Delhi District Court
Upon Hiten P. Dalal vs . Bratindranath Banerjee (2001) 6 Scc ... on 21 March, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE (NI-03),
CENTRAL, TIS HAZARI COURTS, DELHI
Presided over by: Ms. Isha Singh
Case no. : 4824/2017
Unique Case ID no. : DLCT020075952017
In the matter of :
Smt. Sumita Mani,
W/o Sh. Sanjay Mani,
R/o 378, Bagh Kare Khan,
Kishan Ganj,
Delhi -110007 ...COMPLAINANT
Versus
Sh. Surender Pal Pujara
R/o C-3 F, Ground Floor,
Basant Lane,
Paharganj,
Delhi-110055. ...ACCUSED
1. Name of the Complainant : Ms. Sumita Mani
2. Name of the Accused : Mr. Surender Pal Pujara
3. Offence complained of or proved : Section 138, Negotiable Instruments
Act, 1881
4. Plea of the Accused : Not Guilty
5. Date of Filing : 24.03.2017
6. Date of Reserving Order : 11.03.2022
7. Date of Pronouncement : 21.03.2022
8. Final Order : ACQUITTED
CC No. 4824/17 Sumita Mani v. Surender Pal Pujara Page 1 of 19
BRIEF STATEMENT OF REASONS OF DECISION
FACTUAL MATRIX
1. The present complaint has been filed by Ms. Sumita Mani (hereinafter "complainant")
against Sh. Surender Pal Pujara (hereinafter "accused") under Section 138 of the
Negotiable Instruments Act, 1881 (hereinafter "NI Act").
2. The substance of allegations, as contained in the complaint, are as follows:
(a) That the accused was working in railways and developed a friendly relation with
the husband of the complainant and thereafter, started visiting the house of the
complainant. That, in the month of December 2016, the accused was in the need
of money and approached the complainant for a loan of Rs. 1,75,000/- for a period
of two months with the assurance that he shall return the same within time.
(b) Considering the urgent need of the accused, the complainant arranged the amount
as requested for and paid to the accused, a loan of Rs.1,75,000/- on 13.12.2016.
That the accused also acknowledged the receipt of the said loan amount and
assured the complainant to repay the amount within two months.
(c) That, after about two months from the date of receipt of loan amount, the accused,
towards the discharge of his liability, signed, issued and handed over three
cheques bearing no. 091833 dated 13.02.2017 in the sum of Rs. 1,00,000/-;
091834 dated 13.02.2017 in the sum of Rs. 25,000/- and 091837 dated 13.02.2017
in the sum of Rs. 50,000/- all drawn on Allahabad Bank, Northern Railway
Headquarter, Baroda House, New Delhi-7, with the assurance that the same are
good for payment.
(d) The aforesaid cheques were presented by the complainant for payment through
her banker -Allahabad Bank, Kishan Ganj, Delhi-110007 which were returned as
dishonoured with the remarks "Funds Insufficient" vide separate return memos
dated 14.02.2017. Thereafter, the complainant sent a legal notice dated
17.02.2017. Despite service, the accused failed to repay the cheque amount within
the stipulated period and hence, the present complaint was filed on 24.03.2017
under section 138 of the NI Act.
CC No. 4824/17 Sumita Mani v. Surender Pal Pujara Page 2 of 19
APPEARANCE OF THE ACCUSED
3. Pre-summoning evidence was led by the complainant and upon finding a prima facie
case against the accused, he was summoned to face trial vide order dated 31.10.2017,
and after his appearance, notice of accusation under Sec. 251, The Code of Criminal
Procedure, 1973 (hereinafter "CrPC") was served upon him on 15.10.2018 to which
he pleaded not guilty and claimed trial. After perusal of the cheque, the accused
admitted his signatures. He further stated that he received the legal demand notice. At
the time of framing of notice under Sec. 251 CrPC, the accused took the following
plea of defence:
"...The cheques in question were given as security to the husband of
the complainant as he is bookie of the cricket matches. There is a
dispute with respect to the payments between the husband of the
complainant and me. I have already paid most of the amount along
with interest and only some amount remains to be paid."
4. Considering the plea of defence raised, accused was allowed the opportunity under
Sec. 145(2) NI Act, to cross-examine the complainant vide order dated 27.04.2019.
