was done Case No. 3275/1, 3276/1 & 3277/1 Page 6 of 27 by way of putting suggestions to the witness and I have gone through the same. After examination of the complainant, the complainant closed his evidence.

5. Statement of the accused u/s 313 Cr. P.C was recorded on 22.08.2013. She stated that she did not know whether the complainant had sold one of his properties for ₹39 lakhs. She denied having receipt of ₹35 lakhs from the complainant. She submitted that she had given signed cheques to the complainant in front of his son as security at the instance of her son but without any date and particulars. She further submitted that she had given the cheques as security pursuant to the talks arrived at between the complainant and her son with respect to purchase of a property and the money was to be given to the complainant upon profits earned from the sale of the purchased property situated at Greater Kailash­II.

6. After recording statement of accused u/s 313 Cr. P.C the accused preferred to lead DE and Sh. Vaibhav Gupta, son of the accused stepped into the witness box and deposed as DW 1. In his examination­in­chief the witness submitted that the accused is his mother. He admitted that he knew the complainant and office of the complainant is situated nearby his residence. He is known to the complainant for the last 7­8 years. He further admitted that the Case No. 3275/1, 3276/1 & 3277/1 Page 7 of 27 complainant is in the business of property dealing. He further submitted that in around 2006 the complainant approached him for investing in property. He and the complainant went to South Delhi to see various properties and property no.558­A, Greater Kailash­II was liked by both of them. The complainant used his contacts to conduct inquiry about the said property. Then they met with Sh. Jitender Kumar, Power of Attorney Holder of the said property who showed all the original papers of the said property and after some discussion the said property was finalized by the complainant. It was agreed between them that when the property would be sold they both would share profit. The sale consideration was decided as ₹75 lakhs. When Sh. Vaibhav asked the complainant to pay the money the complainant kept on delaying the matter. Finally after dealying the issue he gave ₹15 lakhs instead of ₹25 lakhs which he had agreed to pay. Since the complainant did not give the entire amount promised by him, the witness got the property registered in the name of his wife. After that they both were in regular touch regarding sale of the said property, however despite several attempts the said property could not be sold. The complainant was even asked to sell the property using his own contacts but the sale could not be effected. He further submitted that the complainant was pressurizing him to return his amount but he was told that it was not possible without sale of the property. Then after some time when the sale could not be Case No. 3275/1, 3276/1 & 3277/1 Page 8 of 27 effected the witness convinced his mother i.e. the accused, to issue security cheques to the complainant and told not to present these cheques in the bank for encashment before the sale of the property as these were issued only for the purpose of guarantee. It is only due to excessive pressure being put by the complainant the accused got convinced to issue three cheques of ₹5 lakhs without date. The witness has submitted that those cheques were not intended to be encashed and were issued merely as security cheques. He further submitted that the complainant was informed that the accused was a widow and she was an old lady and she had nothing to do with the property but only for the satisfaction of the complainant the said cheques have been issued by the accused and the complainant was told not to misuse those cheques. After some time the witness came to know that some other persons were also claiming to be the owners of the said property, the witness after consulting his advocate visited the local SHO, PS C.R. Park but the SHO did not pay any heed to the witness. Thereafter the witness filed a civil suit in the Hon'ble High Court of Delhi regarding the said property. After that he came to know about the filing of present complaint by the complainant against the accused by making alteration in the cheques by filling the date in the same. He again told the complainant that since the said money has been invested in the property, he would not be able to pay money until the property is sold. He further submitted that he asked Case No. 3275/1, 3276/1 & 3277/1 Page 9 of 27 the complainant that they can wait for some time and his money will be returned as soon as Hon'ble High Court of Delhi passes an order in the civil suit filed by the witness.

