Delhi District Court
Cnr No.Dlsw02-045167-2019 Jaspreet ... vs Sanjay Kumar Page 1 Of 18 on 18 May, 2023
IN THE COURT OF MS. JYOTI NAIN
METROPOLITAN MAGISTRATE (SOUTH WEST)
N I ACT-10, DWARKA DISTRICT COURT : NEW DELHI
CC NO: 32497/2019
CNR no.DLSW02-045167-2019
Jaspreet Singh,
S/o Sh. Harjit Singh,
R/o House No.6/132,
Subhash Nagar, New Delhi-110027.
.....Complainant
Versus
Sanjay Kumar,
S/o late Sh. Ashok Kumar,
R/o House No.WZ-241,
C-80 yards colony, Tilak Nagar,
New Delhi-110018.
.......Accused
Offence Complained of or proved : U/s 138 of Negotiable
Instruments Act,
1881
Plea of the Accused : Pleaded not guilty
Date of filing : 29.08.2019
Date of Institution : 30.08.2019
Date of reserving judgment/order : 15.05.2023
Final Order/Judgment : Acquitted
Date of pronouncement : 18.05.2023
JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by the complainant under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'N.I. Act ').
2. Briefly stated, case of the complainant is that accused had friendly relations with the complainant and that in the month of Digitally signed by CNR no.DLSW02-045167-2019 Jaspreet Singh vs Sanjay Kumar Page 1 of 18 Jyoti Jyoti Nain Date:
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December, 2018, he approached the complainant and requested for a friendly loan of Rs.3,50,000/- stating his financial constraint. That keeping in view the good relations with the accused, complainant arranged an amount of Rs.3,25,000/- and handed over the same to the accused as friendly loan with assurance from the accused that he will repay the same within two months i.e. by February, 2019.
That after completion of the aforesaid period, complainant visited accused in the last week of February, 2019 and asked him to return the loan amount. At this, accused issued a cheque bearing no.041145 dated 04.03.2019 for a sum of Rs.3,25,000/ drawn on Oriental Bank of Commerce, Tilak Nagar, New Delhi110018, (hereinafter referred to as cheque in question), with assurance that the same would be honored on its presentation.
That the complainant presented the cheque in question with its banker but the same was dishonored with remarks "Funds Insufficient" vide return memo dated 22.04.2019. That thereafter, the complainant sent a legal demand notice dated 01.05.2019 through Speed Post and Registered AD demanding payment of the cheque amount within 15 days of the receipt of notice, but to no avail. Hence, the present complaint under Section 138 of Negotiable Instruments Act, 1881.
3. On 30.08.2019, pre-summoning evidence was led by the complainant and in his pre-summoning evidence, he examined himself on affidavit Ex.CW1/A. He reiterated the contents of complaint and placed on record following documents:- Digitally signed by Jyoti Jyoti Nain Date:
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(i) Original cheque is Ex.CW1/1;
(ii) Returning Memo is Ex.CW1/2;
(iii) Legal notice is Ex.CW1/3;
(iv) Postal receipts are Ex.CW1/4 & Ex.CW1/5 and
(v) Delivery report is Ex.CW1/6 (colly).
4. Upon appreciation of pre-summoning evidence,
cognizance of offence under section 138 of The Negotiable Instruments act was taken and summons were issued to the accused. On 20.10.2022, notice was served on the accused, to which he pleaded not guilty and claimed trial. He admitted his signatures on the cheque in question but denied filling in rest of the particulars. He further denied receiving of legal demand notice but admitted that the address mentioned on the notice is his correct address. In his defence, he further stated as under:-
"I do not know the complainant. I have seen him today for the first time in the court itself. Some cheques of mine have gotten lost and I had also filed a complaint in this regard. Another cheque of mine belonging to my Oriental Bank Account which was lost had also been misused by one Mukesh Gupta. In that case I have been acquitted. I do not owe any liability towards the complainant. Complainant has misused my blank signed cheque".
5. Complainant evidence:
Thereafter, vide order dated 20.10.2022, on the oral request of the accused, plea of accused u/sec 145(2) NI Act to cross- examine the complainant was allowed. In complainant's evidence, complainant examined himself as CW1. He was subjected to cross-examination at length by Ld. Counsel for the Digitally signed by Jyoti Jyoti Nain Date:
CNR no.DLSW02-045167-2019 Jaspreet Singh vs Sanjay Kumar Page 3 of 18 Nain 2023.05.18 15:51:38 +0530 accused. No other complainant witness examined and vide separate statement, he closed his evidence on 03.12.2022.