5. During the course of trial, the complainant led the following oral and documentary
evidence in order to prove his case beyond reasonable doubt:
Oral Evidence
CW1 Ms. Sumita Mani (complainant)
CW2 Mr. Sunil Kumar, Sr. Manager,
Allahabad Bank, Kishan Ganj
Branch, Delhi
Documentary Evidence
Ex. CW 1/1 Cheque in question bearing no.
091833 dated 13.02.2017 in the sum
of Rs.1,00,000/-.
Ex. CW 1/2 Cheque in question bearing no.
091834 dated 13.02.2017 in the sum
of Rs.25,000/-.
CC No. 4824/17 Sumita Mani v. Surender Pal Pujara Page 3 of 19
Ex. CW 1/3 Cheque in question bearing no.
091837 dated 13.02.2017 in the sum
of Rs.50,000/-.
Ex. CW 1/4 Return Memo for cheque bearing
no. 091833, 091834, 091837 with
the remarks "funds insufficient"
Ex. CW 1/5 Legal Notice dated 15.02.2017
Ex. CW 1/6 Postal Receipt
Postal Receipt
Ex. CW 1/7
Internet-generated Tracking Report
Ex. CW1/8
Internet-generated Tracking Report
Ex.CW1/9
Duly stamped and signed return
Ex. CW2/1
Memo for cheque bearing no.
091833, 091834, 091837 with the
remarks "funds insufficient"
Duly stamped and signed cheque
Ex. CW2/2
Deposit slips dated 13.02.2017 for
the cheques in question
Duly stamped and signed copy of
Ex. CW2/3
page no. 24 of the cheque returning
memo register no.3 showing the
entries of the cheque in question on
14.02.2017.
Once the aforesaid evidence was led, thereafter cross-examination was closed vide a
separate statement of the complainant recorded to that effect.
STATEMENT OF THE ACCUSED
9. After the completion of complainant evidence and before the start of defence evidence,
in order to enable the accused to personally explain the circumstances appearing in
evidence against him, his statement under Sec. 313, CrPC was recorded without oath.
In his statement under Sec. 313 CrPC, the accused denied the complainant's version
and stated that neither has he met the complainant before the institution of the present
CC No. 4824/17 Sumita Mani v. Surender Pal Pujara Page 4 of 19
case nor has he taken any loan from her. As regards the legal demand notice, he denied
receiving the same stating that during the year 2018, w.e.f. 04.02.2018. he was
admitted in Railway Hospital and on 06.02.2018, since he was referred to Medanta
Hospital Gurgaon and remained on ventilator for about 22 days, therefore the said
legal demand notice was never served upon him. Apart therefrom, he stated that:
"Present cheques in question were given as blank signed cheques by me
to the husband of the complainant who operates as a bookie and the
same were given for making bets as was told by the husband of the
complainant. However, I did not enter into any bets.."
6. Pursuant thereto, the accused entered the witness box himself and examined himself as
a witness after moving an application under Sec. 315 CrPC.
Oral Evidence
DW1 Surender Pal Pujara (Accused)
7. Thereafter, final arguments were heard in the present case, I have heard the learned
counsels on both sides and given my thoughtful consideration to the material
appearing on record.
ARGUMENTS
8. It has been argued by the Ld. Counsel for the complainant that all ingredients of Sec.
138 NI Act, have been fulfilled in the present case and that the complainant has duly
proved her case. It was argued that accused admitted his signatures on the cheques in
his plea of defence recorded at the time of framing of notice under Section 251 Cr.P.C
as well as in his statement U/s 313 Cr.P.C. He argued that the accused has not been
able to bring anything on record to prove that the cheques in question were given as
security to the husband of the complainant on the premise that he operated as a bookie
of cricket matches. He also argued that the accused has not been able to prove that he
did infact enter into any bet for the purposes of which, he handed over the cheque in
question to the husband of the complainant. It was also argued that the accused had
taken different and inconsistent lines of the defence as regards the receipt of legal
demand notice. He also argued that accused never gave reply to the legal demand
notice nor did he file any complaint for misuse of his cheques. It was argued that
CC No. 4824/17 Sumita Mani v. Surender Pal Pujara Page 5 of 19
accused failed to raise the probable defence to disprove the case of complainant and to
rebut the presumptions under Section 118 and Section 139 NI Act. The Ld. Counsel
for the complainant has relied upon Sunil Dutt v. Mohan lal 2017 (2) DCR 118 (HP);
Chuni Lal v. Indira Seth 2017 (1) DCR 195 (HP); Mr. Bipin Mathurdas Thakkar v.