7. In his cross­examination no new fact came out. However he had agreed that there was no agreement between him and the complainant to the effect that he could get the sale deed registered in his name and his wife's name. The complainant had himself stated to the witness that since he had no money in white therefore he could get it registered in his own name. He further admitted that the complainant had filed a civil suit with respect to the three cheques in question against his mother i.e the accused. He further admitted that the said suit was decreed in favour of the complainant by that court. Moreover the decree amount has been recovered partially on the execution of the said decree and as per his knowledge an amount of ₹6.5 lakhs (approx.) has been recovered in execution of the said decree. He further admitted that he remained in jail for a period of nearly 6 months on the basis of complaint registered by Vijay Kumar who claimed to be the owner of the property no.E­558­A, Greater Kailash, Part­2, New Delhi. He denied the suggestion that the cheques were issued from the account which was already closed by the accused. It was closed lateron when the complainant insisted on presenting the cheques for payment. Although he could not give the Case No. 3275/1, 3276/1 & 3277/1 Page 10 of 27 specific date or month of the closing of the account. He identified the signatures of the accused on the bail bond which is Ex. DW 1/C1 and also on vakalatnama which is Ex. DW 1/C2. He further identified the signatures of his mother i.e. the accused, on the document which is Ex. DW 1/C3. The said document is the reply which was sent by the accused to the legal demand notice issued by the complainant. He further stated that on the date when the three cheques were issued to the complainant, he and his wife had also been maintaining their bank account individually, however, the complainant had denied accepting cheques from their account. After that DE was closed, arguments were head and the case was fixed for orders.

8. Ld. Counsel for the complainant has argued that the case of the complainant has been sufficiently proved beyond all reasonable doubt whereas the accused has failed to rebut the presumptions raised against her and, therefore, the accused is liable to be convicted u/s 138 N.I. Act. Ld. Counsel for the complainant has further submitted that in a civil case filed by the complainant against the accused under Order 37 CPC on the basis of three cheques, the suit was decided in favour of the complainant and it was decreed, certified copies of which are already on record as Ex. CW 1/A, which further strengthens the case of the complainant. It has been further argued Case No. 3275/1, 3276/1 & 3277/1 Page 11 of 27 that the accused has not brought anything on record in her defence and mere oral averments are not sufficient to rebut the presumptions raised against her. Throughout the trial the conduct of the accused has been to delay the matter and moreover the defence plea raised by the accused is also not consistent. In her statement u/s 313 Cr. P.C the accused denied the receipt of legal demand notice, however, reply of the same is on record which was duly signed by her as well as by her counsel and her son identified her signatures. The only witness produced by the accused has himself admitted the case of the complainant that he had received ₹15 lakhs from the complainant. By merely stating the cheques in question were issued as security would not exonerate the accused from her liability.

9. On the other hand Ld. Counsel for the accused has submitted that the entire case of the complainant is very vague and it lacks in material particulars. The complainant has not furnished on record the details of property allegedly sold by him. Moreover he has not produced any receipt on record to establish that he had paid ₹35 lakh in cash to the accused or her son. He has failed to produce his Income Tax Returns and his books of account. He has also failed to show source of income, which itself creates a doubt upon the case of the complainant and this fact in itself is sufficient to rebut the presumptions raised against the accused. It has been further argued Case No. 3275/1, 3276/1 & 3277/1 Page 12 of 27 by Ld. Counsel for the accused that by the very case of the complainant himself the agreement entered into between the parties was a contingent contract, based upon the contingency of earning profits. The complainant has himself admitted that he would be entitled for the contingent profits which means that if no profit is earned he would not be entitled for any money. Since the said property could not be sold, no profits were earned on the said property and, therefore, there was no occasion to pay any amount to the complainant and thus there was no liability upon the accused to pay any amount to the complainant. This fact itself shows that when the cheques were issued there was no existing debt or liability upon the accused to pay any amount to the complainant. Section 138 N.I. Act has no applicability in the cases of contingent contracts. As per the case of the complainant the money was paid to the son of the accused whereas the cheques were issued by the accused, therefore, Section 138 N.I. Act is not applicable as no consideration was passed on to the accused. Ld. Counsel for the accused has further argued that even if it is presumed that the said transaction took place, the same was in gross violation of the provisions of Income Tax Act and thus it is an illegal transaction and thus money paid in pursuance of illegal transaction can not amount to a legally recoverable debt or liability. It has been further argued that the judgment passed in the civil case has no bearing upon the present complaint as the onus of proof in Case No. 3275/1, 3276/1 & 3277/1 Page 13 of 27 both the cases is quite different and merely because a civil suit has been decreed against the accused would not affect the decision of the present case which are the proceeding under the criminal law. Ld. Counsel for the accused has relied upon the following case laws:­ Bharat Barail & Drum Manufacturing Co. Vs. Ameen Chand Pyare Lal, AIR (1999) SC 1008, Kundan Lal Vs. Custodian Evacuee Property, Bombay, AIR (1961) SC 1316, C. Antony Vs. K.G. Raghavan Nair, (2003) Cri.L.J. 2146, M.S. Naryana Menon Vs. State of Kerala & Anr, (2006) 6 SCC 39, Vipul Kumar Gupta Vs. Vipin Gupta 2012 (4) JCC 248; Sanjay Mishra Vs. Kanishka Kapoor @ Nikki and Anr. 2010(1) ALD(Cri)2, ICON Buildcon Pvt. Ltd. Vs. Aggarwal Developers Pvt. Ltd. & Ors. 2014 (2) JCC 109 (NI) and Collage Culture Vs. Apparel Export Promotion Council 2007(4) JCC 388 (NI).

