Delhi District Court
Ms. Arpita Chatterjee vs Ms. Aarti on 2 March, 2023
1
IN THE COURT OF DR. SATINDER KUMAR GAUTAM
PRESIDING OFFICER SPECIAL COURT(NI ACT) SOUT WEST,
DWARKA
CC NO. 4763/2017
MS. ARPITA CHATTERJEE VS MS. AARTI
P.S PALAM
s.no
1 Name and address of the Ms. Arpita Chatterjee W/o Sh. SK
complainant Chatterjee R/o Flat no. 54, LIF
Flats, DDA Pocket-13, Phase-I,
Dwarka , New Delhi
2 Name and address of accused Ms.Aarti d/o Shri Ashok Kumar,
R/o C-120,C Block, Paryavaran
Comple,Saiddulajab, New Delhi
3 Offence complained of u/s 138 of NI Act
4 Plea of accused Pleaded ot guilty.
5 Date of institution 24.03.2018
6 Final Order Acquitted.
7 Date of such order 02.03.2023
JUDGMENT
CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 2
1. Vide this judgment, I would deliver judgment of the above captioned case.
2. The factual matrix of the allegations averred in the complaint is that the complainant is running an NGO under the name and style of "Arpan Vision Welfare society' and accused having friendly relation as such approached the complainant on 26.7.2016 for taking financial asistance of Rs.94,000/- for making payment of some installments and promised to repay the same within 3 months. Considering friendship, complainant gave loan of Rs.94,000/-being friend of the complainant. On 26.7.2016, the complainant took loan from Muthoot Fincorp by surrendering her one necklace weighing 18.7 gms, 3 Ring weighing 10 grams .11.4, 1 chain with locket weighing 15.5 grams+15.5, 7 locket (net 3.5 grams+10.9) and she (complainant) received total amount of Rs. 97012/- on the same day. The complainant gave Rs.30,000/- to the accused vide cheque no. 153037 withdrawn onCorporationBank which is operated by the complainant. On repeated demand, accused in order to discharge his liability, issued cheque bearing no. 000004 dated 21.11.2016 of Rs.94,000/- in favour of the complainant. However, on presentation of said cheque by complainant, the same was dishonoured on 27.11.2016. Thereafter, the complainant contacted the accused and informed him about dishonour of cheque but the accused did not pay any heed to the request of complainant thus, the complaiant made a CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 3 police complaint on 19.12.2016 vide DD No 39-B at P S Palam Village against the accused. On this, the complainant again presented the said cheque on the request of accused, but again it was dishonoured vide returning memo dated 13.2.2017.
3. The complainant again contacted the accused to repay the loan amount but the accused kept on delay for making payment and thus, the complainant sent a legal notice dated 14.02.2017 through speed post. Despite service of the legal notice, the accused failed to make payment of the cheque in question within 15 days. Hence, the present case.
4. Complainant tendered Authorized representative of complainant Arpita Chhaterjee in pre-summoning evidence as CW2 on 28.06.2017 vide affidavit of evidence Ex.CW2/A along with documents such as copy of certificate of Registration Ex.CW2/1 i.e. copy of receipt issued by Muthoot Ex. CW2/2, copy of police complaint as Ex. CW2/3, original cheque Ex.CW2/4, return memo Ex.CW2/5, copy of legal demand notice Ex.CW2/6, reply of legal notice Ex CW2/8 and copy of voter ID as Ex. CW2/9 and testimony of CW1 Shrikant sharma cash transaction Officer of Central Bank of India DDA, Mangla Puri Branch, New Delhi.
SUMMONING AND FRAMING OF NOTICE.
CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 4
5. Vide order dated 28.06.2017, accused was summoned considering pre-summoning evidence of complainant as CW2 and CW1 Sh. Shrikant Sharma, bank official of Central Bank of India who had filed photo copy of passbook of complainant alongwith cheque return statement of the complainant stating that cheque bearing no. 000004 for the amount of Rs. 94,000/- was dishonoured for the reasons "Drawer Signature Differs" and there after closed her pre-summoning evidence after dropping witness no.2, 3 and 4 as per list of witnessesd. Thereafter, on 02.07.2018 notice u/s 251 cr.p.c was framed to which he pleaded not guilty and claimed trial. The accused stated in his defence as under:
".... The cheque in question does not bear my signature. However, the cheque in question was not handed over to the complainant. I know the complainant as I was introduced to the complainant by my CA ( whose office is at Hauz Khas Delhi and I do not rememer his name )The complainant is running a trust by he name of Arpan Vision Welfare Society and I was told to invest money in the said trust and in lieu of which, I was to be made signatory of Arpan Vision Welfare Society and I would be made a member in the said society. The sum of Rs.94,000/- ( in figures) is in my handwriting. However, the name of payee, date and sum in words, have not been filled by me. I CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 5 have received the legal demand notice and I had duly replied the same through his counsel".
