Delhi District Court
Raminder Kaur Anand vs . Sunny Kaushik on 17 May, 2023
IN THE COURT OF MS. GARIMA JINDAL, M.M. NI ACT
DIGITAL COURT NO.3(NORTHWEST DISTRICT)
ROHINI COURTS DELHI
CC No. 1858/2021
RAMINDER KAUR ANAND Vs. SUNNY KAUSHIK
P.S. Netaji Subhash Place
In the matter of:
Smt. Raminder Kaur Anand
W/o Sh. Surjeet Singh Anand
House No. 93, Kohat Enclave,
Pitam Pura, Delhi110034.
..... Complainant
Versus
Sunny Kaushik
S/o Sh. Raj Rishi Kaushik,
R/o House No. 101, Sector25,
Rohini, Delhi.
Office Address:
C3, Sector67, Noida,
UP201307.
.... Accused
Date of institution of complaint: 28.11.2020
Offence complained of : U/s 138 NI Act
Plea of accused: Not Guilty
Date of decision: 17.05.2023
Decision: Acquitted
JUDGMENT:
1. The present complaint arises out of the following set of facts. The complainant and accused knew each other for a long time and had good family relations and used to conduct business transaction with each other for past many CC NI ACT 1858/2021 Digitally signed by GARIMA Raminder Kaur Anand Vs. Sunny Kaushik GARIMA 1 Out of 8 Date: 2023.05.17 15:49:40 +05'30' years. In the month of March 2020, the accused approached the complainant for a friendly loan of Rs. 1,00,000/ on the pretext of deplorable financial condition and promised to return the same within three months and because of good relations with the accused, complainant advanced Rs. 1,00,000/ to the accused as a friendly loan and in this regard, promissory note pertaining to friendly loan was executed between the complainant and accused. The accused issued a cheque bearing no. 927295 dated 10.09.2020 for a sum of Rs. 1,00,000/ in favour of the complainant to discharge his liability and assured the complainant that the said cheque would be cleared on presentation. On assurance given by the accused, the complainant presented the above said cheque with her banker i.e. Bank of Maharashtra Branch Kohat Enclave, Delhi for its encashment but the same was returned back unpaid with remark "Funds Insufficient" vide returning memo dated 14.09.2020. Thereafter, complainant issued legal notice through the counsel which was duly served upon the accused on 12.10.2021. However, despite the receipt of legal notice, the accused failed to pay the cheque amount within the statutory period of 15 days and the present complaint was filed.
2. The court took cognizance of offence U/s 138 NI Act on 10.12.2020 and summons were issued to the accused. The accused entered appearance on 10.02.2021 and was admitted to bail.
3. Notice explaining the accusation to the accused U/s 138 NI Act was framed upon the accused on 24.02.2021 and his plea of defence was also recorded. The accused pleaded not guilty and claimed trial. Admission/ denial of documents of accused was recorded on 23.08.2021.
4. After the framing of notice, the accused filed an application U/s 145(2) NI Act and he was granted leave to cross examine the complainant on 08.09.2021 and the matter was listed for CE.
5. On 05.10.2022, the complainant was examined as CW1 wherein she relied upon her presummoning evidence affidavit Ex.CW1/A and she relied upon the following CC NI ACT 1858/2021 Raminder Kaur Anand Vs. Sunny Kaushik Digitally signed by 2 Out of 8 GARIMA GARIMA Date: 2023.05.17 15:49:49 +05'30' documents:
1. Copy of ID Proof of complainant exhibited as Ex.CW1/1.
2. Promissory Note exhibited as Ex.CW1/2.
3. Original cheque and returning memo exhibited as Ex.CW1/3 (colly.)
4. Copy of Legal notice alongwith postal receipts exhibited as Ex.CW1/4 (colly.)
5. Tracking Report of legal notice exhibited as Ex.CW1/5.
CW1 i.e. the complainant was partly cross examined by Ld. Counsel for accused on the same day. She was further cross examined and discharged on 06.09.2022. Thereafter, it was submitted by Ld. counsel for the complainant that he wishes to conclude CE and the matter was listed for SA.