6. Examination of the accused under section 313 Cr.P.C.:
Thereafter, the accused was examined under section 313 Cr. P.C. by the court on 07.01.2023 wherein he stated following in his defence:-
"I did not know the complainant from before. For the first time, I have seen him in the court itself. Since, I did not know the complainant, thus, there arise no question of asking him for money. I had lost some of my cheques and cheque in question is one of those. I have already filed complaint in this regard. I did not receive the legal notice. Dishonor of cheque is a matter of record. The complainant has misused my lost cheque".
Further, accused preferred leading defence evidence.
7. Defence Evidence:
Thereafter, accused moved an application u/sec 315 CrPC for examining himself as defence witness. The application was allowed and accused examined himself as DW-1. He was duly cross-examined by Ld. Counsel for complainant. Vide separate statement, accused closed his defence evidence. Thereafter, matter was listed for final arguments.
8. Arguments, Law Applicable and Appreciation of Evidence:
I have perused the entire record as well as evidence led by the complainant as well as by the accused and heard final arguments on behalf of both the parties at length. Before appreciating the facts of the case in detail for the purpose of Digitally signed by Jyoti Jyoti Nain Date:
CNR no.DLSW02-045167-2019 Jaspreet Singh vs Sanjay Kumar Page 4 of 18 Nain 2023.05.18 15:51:50 +0530 decision, let relevant position of law be discussed while appreciating the evidence on record:-
For the offence under Section 138 the Act to be made out against the accused, the complainant must prove the following ingredients, that:-
(i) the accused issued a cheque on account maintained by him with a bank and the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
(ii) the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
(iii) the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
(iv) the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
(v) the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
Out of these five points, accused has raised objections regarding point number (ii) and (iv) only.
9. So far as contention is raised regarding receipt of legal demand notice, it can be seen that the accused has admitted the address mentioned on the legal demand notice as his correct address. Thus, presumption can be drawn u/sec 27 of General Clauses Act, 1897 which states that when a notice is sent by post to the correct address then the same shall be presumed to have been duly served i.e. legal demand notice once sent on the correct Digitally signed by Jyoti Jyoti Nain Date:
CNR no.DLSW02-045167-2019 Jaspreet Singh vs Sanjay Kumar Page 5 of 18 Nain 2023.05.18 15:52:01 +0530 address of the accused, there is a deemed presumption of service, the same has been held by a three judges bench of the Hon'ble Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed and Another (2007) 6 SCC 555: "Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the General Clauses Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation."
Thus, complainant has been able to prove (iv) ingredient for the commission of offence u/sec 138 NI Act as well.
10. As far as the contention regarding (ii) ingredient is concerned, the N I Act, itself raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) and secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 in whole or in part any debt or other liability.
Section 118 of the N.I Act provides : Digitally signed by Jyoti Jyoti Nain Date: Nain 2023.05.18 15:52:16 +0530 CNR no.DLSW02-045167-2019 Jaspreet Singh vs Sanjay Kumar Page 6 of 18
"Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made: (a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows:
"Presumption in favour of holder 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".
For the offence under Section 138 of the Act, the presumptions under Secton 118 (a) and 139 have to be compulsorily raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall be rebutted only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Section 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
Digitally
signed by
Jyoti Jyoti Nain
Date:
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Since in the present case, accused has admitted his signatures on the cheque, the compulsory presumption is raised in favour of the complainant, but the same is rebuttable in nature on the standards of preponderance of probabilities as has been held by Hon'ble Supreme Court of India in the case of Basalin gappa v. Mudibasappa, (2019) 5 SCC 418 : 2019 SCC OnLine SC 491 at page 422, where it has held as follows :
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
Now we have to see whether accused has been able to rebut the compulsory presumption under section 118(a) and Section 139 NI Act raised in favour of the complainant on the standards of preponderance of probabilities.
11. Ld. Counsel for the complainant has argued that since, the signatures on cheque have not been disputed by the accused, thus, mandatory presumption in favour of the complainant comes Digitally signed by Jyoti Jyoti Nain Date:
CNR no.DLSW02-045167-2019 Jaspreet Singh vs Sanjay Kumar Page 8 of 18 Nain 2023.05.18 15:52:49 +0530 into play by virtue of section 118 (a) and 139 of N I Act and there arises a presumption of cheque having been issued in dis charge of the liability.