6. Thereafter, The concerned court keeping in mind the legislative intent, allowed application u/s 145 (2) NI Act of the accused to cross examine the complainant vide order dated 20.11.2018 and matter was listed for complainant evidence. On 19.8.2018 complainant step into the witness box as CW2 and adopted her pre-summoning evidence and documents relied in her examination-in-chief.
During cross examination, the complainant testified she is running NGO since 2009 having five executive members including herself and three other persons and she is filing ITR on behalf of NGO and accused met her through CA Sh. Prem Lamba for NGO since then she is filing ITR for the said NGO but she did not file ITR from 2013-2016. All contributions were made by members of the NGO in cash and not from any outsider. She took donations from general public for her NGO and issued receipt for the same to the general public for such donation. CW2 further testified that she do not know any Maninder Kaur. From 2009 to 2016, the register office of her NGO was placed in Raj Nagar, Part-II, Palam, New Delhi. CW2 denied that rent agreement took place in respect of plot no. RZ- B623,Khasra No. 117/2/3, Ground floor, Gali no. 35, Mahavir Enclalve,P-11 Dwarka, New Delhi between herself and Sh. Sangat CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 6 Singh. The rent agreement was entered into for office premises between her and Ms. Maninder Kaur at the instance of Ms. Aarti ( Accused) who had offered to procue a Govt. Project for the NGO run by her. The accused got the said agreement upon which she signed and she (CW2) did not refer to any specific Govt. Project. She took loan of Rs.97,000/- from Muthoot Finance and gave it to accused in cash and out of the said amount of Rs.97000/- accussed returned her Rs.3,000/- then & there. She do not know if she had mentioned about Rs.3,000/-received in cash from the accused in her complaint or not. On being confrontation with document Ex. CW2/3 she admitted that in her complaint, she has mentioned amount of Rs.97000/- in stead of Rs. 94,000/-.She had taken laon of Rs.97000/- from Muthoot Finance and forget Rs.3000/- has been returned to her. She denied about having knowledge of making complaint by accusued in Mehrauli and Dabri vide DD no. 46 B and 31 B respectively or that she made this complaint after coming to know that accused filed complaint against her( complainant). She did not file any document of procuring any loan from Muthoot Finance as only gold was required for advancing loan and no document for disbursement of loan.
7. She (CW2) further testfied that she do not remember if the cheque dated 2.8.2016 given to the accused by her got dishonoured nor she remember date of the cheque given by her to the accussed. She also CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 7 do not remember how many cheques were given by her to the accused. He denied that she had given three cheques and out of which one cheque was for the sake of verificiation of NGO and second cheque got dishonoured and third cheque was encashed by the accused. CW2 Arpita Chhaterjee denied that security amount of Rs.28,000/- was given by her by way of two cheque of Rs. 14,000/- each to Ms. Maninder Kaur and amount of Rs.28,000/- was received by her in cash from the accused. CW2 further denied that she (CW2) was liable to pay Rs. 2,90,000/- to Ms. Aarti so, she issued two cheque of Rs. 1,45,000/- each in favour of accused. Further, CW2 admitted that the cheque in question was presented by her two times for encashment and the cheque was completely filled by the accused . However, she denied that accused did not take any loan from her or she had forged signature of the accused on the cheque in question or that she has misued the cheque in question though, the accused has no liability to pay her anything. Thereafter, complainant closed her evidence. Thereafter, matter was listed statement of accused and filing application u/s 315 cr.p.c if any.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE.