10. I have heard the arguments advanced by both sides, and have also perused the case file.

11. Bare perusal of Section 138 of the NI Act clarifies that five essential ingredients for completing the offence under Section 138 of the Act are as below--

i) Drawing of the cheque, Case No. 3275/1, 3276/1 & 3277/1 Page 14 of 27

ii) Presentation of the cheque with the bank,

iii) Returning of the cheque unpaid by the drawee bank,

iv) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, and

v) Failure of the drawer to make payment within 15 days of the receipt of the notice.

12. It is pertinent to mention here that there are two presumptions of law as mandated by the Negotiable Instruments Act. According to Section 118 (a) of the Act, it shall be presumed that every negotiable instrument was made or drawn for consideration. By virtue of this clause, the Court is obliged to presume that the promissory note was made for consideration or until the contrary is proved. In Mallavarapu Kasivisweswara Rao Vs. Thadikonda Ramulu Firm and Others AIR 2008 SC 2898 it was held as under: ­ "... ... ... The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not Case No. 3275/1, 3276/1 & 3277/1 Page 15 of 27 exist or its non­existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist...."

13. According to Section 139 of NI Act "it shall be presumed, unless the contrary is proved that the holder of a cheque received the cheque for discharge in whole or in part, of any debt or other liability." Under Section 139 NI Act there is a legal presumption that the cheque was issued for discharging a liability and that presumption can be rebutted only by the person who drew the cheque. This presumption can be rebutted by the accused by adducing evidence. So the burden of proof is on the accused.

14. In Hiten P. Dalal Vs. Bratindranath Banerjee AIR 2010 SC 1898 it was held as under: ­ "The words 'unless the contrary is proved' which occur in this provision (Section 139) make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted......".

Case No. 3275/1, 3276/1 & 3277/1 Page 16 of 27

15. So far as issuance of cheques and return of the same dishonoured is concerned, the same is not in dispute. However for the applicability of Section 138 of N.I. Act it has to be seen whether the cheques in question were issued in discharge of any legally enforceable debt or liability or not. It is one of the essential ingredients for an offence under Section 138 of N.I. Act that the cheque must have been issued in discharge of an existing debt or liability. Ld. Counsel for the accused has argued that since the entire transaction between the complainant and the accused was to the effect that a property was purchased by the accused and there was an understanding between the accused and the complainant that after the sale of property the profits would be shared between the complainant and son of the accused, but since the property could not be sold by the accused, there was no occasion to earn any profit and thus there was no debt or liability upon the accused to pay any amount to the complainant. The case of the complainant itself shows that the property was to be sold out and profits were to be disbursed between them. Ld. Counsel for the accused has also argued that the accused has been able to rebut the presumptions raised against him and the onus shifts back upon the complainant to prove his case beyond all reasonable doubt, which the complainant has failed to discharge. The complainant has not brought any evidence on record to show that Case No. 3275/1, 3276/1 & 3277/1 Page 17 of 27 there was any existing debt or liability which was to be discharged by the accused.