12. This court is in agreement with the argument raised by Ld. Counsel for the complainant that the mandatory presumption lies in favour of the complainant, since accused has admitted his sig natures on the cheque in question. And now we have to see whether accused has been able to rebut the compulsory presump tion under section 118(a) and Section 139 NI Act raised in favour of the complainant on the standards of preponderance of proba bilities.
13. To rebut the mandatory presumption, Ld. Counsel for the accused challenges the very acquaintance between the accused and the complainant arguing that the accused has taken a consis tent stand during the entire trial that he did not know the com plainant from before and had seen him for the first time in this court itself. Further argued that the defence of the accused is that some cheques of his got lost and he had registered a complaint vide EFIR no.58/2019 and had also sent an intimation to his banker with regard to the same. Ld. Counsel for accused argued that there is contradiction in the stand taken by the complainant. During his crossexamination, he stated that the accused re quested him for financial help on account of illness of his daugh ter whereas in para 2 of his complaint, he has stated that accused required financial help as he was financially constrained. That in his early crossexamination, he stated that Rs.3,25,000/ were Digitally signed by Jyoti Jyoti Nain Date:
Page 9 of 18 Nain2023.05.18 CNR no.DLSW02-045167-2019 Jaspreet Singh vs Sanjay Kumar 15:53:08 +0530 given to the accused by arranging the same from one Simarpreet Singh Manni whereas in the latter crossexamination, com plainant has stated that some of the money i.e. Rs.1,25,000/ was given by him and remaining amount of Rs.2,00,000/ was given by Simarpreet Singh Manni, thus, the complainant has taken con tradictory stands during his crossexamination.
Ld. Counsel for accused further argued that in his defence, accused examined himself as DW1 and deposed that eight of his cheques issued on his Corporation Bank account including the cheque in question were misplaced and accused had filed a com plaint online and at PS Tilak Nagar vide EFIR No.58/2019. That accused had further deposed that he also referred these com plaints to his banker and instructed his bank in this regard.
That a similar complaint case bearing no.17310/2019 titled as Amit Gupta Vs. Sanjay Kumar based on almost similar facts has been filed by the same counsel as that of the complainant and in that case, accused has already been acquitted vide order dated 28.09.2022. Ld. Counsel for accused argued that accused has been successful in rebutting the mandatory presumption in favour of the complainant and thus, he must be acquitted.
Ld. Counsel for accused has relied upon various judgments namely Hiten P. Dalal Vs Bratindranath Banerjee 2001 (6) SCC 16; Bharat Barrel Vs. Drum Manufacturing AIR 1999, SC 1008; Kalamani Tex & Anr. Vs. P. Balasubramanian 2021, SCC online SC 75; Basalingappa Vs. Mudibasappa (2019) 5 Digitally signed by Jyoti Jyoti Nain Date:
CNR no.DLSW02-045167-2019 Jaspreet Singh vs Sanjay Kumar Page 10 of 18 Nain 2023.05.18 15:53:32 +0530 SCC 418; Satish Sharma Vs. State of NCT of Delhi & Anr. (2013) 204 DLT 289 & Laxmi Dyechem Vs. State of Gujrat (2012) 13 SCC 375.
14. Percontra, Ld. Counsel for complainant has argued that accused does not have any defence and has created a false story in order to avoid his liability qua the complainant. That the ac cused has taken defence that he did not know the complainant from before which is not true since, during his crossexamina tion, complainant had stated that he knew the accused from the past 67 years and accused was working in MCD, thus, same proves that complainant knew the accused from before. It is stated by the complainant that he had provided financial help to the accused since, his daughter was unwell. The fact that accused has not denied that he does not have a daughter and she was not ill, this proves that amount was advanced by the complainant to the accused.
That accused took defence that he had filed complaint with respect to the loss of his cheque in PS Tilak Nagar however, did not file any complaint on the record and has only placed on record copy of lost report i.e. Mark B. That the reason for dishonor of the cheque in question is "Funds Insufficient" and not "payment stopped by drawer". That the cheque in question got dishonored on 22.04.2019 and the lost report was filed on 27.03.2019. The lost report was filed because Digitally signed by Jyoti Jyoti Nain Date:
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an altercation took place between the accused and the com plainant at the residence of accused on 26.03.2019.