8. On 31.10.2019, statement u/s 313 cr.p.c of the accused was recorded where, the accused denied that she had taken loan of Rs.94,000/- and further stated that she did not issue the cheque in question in favour CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 8 of the complainant. She entered into an agreement with the complainant regarding running of NGO. The complainant used to NGO of Arpan Vision Welfare Society which used to work onvarious issues. She was approached by one CA Prem Lamba who infomed accused that the complainant needs fund to run the said NGO and complainant wants to sell the said NGO for Rs.50,000/-. Thereafter, it was decided that accused would become a partner with the complainant in the said NGO upon the condition that he would be made authorized signatory and given the post of secretary in the said NGO. Thus she had given fund of Rs.2,90,000/- in cash and Rs.5000/- as a member fees alongwith a signed cancelled cheque, self attested copies of pan card, Adhar card and voter ID card. She was also paying rent of Rs. 14000/- in cash to the complainant for the NGO situated at Sachdeva Motors, Dwarka, and it was paid through NGO account maintained with Corporation Bank, Palam, New Delhi, as the account statement of the NGO expenditures needed to be maintained.
Further, Cw2 stated that in year 2016 she was giving training to the members of the NGO and in that training she had used the cheque in question only to explain cheque related transaction and the amount column in the cheque both in words and figures was filled by her. After training , she kept the said cheque in her bag and on receipt of legal notice, she got to know that the said cheque used in the training CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 9 was stolen by the complainant from her bag and the same was misused by the complainant by filing the detail of the present complaint. She has no liability towards the complainant. It is also stated that she had received legal notice and replied the same. Further, she stated that neither she approached the complainant for taking loan, nor issued cheque towards any liability and she did not signed the cheque though she filled the amount column in words and figures. Accused opted to lead defence evidence. Thus, matter was listed for defence evidence.
9. Thereafter, in order to prove her plea, the accused examined as many as two witnesses in defence. Accused step into the witness box as DW1 and deposed that from her CA Sh. Prem Lamba she took advice to open her own company and then he advised her about the complainant who wants to sell her NGO for Rs.50,000/- after meeting to the complainant, it was decided she would be a partner with the complainant and would be a authorized signatory in the said NGO and further reiterated her version as stated in her statement u/s 313 cr.p.c that she gave Rs. 2,90,000/- in cash and Rs.5000/- as member alongwith self attested documents such as PAN Card, Aadhar card , a cancelled cheque of SBI as well as 5 passport size photos and in lieu of Rs.2,90,000/- complainant issued two cheque of Rs.1,45,000/- in her favour which could be presented by her if the complainant would fail to make her a partner in the said CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 10 NGO. A batch of student from Rajasthan had come for taking training regarding banking business which included procedure for selling credit cards and as part of said training, she had carried the subject cheque in order to teach the trainess about the filling of cheque. She kept the said cheque after taining in her bag and came to know about its lost when complainant filed the present case by misusing the said cheque. She further testified that after training, she worked with the complainant 3-4 months threafter due to dispute with regard to not becoming her member and authorized signatory in the said NGO so they separated. Thereafter, she filed police complaint in P S Mehrauli and Dabri .
During cross-examination, DW1 states that she used to give advice in the NGO regarding accounts and maintenance. She know the complainant since 2015 and office of NGO took on rent of Rs. 14,000/-p.m from Mahender Kaur in July 2016 and the complainant did not contact her after dishonour of the cheque in question. She brought on record reply of the legal notice as Ex. CW2/8 and denied that complainant filed complaint against her vide Ex CW2/3 dated 19.12.2016 is pre-dated from the complaint filed by her. She filed the complaint against the complainant on 23.11.2016 and 25.11.2016 and denied the suggestion of the complainant.
CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 11
10. DW2 Sh, Ranjan Manager of Union Bank of India who brought account statement vide account no. 045200101022405 of the complainantNGO Arpan Vision Welfare Society for the year 2016 and 2017 alongwith account opening form and related documents. Thereafter defence evidence was closed and matter was listed for final arguments.