16. After going through the entire record and after hearing the arguments and perusing the case law referred to by both the parties, this court is of the opinion that the accused has successfully discharged the onus of rebutting the presumptions raised against her whereas the complainant has failed to prove guilt of the accused beyond all reasonable doubt. In Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Payrelal (supra), the Hon'ble Supreme Court has observed as under:

"...Once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non­existence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact upon its failure to prove would dis­entitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non­existence of the consideration can be either direct or by bringing on record the Case No. 3275/1, 3276/1 & 3277/1 Page 18 of 27 preponderance of probabilities by reference to the circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non­existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The Court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if lead is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the Court may either believe that the consideration did not exist or its non­existence was so probable that a prudent man would under the circumstances of the case, shall act upon the plea that it did not exist. "

17. The Court also find force in the second contention of Ld. Counsel for the accused that the cheques in question were given as a security cheque. In M/s Collage Culture & Ors Vs. Apparel Export Promotion Council & Anr (supra), the Hon'ble High Court had Case No. 3275/1, 3276/1 & 3277/1 Page 19 of 27 observed in para 20, 21, 22 & 24 as under:

"20. A post dated cheque may be issued under 2 circumstances. Under circumstance one, it may be issued for a debt in presenti but payable in future. Under second circumstance it may be issued for a debt which may become payable in future upon the occurrence of a contingent event.
21. The difference in the two kinds of post­dated cheques would be that the cheque issued under first circumstance would be for a debt due, only payment being postponed. The latter cheque would be by way of a security.
22 The word 'due' means 'outstanding at the relevant date'. The debt has to be in existence as a crystallized demand akin to a liquidated damges and not a demand which may or may not come into existence; coming into existence being contingent upon the happening of an event.
24 It would be relevant to note that the statute does not refer to the debt being payable, meaning thereby, a post dated cheque for a debt due but payment postponed at a future date would attract Section 138 of the Negotiable Instruments Act 1881. But the cheque issued not for an existing due, but issued by way of a security, would not attract Section 138 of the Negotiable Case No. 3275/1, 3276/1 & 3277/1 Page 20 of 27 instruments Act 1881, for it has not been issued for a debt which has come into in existence.".

18. After going through the above said case law and on perusal of the record this court is of the opinion that the present case is a classic case of a cheuqe being issued as a security cheque and not for the purpose of discharge of any legally enforceable debt or liability. In fact from the complaint itself and also from the affidavit of the complainant it can be deduced that the cheques in question might have been issued as security cheque. In various places in the complaint as well as in the affidavit the complainant has himself mentioned that he had paid the amount to the son of the accused for the purpose of investment in immovable property. From the combined reading of the complaint and affidavit it can be inferred that the investment was done solely for the purpose of earning profit from the resale of the property which is property bearing No. E­558­ A, Greater Kailash­1, New Delhi. In fact in para­7 of the complaint it has been mentioned that the property was purchased with an intention to sell the same and to earn profit. Again in para­9 of the complaint it has been mentioned that the accused represented the complainant that he will get his share of profit to the extent of Rs.15 lakhs out of the total deal. In para­10 of the complaint it has been further mentioned that to gain the confidence of the complainant the Case No. 3275/1, 3276/1 & 3277/1 Page 21 of 27 accused, being a government official, gave 3 PDCs of ₹5,00,000/­ each, which are the subject matter of the present three complaints. It is not understandable as to why the cheques were issued to gain the confidence of the complainant, if there was an existing debt or liability upon the accused. This defence of the accused is further strengthened from the fact that the promissory note dated 20.12.2007, which is Ex. CW 1/A1 also mentions the three cheques which are subject matter of the present complaints. Mentioning of the cheques on the promissory note dated 20.12.2007 shows that these three cheques were in existence on that date. However the cheques in question actually bear date 19.06.2008, which further put a shadow of doubt on the case of the complainant. In fact in cross­examination dated 10.01.2012 the complainant had admitted that the said investment was made for making profits. He had further voluntary stated that there was an understanding between him and the accused that only after the accused would sell the property, the profit would be shared between them. Therefore, as per the understanding between the accused and the complainant, unless and until there was a profit, no amount was to be paid by the accused to the complainant. The complainant has failed to bring on record any document to show that the property was actually sold. Therefore, after perusing the entire record this court is of the opinion that the present cheques fall in the second category of cheques mentioned in the judgment of Hon'ble Case No. 3275/1, 3276/1 & 3277/1 Page 22 of 27 High Court of Delhi in Collage Culture's case where the cheque had been issued only for the purpose of security and not in discharge of any legally enforceable debt or liability.

19. So far as contention of Ld. Counsel for the complainant that there is an admission on the part of the son of the accused, who had appeared as DW 1, that the complainant had paid ₹15 lakhs to the accused, is concerned, this admission is not sufficient to prove guilt of the accused as the present case is not regarding any friendly loan or repayment of loan by the accused. The admission of son of the accused is of no assistance to the complainant as the complainant is not claiming this amount from the accused. The complainant has nowhere stated that the cheques in question have been issued to repay the said amount of ₹15 lakhs.

