Delhi District Court
Jagraj Kaur vs Sagar Batra on 28 June, 2024
IN THE COURT OF SH. AAKASH SHARMA
METROPOLITAN MAGISTRATE (NI ACT)-03
SOUTH EAST, SAKET: NEW DELHI
1. Complainant case number 637725/2016
2. Name of the complainant Smt. Jagraj Kaur,
W/o Sh. Jasbir Singh,
R/o Q-7A, 3rd Floor,
Jangpura Extension,
New Delhi-110014
3. Name and address of the Sh. Sagar Batra
accused persons S/o Sh. Suraj Batra,
R/o H.No 15, Ground Floor,
Birbal Road, Bhogal,
New Delhi-110014
Also at: H.No. 275, Church
Lane, Jangpura, Bhogal,
New Delhi-110014
4. Offence complained of Section 138 of the Negotiable
Instruments Act, 1881
5. Plea of the accused Pleaded not guilty and claimed
trial
6. Final order Convicted
7. Date of institution 16.12.2016
8. Date of reserving the 05.06.2024
judgment
9. Date of pronouncement 28.06.2024
-:JUDGEMENT:-
AAKASH
1. The present complaint under section 138 Negotiable SHARMA
Instruments Act, 1881 (herein referred to as NI Act) has been filed by Smt. Jagraj Kaur (hereinafter referred to as the Digitally signed by AAKASH Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.1 of31 SHARMA Date:
2024.06.28 15:48:15 +0530 'complainant') against Sh. Sagar Batra (hereinafter referred to as the 'accused').
2. Briefly stated, the case of the complainant is that the complainant and the accused are known to each other as the accused was a very good friend of complainant's husband and the accused was sharing a cordial and friendly relation with the husband of complainant for decades and used to frequently visit complainant's house. That accused was always in constant need of money for his business purpose and for which purpose the accused had taken a friendly loan on various occasions from the AAKASH complainant. That on the basis of assurance given by the accused SHARMA and also keeping in mind the relationship / friendship with the complainant's husband, complainant advanced a friendly loan to Digitally signed by AAKASH the accused on various occasions i.e. on 23.05.2015, 25.01.2016, SHARMA Date:
2024.06.28 10.02.2016, 17.02.2016, 29.02.2016, 11.06.2016 and 19.07.2016. 15:48:23 +0530 That the accused had taken a cumulative friendly loan amounting to Rs. 9,35,000/- from the complainant. That on the insistence of the accused and under good faith and intention, on few occasions, the complainant had even taken a gold loan with the assurance that the accused shall pay the interest on the said gold loan. That on the last occasion i.e. on 19.07.2016, after taking friendly loan in order to discharge of his liability, the accused issued three cheques to the complainant and further stated that the accused will let the complainant know as to when the said cheques were to be deposited on the pretext that he was supposed to get payment very soon. The details of the same are mentioned hereinunder:-
Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.2 of31 Sr. Cheque No. Date Bank Amount No. 1 602434 19.07.201 Canara Bank 1,50,000/-6
2 340198 19.07.201 HDFC Bank 1,00,000/-6
3 312739 19.07.201 HDFC Bank 6,85,000/-6
That the accused kept on extending the date and eventually, started dodging the complainant. That the complainant was left with no other option but to present the aforementioned cheques.
3. Upon presentation of the aforesaid three cheques for encashment i.e. cheque bearing no. 602434 dated 19.07.2016 for an amount of Rs. 1,50,000/- drawn on Canara Bank, the same got dishonoured with the remarks "Kindly Contact Drawer Drawee Bank" vide return memo dated 07.10.2016 qua cheque no. 602434; whereas the cheque bearing no. 340198 dated AAKASH 19.07.2016 for an amount of Rs. 1,00,000/- drawn on HDFC SHARMA Bank, same got dishonoured with the remarks "Account Closed"
vide return memo dated 10.10.2016 qua cheque no. 340198; and Digitally whereas the cheque bearing no. 312739 dated 19.07.2016 for an signed by AAKASH SHARMA amount of Rs. 6,85,000/- drawn on HDFC Bank, the same got Date:
2024.06.28 dishonored with the remarks "Account Closed" vide return 15:48:27 +0530 memo dated 06.10.2016 qua cheque no. 312739. The legal demand notice dated 31.10.2016 was duly sent by the complainant to the accused person through DTDC Lite and registered post on 31.10.2016 at his available addresses. That the accused failed to pay the amount mentioned on the cheques in question within the statutory period. Hence, the present Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.3 of31 complaint under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') was filed.