Shri. Samir Alias Sameer Dessai, & ANR 2016 (2) DCR 363 (Bom). As such, it is
prayed that the accused be punished for the said offence.
9. Per contra, Ld. Counsel for the accused has argued that the complainant has failed to
establish her case beyond reasonable doubt. It was argued that the cheques in question
were given to the husband of the complainant who worked as a bookie of cricket
matches and who also induced the accused to bet in order to double his money. He
also argued that complainant did not sufficiently disclose the sources of funds for the
present loan transaction. It was contended that the complainant herself admitted that
she was a housewife and had no source of income. Ld. Counsel also pointed out that
the complainant could not establish on record that sufficient funds in valid currency
notes were available with her at the time of advancement of loan as the country was
undergoing demonetization. Ld. Counsel argued that the complainant admitted that the
loan amount was neither withdrawn by her from her account nor was currency worth
the loan amount gotten exchanged by her from the bank. He argued that the
complainant has brought nothing on record to prove that loan was actually advanced
by her as claimed in the complaint. He argued that there was no written document of
the loan. He argued that evidence of complainant suffered from material lapses and
was not sufficient to establish the case against accused. He submitted that complainant
has failed to prove her case beyond reasonable doubt. It is his case that the initial
burden to prove debt always remains on the complainant, which has not been
discharged as the complainant has failed to prove the existence of debt/liability to the
extent of Rs.1,75,000. Further, the Ld. Counsel for the accused has argued rebutting
the presumptions raised against the accused. In order to buttress his submissions, ld.
Counsel for the accused has relied upon K. Prakashan v. P.K. Surenderan (2008) 1
SCC 258; Krishna Janardhan Bhat v. Dattatraya G. Hegde AIR 2008 Supreme
Court 1325; Sanjay Mishra v. Ms. Kanishka Kapoor @ Nikki, Criminal Application
no.4694 of 2008 (Bom HC); K. Subramani v. K. Damodara Naidu 2015 (1) JCC
(NI) 23; John K. Abraham v. Simon C. Abraham & ANR 2014 (1) JCC (NI) 31;
Dilbagh Kaur Chandok Thr. Lrs... v. State & Anr CRL.L.P. 231/2017 on 6
CC No. 4824/17 Sumita Mani v. Surender Pal Pujara Page 6 of 19
February, 2019 (Del HC); M.S. Narayana Menon @ Mani v. State of Kerala (2006)
6 SCC 39 (SC). As such, it is prayed that the accused be acquitted.
INGREDIENTS OF THE OFFENCE
10. 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 138 of NI Act, the prosecution must fulfil all the essential ingredients of the
offence. Perusal of the bare provision reveals the following necessary ingredients of
the offence: -
First Ingredient: The cheque was drawn by a person on an account maintained
by him for payment of money and the same is presented for payment within a
period of 3 months from the date on which it is drawn or within the period of its
validity;
Second Ingredient: The cheque was drawn by the drawer for discharge of any
legally enforceable debt or other liability;
Third Ingredient: The cheque was returned unpaid by the bank due to either
insufficiency of funds in the account to honour the cheque or that it exceeds the
amount arranged to be paid from that account on an agreement made with that
bank;
Fourth Ingredient: A demand of the said amount has been made by the payee or
holder in due course of the cheque by a notice in writing given to the drawer
within thirty days of the receipt of information of the dishonour of cheque from the
bank;
Fifth Ingredient: The drawer fails to make payment of the said amount of money
within fifteen days from the date of receipt of notice.
11. The accused can only be held guilty of the offence under Section 138 NI Act 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.
12. Notably, the first, third, fourth and fifth ingredient have been duly proved without
there being any real controversy regarding the same.