11. Final arguments were heard, perused the material on record and judgment cited.
POINTS OF ARGUMENT OF COMPLAINANT
12. During arguments, the counsel for complainant has contended that the accused has taken consistent plea that the cheque in question was not handed over to the complainant nor it bears her signature though amount in figure and words are under her handwriting. The cheque in question was lost from her bag which she had kept after giving training to the student of the NGO and came to know only after filing the present complaint. The accused also took plea that she had also lodged police complaint after receiving the legal notice. The complaint lodged by the accused after knowing the fact of filing the present case, is an after thought and only to get rid off from her legal enforceable debt/ liability against the complainant. The accused has also not brought on record the source of payment made in cash CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 12 Rs.2,90,000/-. Accused neither produce any cogent evidence or examined any independent witness to show the source of money invested by her in the NGO nor deposed that in whose presence she had handedover the said money to the complainant. However, complainant brought on record receipt of Muthoot finance with photo copy of gold article to show the quantity of gold and amount released to the complainant. The complainant show the source of money advanced to the accused. Without any cogent evidence, the defence taken by accused can not be believed. She herself stated that she used to give rent of Rs.14,000/-p.m in cash for the property from which NGO was being run. The accused did not examine any other person of the NGO to corroborate her version that she infact used to pay the rent in cash or that she gave training to the student on the aspect of cheque/ banking transaction. The said plea is also not supported with any occular evidence.
13. It is further submitted that the complainant has proves its case against the accused as , the accused admitted that the said cheque belongs to her account, she received the legal notice and she did not made any complaint to the bank regarding lost of cheque. It is prayed that the accused may be convicted as per law.
14. Per contra, the ld. Counsel for accused submitted that she did not issue any cheque in favour of the complainant nor the accused CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 13 signed the same and as per reply of the accused to the notice u/s 251 cr.p.c and legal notice, the accused specifically denied that the said cheque was not given against any liability rather, it was the complainant who took money from the accused. The complainant has concealed the material facts that the accused was working as partner of the NGO and the complainant filed date on the cheque in question and signed the same of her own or from someone only to file false case against the accused nor the complainant produce any document or oral evidence to prove that in whose presence complainant had advanced the loan amount to the accused.
15. It is further contended that there are lots of contradictions in cross esxamiantion of complainant which goes in favour of the accused. On perusal of cheque in question and other documents with the admitted handwriting /signataure of the accused and of the complainant shows that signature and date are not in handwriting of accused. The complainant has also not filed any document to show his financial capacity nor examined any witness of her bank to corroborate that pledging amount was credited in her account or it was received by her through cheque nor examined any other witness of NGO having knowledge that she had advanced loan amount to the accused thus, the averments of complainant remained uncorroborated. The accused from the very begining denying her signature on the cheque in question and the fact that she CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 14 had given said cheque to the complainant. As such, the ingredient of the offence u/s 138 NI Act is missing according to which cheque in question ought to have been issued against legally enforceable debt and in the instant case, accused vehemently denied from the beginning that she had not issued any such signed cheuqe in favour of the complainant and she is not having any liability. The complainant did not approach the court with clean hands and suppressed the facts.
16. Ld. Counsel for the accused relied upon the judgment of Hon'ble supre Court titled as Prestie Lights Ltd. Vs. State Bank of India (2007) 8SCC 449. held that:
" If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it.."
17. It is further contended that the accused has denied her signature on the impugned cheque and for the same reason, the cheque was dishonoured with remarks" Drawer signature differs"
and it also shows that the signture on the cheque is not in the CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 15 handwriting of accused and the presumption under Section 139 Ni Act does not arise in favour of the complainant.
18. Hon'ble suprem Court titled as K Bhaskaran V Sankaran Vaidhyan Balan , (1999) 7SCC 510 held that:
" Once the signatures on the cheque is admitted to be of the accused, then the presumption envisaged in Section 118 of the Act cat legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears."
19. It is further contended that accused filed complaint Dated 23.11.2016 and 25.11.206 against the complanant vide mark 1 (DD no.31 B) and mark 2 (DD No. 46 B) and the present complaint of the complainant is a counter blast and it also corroborate further complaints of accused wherein, it is mentioned that complainant extended threat to her to lodge a false case against her. Thus, the accused corroborate her plea that the complainant lodged a false complaint by misusing her cheque. Even otherwise, on the one hand, the complainant mentioned in her complaint that accused had received Rs.30,000/- vide cheque no. 153037 of corporation bank, which is operated by the complainant and having business relation and this fact was not disclosed by the complainant ebven the accused working in her NGO. Thus, the complainant concealed the material fact which not only creates doubt in the mind of the court but also CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 16 shows that the complainant made a false story of loan by misusing cheque of accused after stolen the same.