4. On issuance of summons, the accused entered appearance in the present matter for the first time on 23.03.2017 and accused was admitted to bail on the same day. Notice u/s 251 CrPC was served upon the accused on 01.04.2017, to which he pleaded not guilty and claimed trial. His plea of defence was also recorded.
Thereafter, the accused was allowed to cross-examine the complainant u/s 145(2) NI Act. After examining the complainant as CW-1 on 21.07.2017, 03.05.2018 and 25.09.2018 and CW-2 Sh. Jasbir Singh on 24.01.2023 and 11.05.2023, the complainant evidence was closed vide order dated 11.05.2023 and thereafter, statement of the accused u/s 313 CrPC was recorded on 26.05.2023. Accused wished to lead DE. Accused examined Smt. Preeti Kumar as DW-1 on 24.08.2023 and 21.11.2023. Accused examined himself as DW-2 on 04.12.2023 and 18.04.2024. Accused also examined DW-3 Sh. Joginder Singh Jaidka, Reader in the Court of Ms. Tejenderpreet Kaur, JMIC Jagraon and Record Keeper Judicial Court Jagraon, DW-4 Sh. Kashmir Singh, ARK Additional Record Keeper, Barnala and DW-5 Sh. Anuj Jacob Tigga, JA in the Court of Sh. Rahul Bhatia, ADJ-01, South East, Saket, New Delhi on 25.01.2024 respectively. DE was closed vide order dated 18.04.2024 and the matter was fixed for final arguments. Part final arguments were heard on behalf of complainant on 17.05.2014. Final arguments AAKASH SHARMA on behalf of accused were closed on 05.06.2024 as despite opportunity given, no final arguments were led. Both the parties were given opportunity to file written submissions with relied Digitally signed by upon citations on 05.06.2024. Written submissions alongwith AAKASH SHARMA Date:
Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.4 of31 2024.06.28 15:48:31 +0530 citations were filed on behalf of complainant on 24.06.2024 as well as on behalf of accused on 25.06.2024. The matter was reserved for judgment.
EVIDENCE:-
5. In order to support its case, the complainant had stepped into the witness box as CW-1 and tendered her evidence by way of an affidavit which is Ex.CW1/A into evidence wherein averments made in the complaint were reiterated. She also relied upon various documents such as:
(a) Customer copy of loan sanction letters dated 25.01.2016, 10.02.2016 and 11.06.2016 as Ex.CW1/1 (OSR), Ex.CW1/2 (OSR) and Ex.CW1/3 (OSR) respectively;
(b) Three cheques bearing no. 602434, no. 340198 and no.
312739 all dated 19.07.2016 as Ex.CW1/4, Ex.CW1/6 and Ex.CW1/8 respectively;
(c) Return memo dated 07.10.2016 qua cheque no.
602434, return memo dated 10.10.2016 qua cheque no. 340198 and return memo dated 06.10.2016 qua cheque No. 312739 as Ex.CW1/5, Ex.CW1/7 and Ex.CW1/9 respectively;
(d) Legal demand notice dated 31.10.2016 as Ex.CW1/10;
(e) Postal receipt of India Post as Ex.CW1/11;
(f) DTDC Lite courier receipt as Ex.CW1/12;
(g) Copy of track consignment of India Post as Ex.CW1/13;
(h) Photocopy of written acknowledgment receipt dated 14.11.2014 for Rs. 15,00,000/- payment i.e. Ex.CW1/D1 as Ex.X;
(i) Bank statement of HDFC Bank account no.
5010008960773 for the period 01.05.2015 to 31.03.2016 and from 01.04.2016 to 31.03.2017 as Ex.CW1/X;
Complainant has also examined CW-2 in CE. CW-2 Sh. Jasbir Singh has also tendered his evidence by way of an AAKASH affidavit which is Ex.CW2/A. CW-2 also relied upon the SHARMA following document:
Digitally signed by AAKASH Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.5 of31 SHARMA Date:
2024.06.28 15:48:35 +0530
(a) Copy of PAN Card and Aadhar Card of CW-2 as Ex.CW1/B (OSR).
Per contra, accused got examined DW-1 Smt. Preeti Kumar. Accused also got examined himself as DW-2. Accused also got examined DW-3, DW-4 and DW-5.
Accused relied upon the following documents:
(a) Written acknowledgment receipt dated 14.11.2014 for Rs.