(a) The complainant has proved the original cheques, Ex. CW1/1, Ex. CW1/2 and
Ex.CW1/3 which the accused has not disputed as being drawn on the account of
CC No. 4824/17 Sumita Mani v. Surender Pal Pujara Page 7 of 19
the accused. It is not disputed that the cheques in question was presented within
their validity period.
(b) The cheques in question were returned unpaid vide return memo Ex. CW1/4 due to
the reason, "funds insufficient". Since the return memo did not bear any date,
therefore, witness CW2 from the bank of the complainant was summoned who
brought on record Ex.CW2/1, i.e., duly stamped and signed return memo for the
cheques in question bearing no. 91833, 91834 and 91837. In order to prove the
date of return of the cheques in question, CW2 also brought on record the duly
stamped and signed deposit slips dated 13.02.2017 for the cheques in question
which is Ex.CW2/2 and duly stamped and signed copy of the relevant page from
the cheque returning register which showed the date of returning of the cheques in
question as 14.02.2017 vide Ex.CW2/3.
(c) The complainant has proved on record the legal notice vide Ex. CW1/5 dated
15.02.2017, postal receipts vide Ex. CW1/6, Ex. CW1/7 and tracking report Ex.
CW1/8 and Ex.CW1/9 to prove the fact of sending legal notice. Despite admitting
at the stage of framing of notice that he had received the legal demand notice, the
accused at the stage of recording of statement under Sec.313 CrPC, has denied the
receipt of legal demand notice.
This assertion of non-receipt of legal notice cannot help the accused in
escaping liability under section 138 NI Act, especially keeping in mind that firstly,
since the version of the accused as regards receipt of legal demand notice has
remained inconsistent; secondly, the accused entered appearance in the court
pursuant to service upon the same address as was mentioned in the legal demand
notice. It has been settled by the Hon'ble Apex Court in the judgement reported as,
C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555 that an accused who
claims that he did not receive the legal notice, can, within 15 days of receipt of
summons from the court, make payment of the cheque amount, and an accused
who does not make such payment cannot 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 General Clauses Act and Section 114 of the
Evidence Act.
13. On analysis of the facts and legal position stated above, the Court finds the parties to
be at variance on the primary issue i.e. whether the cheque in question were issued in
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favour of the complainant in order to discharge the legal liability of the accused which
forms the second ingredient in the Section 138, NI Act.
14. As regards the second ingredient, it has to be proved that the cheques in question were
drawn by the drawer for discharging a legally enforceable debt. In the present case, the
signatures of the accused on the cheques in question are not denied. Under the NI Act,
once the accused admits his signatures on the cheque, certain presumptions are drawn,
which result in shifting of onus. Section 118(a) of the NI Act lays down the
presumption that every negotiable instrument was made or drawn for consideration.
The second presumption is contained under Section 139 of NI Act. The provision lays
down the presumption that the holder of the cheque received it for the discharge, in
whole or part, of any debt or other liability. The combined effect of these two
provisions is a presumption that the cheque was drawn for consideration and given by
the accused for the discharge of debt or other liability. Both the sections use the word
"shall", which makes raising the presumption imperative for the court, once the
foundational facts required to raise the presumption are proved {Reliance is placed
upon Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16}.
15. Further, it has been held by a three-judge bench of the Hon'ble Apex Court in the
case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption
contemplated under Section 139 of NI 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 summarise the principles enumerated by
this Court in the following manner:
25.1. Once the execution of cheque is admitted Section 139 of theAct
mandates a presumption that the cheque was for the discharge of any debt
or other liability.
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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 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."
16. The presumptions raised under Section 118(b) and Section 139 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 either there
was no legally enforceable debt or other liability. In the present case, ld. counsel for
the accused has raised many defences to rebut the presumption, which are discussed
hereinbelow:
THAT THE COMPLAINANT DID NOT HAVE FINANCIAL CAPACITY TO
ADVANCE THE LOAN IN QUESTION
17. Ld. counsel for the accused has contended that the complainant did not possess
sufficient financial means to advance a huge loan of Rs.1,75,000/- as claimed in the
complaint. Ld. Counsel for the accused has argued that the complainant has not been
able to furnish proof of her earnings/savings to prove her financial solvency.