20. It is further submittied by ld. Counsel for accused that complaint case filed by accused against the complainant vide CC No. 8940/19, it is complainant who has to prove the ingredients of the offence u/s 138 NI Act. Section 103 of the Indian Evidence Act says that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. It is a settled proposition of law that in case of cash transactions, showing that complainant did not have adequate financial capacity to lend money to the accused amounts to a probable defence. Ld. Counsel for accused relied on judgment titled as Basalingappa Vs Mudibasappa,( 2019) 5 SCC 418, and APS Forex Service Private Limited Vs. Shakti Inernational Fashion Linkers AIR 2020 SC- 945 wherein it was held that:
"They 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 CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 17 capacityand at that stage, the complainant is required to lead the evidence to prove his financial capacity, more particularly when it is case of giving loan by cash and thereafter issuance of a cheque"
21. Ld. Counsel for the accused relied case of Sunitha Vs.Sheela Antony, 2020 SCC Online Ker.1750 and Vijay Vs. Laxman and Anr. (2013)3 SCC 86 wherein it is 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"
22. In the present case, it is further argued that the accused has denied his signatures on the cheque in question during the entire trial and moreover, the cheque in question got dishonoured for the reason "
drawer signature differs". Thus , the presumption u/s 118 and u/s 139 NI Act did not lie against the accused and the complainant was supposed to prove his case beyond reasonable doubt which he has miserably failed to prove. The complainant has also failed to prove that there was any legally enforceable debt up on the accused to the tune of cheque amount in question as on date of presentation of cheque. The complainant did not disclose the fact that Rs.30,000/- was received by the accused through cheque but the complainant CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 18 hide that one month earlier the said amount of cheque was bounced and the complainant also supressed the fact of having whole transaction between the accused and the complainant with regard to the corporoation bank and SBI bank. Ld. Counsel for accused in view of aforesaid judgments & discussion prayed for acquittal of the accused.
23. Having consider rival submissions and gone through the material on record and the judgment as relied upon. To bring home a liability under section 138 of NI Act, 1881, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, viz.
1. A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability;
2. The cheque has been presented to the bank within a period of three months from the date mentioned on the cheque or within the period of its validity, whichever is earlier;
3. The cheque is returned by the bank unpaid either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
4. The payee or the holder in due course of the cheque makes a demand for the payment of teh said maount of money CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 19 by giving a notice in writing to the drawer of the cheque within 40 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
5. The drawer of such cheque fails to make the payment to the payee or the holder in due course of the cheque within 15 days of the receipt of the notice.
24. In this regard, reliance can be placed on Hiten P. Dala v Bratindranath Banerjee (2001) 6 SCC 16 wherein it was held as under:
"22. Because both Sections 138 and 139 require that the court 'shall presume' the liability of the drawer of the cheques for the amounts for which the cheques are drawn..., it is obligatory on the court to raise this presumption in every case where the factual basis for the raising of the presumption has been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused(...). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court may presume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption is obliged to prove the case against the accsued beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable probability of the nonexistence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exists, the discretion is left with the court to draw the statutory conclusion, but his does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the court either CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 20 believes it to exist, or considers its existence so probable that prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defnce to exist or consider its existence to be reasobably probable, the standard of reasonability being that of the prudent man."
25. Reliance can be placed on the judgment prononced in John K Abrahma vs Simon C Abraham & Anr SLP (CRL.) No. 9505 of 2011, "It has to be stated that in order to draw the presumption under section 118 read along with 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had rquired funds for having advanced the money to the accused: that the issance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant"
26. Also, in K. Subramani vs K Damodar Naidu 2015 Civil Court Cases 001 (S.C), Hon'ble Supreme Court of India found the requirement of the complainant to establish his financial capacity to lend money relevant in cases u/s 138 of NI Act.
27. Ld. Counsel for the accused contended that the complainant has suppressed the material facts with regard to business transaction of the bank of accused and bank of NGO in the name of complainant. Moreover, the complaianant has also suppressed the fact that the cheque in question was presented earlier for encashment first on 27.11.2016 which was also received back with remarks " signature CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 21 differes". The said cheque return memo was not filed by the complainant for the reason best known to her. The complainant also did not sent any demand notice on the first time presentation of her cheque when the cheque was returned back on 27.11.2016 nor contacted the accused with ulterior motive and thus, the complainant failed to prove the contention raised in his complaint as well as prove the documents in accorodnace with law. Even perusal of receipt of Muthoot Finance on which complainant relied upon, shows that Rs.97012.00 were received by the complainant but the alleged advanced of Rs.94,000/- only to the accused as per the averments. The complainant also did not utter even a single word that in whose presence, he had given loan to the accused as such, supression of transaction relation between bank of accused and bank of complainant/ NGO and status of accused in the said NGO to corroborate her version, the complainant has failed to prove in this account.