That the accused took a defence that blank signed cheques had been lost but he did not state as to for which purpose he kept the signed cheques with him. That it is not believable that a per son would always carry blank signed cheques with him and that too not a single but many cheques. That this proves that the cheque in question was given by the accused to the complainant in order to discharge his liability. Ld. Counsel for complainant argued that accused has taken inconsistent defence and has not been able to rebut the mandatory presumption, thus, must be held guilty for offence u/sec 138 NI Act.
Court observation:
15. This court is of the observation that since the inception of trial, accused has taken a consistent defence that he did not know the complainant from before whereas it is the case of the com plainant that he shared friendly relations with the accused and in lieu of that he had advanced a loan of Rs.3,25,000/ to the ac cused. During crossexamination, complainant has stated that he knew the accused from the past 67 years and he met him through one person namely Sahib who is a property broker. But the fact that despite being challenged the very acquaintance be tween the parties, complainant did not get any witness especially Sahib examined, this clearly creates doubt over the very friendly Digitally relations between the parties. signed by Jyoti Jyoti Nain Date:
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Further, in his crossexamination, complainant has taken two different stands regarding the source of Rs.3,25,000/ that he had advanced to the accused. During the initial crossexamina tion, he has deposed that he had demanded Rs.3,25,000/ from one Simarpreet Singh Manni in order to be lent to the accused whereas in the latter crossexamination, complainant has stated that Rs.2,00,000/ were given by Simarpreet Singh Manni and Rs.1,25,000/ were given by him to the accused from his personal savings. The fact that the complainant did not examine Simarpreet Singh Manni and took contradictory stand during his crossexamination, creates doubt over the very source of Rs.3,25,000/ that he claims to have lent to the accused. Further, it is indigestible that the complainant who is a property broker would lend a whopping amount of Rs.3,25,000/ after taking debt from a third person that too to be lent to accused who has even denied any acquaintance with him.
Further, in his crossexamination, the complainant has ad mitted that he provided financial aid to the accused without tak ing any security and also admitted that he had not shown the fac tum of advancement of loan in his ITR.
16. At this stage, it would be important to refer to the decision of Hon'ble High Court of Delhi in the case titled as Sheela Sharma Vs Mahender Pal, 2016 SCC OnLine Del 4696, where it was observed that : "31. In cases where the complainant claims to have Digitally advanced a friendly loan in cash and where the trans signed by Jyoti Jyoti Nain Date:
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action of loan is not evidenced by any other documen tary or other reliable evidence, no doubt, the aspect whether the availability of funds in cash with the com plainant/ lender, and its advancement as loan to the accused have been reflected in the income tax returns of the complainant/lender, or not, become relevant. If, the availability of funds, and the loan transaction it self is not so reflected, that factor is taken note of by the court as relevant to hold that the presumption un der section 118 and 139 of N I Act stands rebutted. However, these considerations would not be relevant, when loan transaction itself is otherwise established, either through a documentary evidence - such as, a receipt or a loan agreement, or acknowledgment exe cuted by the accused, or by oral evidence of an inde pendent witness who is found to be credible. In the present case, the loan transaction, though not recorded in an agreement, or a receipt or acknowl edgment executed by the accused, and though not re flected in the income tax returns of the complainant, is evidenced by the oral testimony of CW2, who is an independent witness and highly credible."
17. It is hard to believe that a prudent man like complainant who is a property broker would give a loan to a person without securing its repayment i.e. by executing a document in the nature of promissory note or any other like instrument or by giving the same in the presence of a witness. Apart from the testimony of complainant, there is nothing on record to corroborate the asser tion of the complainant that any loan of Rs.3,25,000/ was given by him to the accused. Complainant has failed to bring sufficient evidence on record to prove that the cheque in question was is Digitally signed by Jyoti Jyoti Nain Date:
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sued by the accused to discharge a legal liability towards him. In the present case, admittedly, there is neither any independent wit ness nor there is any documentary evidence on record to prove the alleged transaction. Also, the fact that complainant admitted not showing the factum of lending money to the accused in his ITR becomes relevant in holding presumption u/sec 118 and 139 NI Act as rebutted.