6. Statement of accused U/s 313Cr.P.C was recorded separately on 10.10.2022, putting entire incriminating evidence against him. During examination of accused U/s 281 R/w 313Cr.P.C, the accused took the defence that the cheque in question had been given as a security cheque to the husband of complainant from whom he had taken a loan in the year 20112012. He submitted that the loan had been repaid and that he had no communication with the complainant for the past 78 years. He submitted that he wishes to lead defence evidence and he sought to examine handwriting expert to disprove his signatures on documents Ex.CW1/1. The matter was listed for DE.
7. The handwriting expert Sh. Deepak Jain tendered his report in evidence on 28.03.2023 whereby he concluded that the signatures on disputed documents had not been made by the accused. He was cross examined by Ld. counsel for complainant and discharged as a witness on the same day.
8. The matter was listed for final arguments on 08.05.2023. Final arguments were heard on the above mentioned date and the matter was kept for pronouncement of judgment.
9. I have heard Ld. Counsel for the parties, perused the CC NI ACT 1858/2021 3 Out of 8 Raminder Kaur Anand Vs. Sunny Kaushik GARIMA Digitally signed by GARIMA Date: 2023.05.17 15:49:58 +05'30' case record and have gone through the relevant provisions of law.
10. At the very outset, it is pertinent to lay down the ingredients of the offence under Section 138 NI Act. The following are the components of the offence punishable under Section 138 of Negotiable Instruments Act:
a) Drawing of the cheque by a person on an account maintained by him with a banker, for payment to another person out of that account for discharge in whole/part any debt or liability;
b) Presentation of the cheque by the payee or the holder in due course to the bank;
c) Returning the cheque unpaid by the drawee bank for want of sufficient funds to the credit of drawer or any arrangement with the banker to pay the sum covered by the cheque;
d) Giving notice in writing to the drawer of the cheque within 30 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount;
and
e) Failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice.
11. Ld. Counsel for the complainant has submitted that there exists a legally enforceable liability in favour of the complainant due from the accused on the basis of documents Ex.CW1/1 to Ex.CW1/5. He further submitted that signatures on the cheque in question have not been disputed by the accused. He discredited the testimony of handwriting expert on the basis of answers given to questions asked during cross examination. He further CC NI ACT 1858/2021 Raminder Kaur Anand Vs. Sunny Kaushik 4 Out of 8 Digitally signed by GARIMA GARIMA Date: 2023.05.17 15:50:07 +05'30' submitted that the accused did not step in as defence witness to avoid being cross examined. It is submitted by Ld. Counsel for complainant that offence U/s 138 NI Act is made out against the accused and he be convicted for the same.
DEFENCE OF ACCUSED
12. The Accused has taken the defence that the cheque in question had been given as a security cheque to the husband of complainant from whom he had taken a loan in the year 20112012. He submitted that the loan had been repaid and that he had no communication with the complainant for the past 78 years. The signatures on the promissory note and receipt have been disputed by the accused on the basis of report of handwriting expert. Therefore, Ld. counsel for accused submitted that that the accused be acquitted of the offence U/s 138 NI Act.
13. When any cheque or negotiable instrument is issued and the issuance of cheque is not disputed, Section 139 of NI Act R/w 118 of NI Act creates the rebuttable presumption in favour of the complainant. According to Section 118 NI Act, until the contrary is proved, it shall be presumed interalia that the negotiable instrument was made, drawn, accepted or endorsed for consideration. It is also presumed that consideration is present in every negotiable instrument until the contrary is proved. Moreover, the presumption U/s 139 NI Act also comes into play and it shall be presumed that the holder of the cheque received the cheque for the discharge, in whole or in part, of any debt or other liability.
14. Reliance is also warranted upon the judgment of Hon'ble Supreme Court in Basalingappa Vs. Mudibasappa (2019) 5 SCC 418 wherein the law relating to presumptions under the NI Act has been elaborated in detail. It has been held that the cardinal principal of criminal jurisprudence is that the burden of proof is upon the prosecution to prove the guilt of the accused beyond reasonable doubt. Under Section 139 NI Act, however, the the burden of proof has been reversed and it is upon the accused to prove his innocence once the presumption is CC NI ACT 1858/2021 Raminder Kaur Anand Vs. Sunny Kaushik Digitally signed by 5 Out of 8 GARIMA GARIMA Date: 2023.05.17 15:50:15 +05'30' raised. This burden of proof, however, is not of the same degree as that on the prosecution/ complainant and it is sufficient if the accused raises a doubt in the case of the prosecution. It is not necessary for the accused to prove his innocence beyond reasonable doubt and the burden of proof is similar to that in a civil dispute.