28. Unlike the prosecution, the accused has to prove his defence on probabilities by leading cogent evidence. The onus on the accused is not as stringent and rigorous as is on the prosecution even in case of a trial which proceeds on reverse onus of proof theory. The said view is endorsed by the Hon'ble Apex court in a plethora of decisions, one being, Kali Ram v. State of Himachal Pradesh 91973) 2 SCC 808 wherein it been held that:
CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 22 " ... The onus even in such cases upon the accused is nto as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal"
29. The accused has taken a consistent stand that she did not avail any loan from the complainant and did not issue any cheque towards any enforceable legal liability/ debt and therefore, the onus of proof which is only preponderence of probability upon the accused is discharged.
30. The contention of accused that in absence of any cogent evidence of advacement of loan, the trial court has to acquit the accused. Ld. Counsel for accused on this point relied on judgment of Hon'ble supreme court titled as Sudha Renukaiah and others vs State of UP, 2017 (2) RCR ( crl) 693 wherein it is held that "where in a case, two views are possible , the one which favours the accused, has to be addopted by the Court.
31. In a landmark judgment passed on 09.04.2019 by a Division Bench of the Hon'ble Supreme Cour in Basalingappa vs Mudibasapp Criminal Appeal No. 636 of 2019 it was held that when the accused proves a probable defence, the reverse onus of CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 23 proof shifts the burden on the complainant who is bound to explain his financial capacity and the transaction of loan advanced.
32. Further, The complainant in order to prove his financial capicity to provide advance to the accused, the complainant has filed copy of loan taken by her from Muthoot Finance which means, the complainant was not in good financial capacity to advance loan by herself so, the plea taken by accused that she had invested the money for getting NGO registered in her name is true & correct and the accused also relied on judgment titled as Basalingappa Vs. Mudibasappa, ( Supra) wherein it was held that:
" Sec. 20 and Sec. 139 of the Act is an example of a reverse onus and the test of propertionality should guide the construction and interpretation of reverse onus clauses on the defendant-accused and the defendant accused cannot be expected to discharge an unduly high standard of proof."
33. On section118 (a) and 139, the Hon'ble High court summarise the principles enumerated in the following manner:
(i) One 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.
CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 24
(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.
(v) It is not necessary for the accused to come in the witness box to support his defence.
34. Accused can rely, on the material submitted by the complainant, in order to raise such a defence. In fact, it is conceivable that in some cases, the accused may not need to adduce own evidence. Rebuttal can be done by cross examination of complainant and by showing contradictions and inconsistencies in the case of the complainant itself. Once rebuttal evidence is adduced and accepted by the Court, the evidential burden shifts back to the CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 25 complainant and thereafter, the presumptions under Section 118 and 139 NI Act would not come to the aid of the complainant.
35. In the instant case, stand taken by the accused in her defence that complaiant wanted to sell the NGO for Rs. 50,000/- as she was in need of money hence, the accused agreed to purchase the NGO and the accused used to impart training in the said NGO and during training, she had carried the subject cheque in order to teach the trainees about the filling of cheques and during said training accused used the cheque in question which the complainant taken out from the accused and misused the same.
36. Ld. Counsel for the accused relied upon the judgment of Hon'ble suprem Court titled as K Bhaskaran V Sankaran Vaidhyan Balan , (1999) 7SCC 510 held that:
" Once the signatures on the cheque is admitted to be of the accused, then the presumption envisaged in Section 118 of the Act cat legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears."
37. The onus thus shifts on the complainant and the rebuttable presumption of law under section 139 NI Act thus vanishes. The complainant has now to prove that she had advanced loan to the CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 26 accused and the cheque in question was issued by the accused in discharge of legally enforceable debt.
38. It was held by Hon'ble Supreme court in Basalingappa Vs. Mudibasappa, (2019) 5 SCC 418 that :
" During his cross examination, when financial capacity to payRs 6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant." The evidence on record, thus is a probable defence on behalf of CC no.8940/2019 the accused, which shifted the burden on the complainant to prove his financial capacity and other facts.