18. At this stage, it is pertinent to refer to the decision of the Hon'ble Supreme Court in
the case of APS Forex Services Pvt. Ltd. v. Shakti International Fashion Linkers &
Ors. 2020 SCC OnLine SC 193, it was observed by the Hon'ble Apex Court, inter
alia, as under:-
CC No. 4824/17 Sumita Mani v. Surender Pal Pujara Page 10 of 19
"20. ..... In the present case, the accused never questioned the financial
capacity of the complainant. We are of the view that whenever the
accused has questioned the financial capacity of the complainant in
support of his probable defence, despite the presumption under Section
139 of the N.I. Act about the presumption of legally enforceable debt and
such presumption is rebuttable, thereafter the onus shifts again on the
complainant to prove his financial capacity and at that stage the
complainant is required to lead the evidence to prove his financial
capacity, more particularly when it is a case of giving loan by cash and
thereafter issuance of a cheque. That is not a case here."
19. Similar views were expressed in Basalingappa (supra), wherein it was observed as
under :-
"30. We are of the view that when evidence was led before the Court to
indicate that apart from loan of Rs.6 lakhs given to the accused, within
02 years, amount of Rs.18 lakhs have been given out by the complainant
and his financial capacity being questioned, it was incumbent on the
complainant to have explained his financial capacity. Court cannot insist
on a person to lead negative evidence...." (emphasis supplied).
20. Thus, it becomes clear that in order to raise a probable defence, it is open to the
accused to challenge the financial means of the complainant after which the onus
shifts upon the complainant to prove the same.
21. Even the Hon'ble High Court of Delhi in the case Kulvinder Singh v. Kafeel Ahmad
2014 (2) JCC (NI) 100 has placed reliance upon the Supreme Court judgment in the
case of K. Prakashan v. P.K Surenderan; (2008) 1 SCC 258 to observe that if a huge
amount of money is advanced as a loan then the person who has purportedly advanced
the loan must also show the solvency to the extent of the loan either through the bank
account or through other means. Thus, in friendly loan transactions, the source of loan
assumes importance.
22. In the present case, when the complainant was questioned as to her financial capacity
at the time of her cross-examination, she herself admitted that she does not have any
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source of income as she is a housewife. She also admitted that for the purposes of
advancing loan to the accused, she did not even take any kind of loan from her
husband or her son or any other family member. When further enquired about the
source of funds for the present loan transaction, the complainant stated that she had
lying with her, Rs.1,75,000/- at the time when demonetization was declared in the
country w.e.f. 08.11.2016 and the same was lent to the accused.
23. At this point, it becomes relevant to discuss the impact of demonetization on the
liquidity of funds available with the people all over the country. In order to eliminate
black money and the growing menace of counterfeit currency notes, the Government
of India demonetized currency notes of Rs.500 and Rs.1000 w.e.f. midnight of
08.11.2016 vide Gazette Notification No 2652 dated November 08, 2016. Pursuant to
this announcement, the Reserve Bank of India issued enabling instructions for the
effective implementation of the demonetization policy in the country vide RBI/2016-
17/112 DCM (Plg) No.1226/10.27.00/2016-17 dated November 08, 2016. Banks were
allowed to exchange old currency notes up to Rs.4000/- against valid identity proof
and requisition slip, withdrawal of Rs. 10,000/- per day was allowed aggregating upto
Rs.20,000/- per week and ATM withdrawals were limited to Rs.2000/- per day.
24. Thus, when the complainant was questioned as to how could she lend loan worth
Rs.1,75,000/- at the time when the country was grappling with the after-effects of
demonetization, she stated that an amount of Rs.1,75,000/- was lying with her.
However she also admitted that the neither was this amount withdrawn by her from
her account during the period w.e.f. 08.11.2016 to 11.12.2016 nor was currency worth
Rs.1,75,000/- gotten exchanged from the bank. In fact, it is her deposition that
currency worth Rs.8,000/- only was gotten deposited in her account/ exchanged from
the bank w.e.f. 08.11.2016 to 12.12.2016.