20. Ld. Counsel for the complainant has also relied upon the judgment of Ld. ADJ in a civil suit pending between the same parties which was decided in favour of the complainant and against the accused. The record of that civil suit is Ex. CW/A. Relying upon the said record Ld. Counsel for the complainant has submitted that this judgment conclusively proves the liability of the accused as that civil suit was between the same parties based upon the cheques in question. The suit was decreed and in fact in execution proceedings Case No. 3275/1, 3276/1 & 3277/1 Page 23 of 27 an amount of ₹6.5 lakhs has already been recovered from the accused. He further argued that no appeal or revision has been filed against that judgment and therefore the said judgment has attained finality and in terms of the said judgment it can be said that the cheques in question have been issued in discharge of the liability of the accused. However, this contention of Ld. Counsel for the complainant is not sustainable. Although the said judgment and order has been taken on record and has been exhibited but this court is of the considered view that it is not relevant for the purpose of decision in the present complaint. That record pertains to a civil suit, decision of which is based upon preponderance of probabilities. Whereas the present complaint is a criminal trial in which the guilt of the accused is to be established beyond all reasonable doubt.

21. The relevant provisions which talk about relevancy of judgments of other courts are Section 40,41,42 & 43 of Indian Evidence Act. After perusing these provisions this court is of the considered opinion that the judgment of a civil court, pending between the same parties, on which Ld. Counsel for the complainant is relying upon, does not fall in any of the said Sections. Section 43 of Indian Evidence Act very categorically provides that judgments, orders or decrees, other than those mentioned in Sections 40,41 & 42 are irrelevant, unless the existence of such judgment, order or decree, Case No. 3275/1, 3276/1 & 3277/1 Page 24 of 27 is a fact in issue, or is relevant under some other provisions of this Act. The judgment of Ld. ADJ is neither a fact in issue nor it is relevant in any other provisions of the Evidence Act, therefore, the same is irrelevant, so far decision of this case is concerned. Therefore, judgment can be based only upon the facts which are relevant and duly proved. Section 165 of Evidence Act reads as under:

"The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; any may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross­examine any witness upon any answer given in reply to the any such question:
Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:".

22. Whether a judgment of a civil court is relevant and binding upon the criminal court or not, this question came up for a consideration in K.G. Premshanker Vs. Inspector of Police & Anr [(2002)] 8 SCC 87, wherein the Hon'ble Supreme Court inter alia held as under :

Case No. 3275/1, 3276/1 & 3277/1 Page 25 of 27
"What emerges from the aforesaid discussion is(1) the previous judgment which is final can be relied upon as provided under sections 10 to 43 of the Evidence Act; (2) in civil suits between the same parties, principle of res judicate may apply; (3) in a criminal case, Section 300, Cr. P.C. makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein. ....................Further, the judgment, order or decree passed in a previous civil proceeding, if relevant, as provided under Section 40 and 42 or other provisions of the Evidence Act then in each case, the court has to decide to what extent it is binding or conclusive with regard to the matter(s)."

23. Relying upon the aforequoted judgment, the Hon'ble Supreme Court in Syed Askari Hadi Ali Augustine Imam and Anr. Vs. State (Delhi Admn.) and Anr observed as under:

"Axiomatically, if judgment of a civil court is not binding on a criminal court, a judgment of a criminal court will certainly not be binding on a civil court. We have Case No. 3275/1, 3276/1 & 3277/1 Page 26 of 27 noticed hereinbefore that Section 43 of the Evidence Act categorically states that judgments, orders or decrees, other than those mentioned in sections 40,41 and 42 are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of the Act. No other provision of the Evidence Act or for the matter any other statute has been brought to our notice. "

24. In view of above discussions, it can be said that the accused has discharged her onus to rebut the presumptions raised against her whereas the complainant has failed to prove its case beyond reasonable doubt. Accordingly, the accused is acquitted for the offence punishable u/s 138 of N.I. Act.

Announced in the open Court on 09th December, 2014 (PUNEET PAHWA) MM (NI ACT­1) PATIALA HOUSE COURTS NEW DELHI Case No. 3275/1, 3276/1 & 3277/1 Page 27 of 27