39. However mere assertion of the complainant does not come as a good defense, unless the complainant leads cogent evidence to prove the said assertion. Section 103 of the Indian Evidence Act provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by ay special law that the proof of that fact shall lie on any particular person.Section 103 of the Indian Evidence Act amplifies the general rule of Sectiion 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue.
40. In case Hon'ble Apex Court in the case of Kumar Exports Vs. Sharma Carpets, reported in ( 2009)2 SCC 513 has held that the CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 27 accused in a trial under Section 138 of NI Act has two 18 CC No. 26710-2016 options. He can either show that consideration and debt did not exist or that under the particular circumstance 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.
41. Ld. Counsel relied upon Power of the Magistrate for sending a document for expert's opinion in respect of the dishonoured cheque u/s 138 of NI act and stated that and denial of the said opportunity would lead to an unfair trial u/s 45 of Indian Evidence Act and relied on casse AIR 20212 SCW 5492 between Ajay Kumar Parmar Vs. State of Rajasthan wherein it is held that:
"The opiinion of a handwriting expert is liable to error like that of any other witness, and yet, it cannot be brused aside as useless. There is no legal bar to prevent the Court from comparing signatures or handwriting, by using its own eyes to compare the disputed writing with the admitted writing and then from applying its own observation to prove the said handwritings to be the same or different, as the case may be, but in doing so, the court cannot itself become an expert in this regard and must refrain from playing the role of an expert, for the simple reason that the opinion of the court may also not be conclusive. Therefore, when the court takes such a task upon itself, and CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 28 findings are recorded solely on the basis of comparison of signatures or handwritings, the court must keep in mind the risk involved, as the opinion formed by the court may not be conclusive and is susceptible to error, especially when the exercise is conducted by one, not conversant with the subject. The court , therefeore, as a matter of prudence and caution should hesitate or be slow to base its findings solely upon the comparison made by it. However, where there is an opinin whether of an expert, or of any witness, the court may then apply its own observatiion by comparing the signatures or handwritings for providing a decisive weight or influence to its decision."
42. In the instant case, there is no such averment made nor anyapplication filed by the complainant in order to prove the signture on cheque in question. It brought on record that the complainant has not been able to prove that the cheque in question was issued by the accused for discharge of legally enforceable liability/ debt and hence the foremost ingredients of offence punishable u/s 138 of NI Act is not established in accordance with law beyond reasonable doubt and as the complainant has failed to lead clear, cogent and credible evidence to prove that the cheque in question was issued in discharge of any legally enforceable debt or liability. The accused has rebutted the presumption arising in favour of complainant u/s 118 and 138 of Negotiable Instrument Act. On the other hand, the judgment relied CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 29 on by counsel of complainant do not helpful the case of the complainant.
43. Keeping in view the aforesaid discussion and the material on record as well as judgment as cited by the ld. Counsel for the parties, it is brought on record that cheque in question does not reflect towards the liability of the accused for extension of the loan. It also revealed that it was allged by the accused that provision u/s 138 NI Act is not applicable to the alleged cheque as it was issued by the time barred debt. The cheque was bounced twice but there is no whisper of the first time bouncing of cheque nor any explaination has been given by the complainant to this effect nor any step was taken for issuing legal notice etc against the accuused. The cheque in question of HDFC bank and the whole transaction between both the parties with regard to the Corporation bank and State Bank of India . The amount mentioned of Rs. 30,000/- was encashed by the accused but the complainant hide that one month earlier the said amount of cheque was bounced and that amount was pertainings to the NGO and that the accused has made a complaint for the first time with regard to the implication. The cheque in question dishonoured due to the signature differ. The burden is shifted upon the complainant to prove that the said cheque bears signature of the accused and has to take appropriate step in this rerard.
CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti 30
44. In view of the aforementioned discussion and judgment cited, the court came to the conclusion that complainant has not been able to prove its case u/s 138 of NI Act beyond shadow of any reasonable doubt against the accused. Accordingly, accused namely Ms. Aarti d/o Sh. Ashok Kumar stand acquitted for offence punishable u/s 138 NI Act qua the cheque in question.
45. This judgment contains 30 pages in number and every page of this judgment is signed by me with dated.
Announced in the open Court On 2nd March, 2023.
( Dr. Satinder Kumar Gautam) PO Special Court (NI Act) S-W Dwarka 02.03.2023 CC NO. 4763/2017 Arpita Chhatarjee Vs Aarti