That during his defence evidence, accused brought copy of letter that he has sent to his Oriental Bank of Commerce along with lost report which are Mark A and Mark B. That during his crossexamination, the authenticity of Mark A and Mark B has not been challenged by the complainant and it has been put to the accused that lost report Mark B was filed by him after a quarrel took place between him and the complainant on 26.03.2019 when the complainant asked the accused for returning the loan amount. Perusal of Mark B shows that the lost report was filed on 27.03.2019 and it talks about loss of : S. No. Property Type Property Description
1. Corporation Bank Eight cheques between no.565551 to 565560
2. Oriental Bank of Commerce Cheque book
3. Debit Card Corporation Bank & Oriental Bank of Commerce The cheque in question belongs to the Oriental Bank of Commerce whose cheque book the accused has mentioned in the lost report. The lost report dates back to 27.03.2019 whereas the cheque in question got dishonored on 22.04.2019, thus, the same supports the defence of the accused that he had lost the cheque Digitally signed by CNR no.DLSW02-045167-2019 Jaspreet Singh vs Sanjay Kumar Page 15 of 18 Jyoti Jyoti Nain Date:
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book from which the cheque in question has been issued even be fore the cheque got presented. Except for the suggestion given to the accused that due to a fight that took place between him and the complainant on 26.03.2019, he filed lost report on 27.03.2019, complainant has not brought any evidence on record which could disprove the veracity of the contents of lost report Mark B. Also, the suggestion has outrightly been rejected by the accused.
18. Ld. Counsel for complainant has argued that the reason for dishonor of the cheque in question is "Funds Insufficient" and not "Payment stopped by drawer", thus, the defence of the accused that he had given stop payment instructions to his bank does not stand ground. To this contention of Ld. Counsel for complainant, it is pertinent to go through the contents of document Mark A first. Perusal of the complaint given by the accused to the Orien tal Bank of Commerce on which the cheque in question is drawn i.e. Mark A shows that accused has told his banker that due to nonavailability of cheque numbers, his request to stop payment qua the cheques could not be entertained, thus, he has requested the bank to close his bank account no.50082011004777, since, police report regarding loss of cheques has already been filed. Thus, the document Mark A, itself explains as to why the reason for dishonor of the cheque in question is "Funds Insufficient" and not "Payment stopped by drawer".
19. In view of the aforesaid discussion, this court is of the opinion that accused has been able to create serious doubts in the Digitally signed by Jyoti Jyoti Nain Date:
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case of the complainant and has been successful in rebutting the presumption raised in favour of complainant u/sec 139 of NI Act and it is now for the complainant to prove his case beyond rea sonable doubt.
20. Ld. Counsel for complainant argued that there are certain inconsistencies and lacunas in the defence taken by the accused, thus, the accused must be held convicted for the offence u/sec 138 NI Act. This court is of the opinion that there are definitely some lacunas and inconsistencies in the defence taken by the ac cused but the fact that guilt of accused shall be proved beyond reasonable doubt cannot be ruled out. As has been held by Hon'ble High Court of Delhi in the case of Kulvinder Singh Vs Kapil Ahmad, 2013 SCC OnLine Del 34 that the basic princi ple in the criminal law is that the guilt of the respondent/accused must be proved beyond reasonable doubt and if there is a slight est doubt about the commission of an offence when the benefit has to accrue to him. Also, at this stage, it is also worth men tioning the established canon of criminal law that in order to pass a conviction in a criminal case, 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 not be travelled on surmises and conjectures, but by cogent evidence. Further, the contention raised by ld. Counsel for complainant that defence of accused is weak and flawed, this court is of the opinion that the case of complainant shall stand on its own legs and it cannot derive strength from the weakness of the defence, nor can the Digitally signed by Jyoti Jyoti Nain Date:
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court on its own make out a case for the complainant and convict the accused. If the accused is not able to prove the defence taken by him, it does not mean that the complainant's version is neces sarily correct.
21. The case of complainant itself suffers from some doubts and the material on record does not suggest that the accused "must be" guilty for the offence. In view of the above discus sions, the present case appears to be a fit case where benefit of doubt can be extended to the accused. Accordingly, this court is of the opinion that complainant has failed to prove his case be yond reasonable doubt once presumption u/sec 139 NI Act has been rebutted by the accused. Hence, complaint stands dismissed and the accused stands acquitted of the offence under section 138 Digitally NI Act. signed by Jyoti Jyoti Nain Date:
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Announced in the open court today (JYOTI NAIN)
i.e. 18th May, 2023 MM(NIAct)-10/SW
Dwarka Courts, New Delhi
Note: This judgment contains 18 pages and each page has been signed by me.CNR no.DLSW02-045167-2019 Jaspreet Singh vs Sanjay Kumar Page 18 of 18