25. In these set of facts, what becomes clear is that if loan were actually granted to the
accused, then the same was in old currency notes, which were in circulation before
demonetization. With the declaration of demonetization, the legal tender character for
currency/bank notes of Rs.500 and Rs.1000 was withdrawn and once the legal tender
was withdrawn, notes of Rs.500 and Rs.1000 did not hold any monetary value. It is
the case of the complainant that the money was lent to the accused on 13.12.2016 and
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even at the time of her cross-examination, she admitted that loan was granted to the
accused only after 08.11.2016 i.e., when demonetization was declared in the country.
Even the fact that loan was lent to the accused in old currency notes also stands
admitted by the complainant during her cross-examination. Therefore, even if for the
sake of arguments, it is believed that the complainant did infact grant loan to the
accused in the sum of Rs.1,75,000/- then the same was in old currency notes which did
not have any monetary value.
26. In view of the above discussion, it is established that the complainant has failed to
bring on record proof as to her financial solvency to lend loan worth Rs.1,75,000/- in
legal tender/valid currency notes to the accused.
THAT THE CASE OF THE COMPLAINANT SUFFERS FROM DEFICIENCES
27. Ld. Counsel for the accused has argued that the case of the complainant must stand on
its own legs and it cannot take advantage of the infirmities in the case of the accused.
He has argued that the case of the complainant suffers from inconsistencies which
makes her case doubtful.
28. The complainant in her complaint has stated that the loan amounting to Rs.1,75,000/-
was granted to the accused on 13.12.2016. However, at the stage of cross-examination,
the complainant failed to recall the date of advancement of loan. Further, the
complainant, in her complaint, stated that the accused had duly acknowledged the
receipt of loan. However, at the stage of cross-examination, she admitted that she had
not filed any such acknowledgement receipt issued by the accused, alongwith the
complaint.
29. The complainant has also stated in her complaint and evidence by way of affidavit,
that the cheques in question were handed over to her by the accused two months after
the date when the loan was granted i.e., 13.12.2016. However, she retracted from her
own version twice at the stage of cross-examination when firstly she stated that the
cheques in question were handed over to her on 13.12.2016 itself, and secondly when
she stated that the cheques in question were given in December 2017. This goes on to
cast a doubt on the case of the complainant as firstly, her version as regards handing
over of the cheques in question has remained inconsistent and secondly, the factum of
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filing of the present complaint on 24.03.2017 makes it highly improbable that the
cheques in question were handed over to the complainant in December 2017.
30. Further, the counsel for the accused has pointed out that the complainant has failed to
bring any proof on record as to the advancement of loan. Neither any document, or
receipt has been produced on record to prove the grant of loan, nor has any witness
been examined, who may be privy to the transaction. The law has been settled in K.
John v. Tom Vargese: JT 2007 (13) SC 222 wherein the Apex Court has observed as
under:-
"10.... The High Court was entitled to take notice of the conduct of the
parties. It has been found by the High Court as of act that the complainant
did not approach the court with clean hands. His conduct was not that of a
prudent man. Why no instrument was executed although a huge sum of
money was allegedly paid to the respondent was a relevant question which
could be posed in the matter. It was open to the High Court to draw its
own conclusion therein. Not only no document had been executed, even no
interest had been charged. It would be absurd to form an opinion that
despite knowing that the respondent even was not in a position to
discharge his burden to pay instalments in respect to the prized amount,
an advance would be made to him and that too even after institution of
three civil suits. The amount advanced even did not carry any interest. If in
a situation of this nature, the High Court has arrived at a finding that the
respondent has discharged his burden of a proof cast on him under Section
s139 of the Act, no exception thereto can be taken."
31. Similar views were expressed by the Hon'ble Supreme Court of India in the case of
Vijay v. Laxman and Anr. (2013) 3 SCC 86, wherein it was observed that:
"the absence of any details of the date on which the loan was advanced as
also the absence of any documentary or other evidence to show that any
such loan transaction had indeed taken place between the parties is a
significant circumstance."
32. In light of the aforesaid position of law, it can be said that the conduct of the
complainant is not that of a prudent person. She advanced loan to the accused without
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any documentary proof. In fact, it is the case of the complainant that the accused grew
close to the husband of the complainant and on this basis alone, friendly loan worth
Rs.1,75,000/- was granted to the accused by the complainant after arranging the same.
At the same time what also stands admitted by the complainant during her cross-
examination, is the fact that she had neither met the wife of the accused ever and nor
did she ever visit the house of the accused. These circumstances go on to cast a doubt
on the case of the complainant.