15. It is the case of the accused that the cheque in question was not issued by him in respect of a loan taken from the husband of complainant in the year 201112 and that he had no dealing with the complainant in the past 78 years. To prove the same, Ld. counsel for accused has brought to the attention of court, certain contradictions in the case of complainant.
It is submitted by Ld. counsel for accused that the name of father of accused as per the complaint is Deva Ram Chhabra which is incorrect. The court finds merits in the submissions of Ld. counsel of accused that it seems inconceivable that the complainant does not know the name of father of accused despite allegedly having friendly and business relations with the accused. In response to the same, Ld. counsel for complainant submitted that the name of father of accused was mentioned as told by the accused himself and that the accused deliberately told incorrect name. It does not seem believable considering that as per the complainant, she had friendly relations with the accused for more than a decade and she had multiple opportunities to come to know about the falsity.
The accused has disputed his signatures on the promissory note and receipt and to prove that the documents have not been signed by him, he examined handwriting expert. The conclusion of handwriting expert as per his report Ex.DW1/1 was that the above mentioned documents have not been signed by the accused. However, the report of handwriting expert cannot be considered to be conclusive because the signatures of accused are different in documents signed by him in the court itself, i.e. notice framed U/s 251Cr.P.C., bail bonds and his statement U/s 313Cr.P.C. Ld. Handwriting Expert also conceded that natural variations are bound to come in the signatures of any individual and that a person can deliberately conceal CC NI ACT 1858/2021 Raminder Kaur Anand Vs. Sunny Kaushik Digitally signed by 6 Out of 8 GARIMA GARIMA Date: 2023.05.17 15:50:25 +05'30' his signature by creating a variation. Therefore, no conclusion could be reached on this aspect.
The complainant has not mentioned the loan in question in her ITR of the relevant year. During the cross examination by Ld. counsel for accused, the complainant stated that she was in contact with the accused and that she had informed the accused about dishonour of the cheque. However, no documentary evidence was produced by her to prove the same. It is pertinent to note that in case of telephonic conversation, it is quite easy to produce the record of communication between the parties. However, no attempt was made by the complainant to produce the same. This conduct lends credence to the suggestion of Ld. counsel for accused that the complainant in fact had no communication with the accused during the relevant period.
It was argued by Ld. counsel for complainant that the accused did not step in as defence witness to avoid being cross examined. However, it is a settled law that merely because the accused does not step in as a witness, no adverse inference could be drawn against him.
16. The above mentioned contradictions or inconsistencies in the case of the complainant are sufficient to raise a doubt in a case, even though not sufficient to prove the defence of the accused.
17. Thus, on the basis of aforesaid discussion, the accused has been able to rebut the presumption U/s 118 and 139 NI Act by raising a doubt in the case of complainant on the basis of preponderance of probabilities. The complainant has not proved her case beyond reasonable doubt.
Findings of the Court:
18. Thus, in my considered opinion, the accused has been able to raise a probable defence and to raise a doubt in the case of complainant. On the basis of material on record, ingredients of offence U/s 138 NI Act have not been made out against the accused.
CC NI ACT 1858/2021Raminder Kaur Anand Vs. Sunny Kaushik Digitally signed by 7 Out of 8 GARIMA GARIMA Date: 2023.05.17 15:50:34 +05'30' In view of the aforesaid discussion, the accused Sunny Kaushik is hereby acquitted of the offence U/s 138 NI Act.
Copy of this judgment be given dasti to both the parties.
ANNOUNCED IN OPEN COURT.
Digitally signed by ON THIS 17.05.2023 GARIMA GARIMA Date: 2023.05.17 15:50:42 +05'30' (Garima Jindal) MM (NI ACT) Digital Court no 3 North West District Rohini Courts, Delhi/17.05.2023 CC NI ACT 1858/2021 Raminder Kaur Anand Vs. Sunny Kaushik 8 Out of 8