THAT THE CHEQUES IN QUESTION WERE GIVEN AS SECURITY CHEQUES
TO THE HUSBAND OF THE COMPLAINANT
33. The accused as DW-1 deposed that he knew the husband of the complainant, Mr.
Sanjay Mainee as a bookie of cricket matches and had met him in Karol Bagh Union
Club. He stated that the husband of the complainant allured him in January 2017 to bet
on cricket matches so as to earn more money and, in this way, the husband of the
complainant compelled him and got the cheques in question (blank signed cheques)
issued from him as a security for betting. The accused denied the averments of the
complaint and stated that there was never any loan transaction between him and the
complainant and that the present complaint has been filed by the complainant at the
behest of her husband.
34. In order to prove his case, the accused produced on record his mobile phone
containing messages from another mobile phone bearing no. 9999638222. The
accused deposed that the said number belonged to Mr. Sanjay Mainee, the husband of
the complainant. The messages running in 11 pages were printed and placed on record
vide Ex. DW1/1 to DW1/11 (Colly). The counsel for the accused raised objection as to
the mode of exhibit for these messages.
35. Section 65B, Indian Evidence Act (Hereinafter referred as "IEA") lays down that any
information contained in an electronic record which is printed on a paper, stored,
recorded or copied in optical or magnetic media produced by a computer shall be
deemed to be also a document and shall be admissible in any proceedings, without
further proof or production of the original, as evidence of any contents of the original,
if the conditions mentioned in this section are satisfied in relation to the information
and computer in question. Under Section 65B (4), IEA, a certificate is required to
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given identifying the electronic record containing the statement and describing the
manner in which the same was produced. At the same time, the cardinal rule of
Evidence is that the contents of the documents may either be proved by primary or
secondary evidence. Section 65, Indian Evidence Act prescribes the conditions under
which the secondary evidence can be led. Thus, in the event when the original is either
not in the possession of the witness or the same is destroyed or lost, then the need
arises for bringing on secondary evidence. In the present case, Ex. DW1/1 to DW1/11
(Colly.) is not supported by certificate under Sec.65B, IEA. However, the perusal of
the record reveals that the original phone containing the messages that constitute Ex.
DW1/1 to DW1/11 (Colly.) was brought to the court and showed to the court. In the
above circumstances, since the original mobile phone containing the messages has
been seen and returned by the Court, there arises no need for filing a supporting
affidavit/certificate under Section 65B, Indian Evidence Act for bringing on record the
print outs of the messages constituting Ex. DW1/1 to DW1/11 (Colly) and hence, the
absence of the same shall not render Ex. DW1/1 to DW1/11 (Colly) as inadmissible.
Therefore, the objection raised by the complainant as regards the mode of exhibit for
Ex. DW1/1 to DW1/11 (Colly) is decided in favour of the accused and against the
complainant.
36. It remains undisputed that the number 9999638222 belonged to the husband of the
complainant as the same also stands admitted by the complainant at the stage of her
cross-examination. The accused, in order to prove his defence, even confronted the
complainant during her cross-examination, with document MARK X (colly. 12 pages)
and enquired whether the phone number 9999638222 belonged to her husband or not,
to which the complainant replied in affirmative and agreed that the said number
belonged to her husband.
37. Although the complainant admitted that the phone number from which messages were
sent belonged to her husband, however she denied the suggestions that her husband
was a cricket bookie and that he induced the complainant to bet on cricket matches so
as to double his money. Even perusal of DW1/1 to DW1/11 (Colly.) does not
conclusively establish that the cheques in question were infact handed over by the
accused to the husband of the complainant as a security for betting in cricket.
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38. In his cross-examination, the accused stated that he used to visit the union club as a
guest of Mr. R.K. Minocha, however neither Mr. R.K. Minocha was cited as a witness
nor any guest receipt was brought on record to suggest that the accused did infact visit
as a guest. No witness was examined who was privy to the transaction between the
husband of the complainant and the accused. In fact, the accused deposed that the
husband of the complainant took him to one side where no other member was present
and lured him to bet on cricket matches. No date either of alleged allurement by the
husband of the complainant or that of handing over of the cheques in question to the
husband of the complainant has been mentioned.
39. Thus, the accused has not been able to bring sufficient proof on record to establish that
the cheques in question were handed over to the husband of the complainant as a
security for entering into betting transactions.
40. At this stage, it is imperative to refer to the judgement of the Hon'ble Supreme Court
in the case of Kumar Exports v. Sharma Carpets (2009) 2 SCC 513, wherein the
Apex Court has held that in a trial under Sec. 138, NI Act in a trial under Section 138
of the Act a presumption will have to be made that every negotiable instrument was
made or drawn for consideration and that it was executed for discharge of debt or
liability once the execution of the negotiable instrument is either proved or admitted.
As soon as the complainant discharges the burden to prove that the instrument, say a
note was executed by the accused, the rules of presumptions under Sections 118 and
139 of the Act help him shift the burden on the accused. The presumptions will live,
exist and survive and shall end only when the contrary is proved by the accused, that
is, the cheque was not issued for consideration and discharge of any debt or liability. A
presumption is not in itself evidence but only makes a prima facie case for a party for
whose benefit it exists. The Apex Court further held that in a trial under Section 138 of
the Act the accused has two options. He can either show that consideration and debt
did not exist or that under the particular circumstances of the case the non-existence of
consideration and debt is so probable that a prudent man ought to suppose that no
consideration and debt existed. To rebut the statutory presumption an accused is not
expected to prove his defence beyond reasonable doubt as is expected of the
complainant in a criminal trial. The accused may adduce direct evidence to prove that
the note in question was not supported by consideration and that there was no debt or
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liability to be discharged by him. However, the Court need not insist in every case that
the accused should disprove the non-existence of consideration and that by leading
direct evidence because the existence of negative evidence is entirely possible nor
contemplated. At the same time it is clear that bare denial of the passing of the
consideration and existence of that, apparently would not serve the purpose of the
accused. Something which is probable has to be brought on record for getting the
burden of proof shifted to the complainant. To disprove the presumption the accused
should bring on record such facts and circumstances, upon consideration of which the
Court may either believe that the consideration and debt did not exist or their non-
existence was so probable that a prudent man would under the circumstances of the
case, act upon the plea that they did not exist. Apart from adducing direct evidence to
prove that the note in question was not supported by consideration or that he had not
incurred any debt or liability, the accused may also rely upon circumstantial evidence
and if the circumstances so relied upon are compelling, the burden may likewise shift
again on the complainant.
41. Although the defence of issuance of cheques in question as security cheques to the
husband of the complainant for betting transactions does not appear to be convincing
to the court, however, this court is of the view that the accused, by way of cross-
examination of the complainant has brought on record facts and circumstances to
disprove the claim of the complainant. In the absence of proof to advance loan worth
Rs.1,75,000/- in valid currency notes, the financial capacity of the complainant
remains sufficiently challenged. Apart therefrom, the case of the complainant suffers
from deficiencies as there is no proof on record to corroborate the advancement of
loan.
42. Thus, second ingredient is not fulfilled in the present case.
CONCLUSION
43. 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 Section 139 of NI Act by punching holes in the
case of the complainant and making the version of the complainant doubtful. Cogent
evidence is required to be proved beyond reasonable doubt to secure conviction in a
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criminal trial. The accused has been successful in establishing a probable defence from
the evidence of the complainant and the circumstances of the case that there was no
legal liability of Rs. 1,75,000/-. The challenge raised on the financial capacity of the
complainant to lend the loan amount has not been met with any satisfactory rebuttal by
the complainant. She has failed to prove her solvency and the source of loan.
44. As a result, the complainant has failed to prove the offence beyond reasonable doubt
and the accused has been able to raise a probable defence. As such, the complaint of
the complainant is dismissed and the accused Surender Pal Pujara is hereby
acquitted of the offence of Section 138 of the Negotiable Instruments Act, 1881.
ISHA Digitally signed
by ISHA SINGH
SINGH
ORDER:ACQUITTED Date: 2022.03.21 17:16:19 +05'30' (Isha Singh) Announced in open court on 21.03.2022. MM / NI Act -03 / Central Delhi /21.03.2022 Note: This judgement contains 19 pages and each page has been signed by me.
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