15,00,000/- payment as Ex.CW1/D1;
(b) Record of case no. COMA/19/17 titled as Lakhvir Singh Vs. Suraj Prakash decided by the Court of Sh. Pradeep Synghal then SDJM, Jagraon on 20.12.2018 as Ex.DW3/1 (Colly) (OSR);
(c) Record of case no. COMA/161/2017 titled as Sarabjeet Singh Vs. Paras Decorators decided by the court of Ms. Kulwinder Kaur, JMIC Barnala on 12.10.2018 as Ex.DW4/1(Colly)(OSR);
(d) Original record of pending case no. CSDJ/1876/2017 titled as Jagraj Kaur Vs. Sagar Batra produced by DW-5 which was seen and returned;
(e) Copy of certified copy of the statement of Sh. Sarabjit Singh in case Sarabjit Singh Vs. M/s Paras Decorators as Mark CW2/D1;
(f) Copy of complaints made to SHO PS Jangpura, Officer Incharge Police Chowki Jangpura Bhogal by the accused dated as Ex.CW2/D2 (Colly);
(g) Original legal notice dated 31.10.2016 sent to accused with AAKASH SHARMA envelope as Ex.CW2/D3;
(h) Original legal notice dated 22.11.2016 sent to accused on Digitally signed by AAKASH SHARMA Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.6 of31 Date:2024.06.28 15:48:40 +0530
behalf of Smt. Kirandip Kaur with envelope as Ex.CW2/D4;
(i) Certified copy of index dated 09.10.2018 alongwith annexure-2 pertaining to CS No. 1876/2017 as Ex.CW2/D5;
APPLICABLE LAW:-
6. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed.
Now, Section 138 Negotiable Instrument Act provides as under:
Section 138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless (a) the cheque has been presented to the bank within a period of six months (reduced to AAKASH three months vide notification no. RBI/201112/251, DBOD AMLBCNo. 47/19.01.0062011/12,dated SHARMA 04.11.2011) from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the Digitally signed by AAKASH payment of the said amount of money by giving a SHARMA notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from Date:
2024.06.28 the bank regarding the return of the cheque as 15:48:45 +0530 unpaid; and (c) the drawer of such cheque fails to Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.7 of31 make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation -- for the purposes of this section, "debt or other liability"
means a legally enforceable debt or other liability. It is well settled position of law that to constitute an offence under S.138 N.I. Act, the following ingredients are required to be fulfilled: (1) drawing of the cheque by a person on an account maintained by him with a banker, for payment to another person from out of that account for discharge in whole/part any debt or liability; (2) cheque has been presented to the bank within a period of six months (now three months) from the date on which it is drawn or within the period of its validity whichever is earlier; (3) returning the cheque unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque, (4) 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, (5) 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.
Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the N I Act.
The Act 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) therein and, secondly, a presumption under Section 139, that the holder of cheque receiving the same of AAKASH the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. SHARMA Analysing all the concerned provisions of law and various pronouncements in this regard, the Hon'ble Apex Court in Basalingappa v. Mudibasappa, AIR 2019 SC 1983, noted at para 23 as follows [Bharat Digitally signed Barrel and Drum Manufacturing Company v. Amin by AAKASH SHARMA Chand Pyarelal, (1999) 3 SCC 35; M.S. Narayana Menon alias Mani v. State of Kerala and another, Date:
2024.06.28 (2006) 6 SCC 39; Krishna Janardhan Bhat v. 15:48:49 +0530 Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.8 of31 Dattatraya G. Hegde, (2008) 4 SCC 54; Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513;
Rangappa v. Sri Mohan, (2010) 11 SCC 441 referred]:
(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 imposes 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.
To put in nutshell, the law regarding the presumption for the offence under Section 138 N.I. Act,is that the presumptions under Sections 118(a) and 139 have to be compulsorily raised as soon as execution of cheque by the accused is admitted or proved by the complainant and thereafter burden is shifted upon the accused to prove otherwise. These presumptions shall end 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. The onus to prove the issuance of the cheque lies upon the complainant, and the same has to be proved beyond reasonable doubt, AAKASH unless the accused admits the same. Once the SHARMA issuance of cheque is established, either by admission or by positive evidence, the presumption under Section 139 of the Negotiable Instruments Act, 1881 arises. We can summarize the general Digitally signed principles in the following way: by AAKASH SHARMA Onus of proof: Section 139 of the Negotiable Date:
Instruments Act, 1881 states that it shall be 2024.06.28 presumed, unless the contrary is proved that the 15:48:53 +0530 holder of a cheque received the cheque, of the Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.9 of31 nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. Therefore, here the onus shifts upon the accused to prove the nonexistence of debt or other liability. Section 139 of the N.I. Act uses the word "shall presume", which means that the presumption under Section 139 is rebuttable.
Standard of proof: The standard of proof required to rebut the presumption under Section 139 is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or other liability, the onus shifts back to the complainant to prove by way of evidence, beyond reasonable doubt, that the cheque in question was issued by the accused in discharge, whole or in part, of any debt or other liability, and now the presumptions under Section 118 (a) and Section 139 will not come to the aid of the complainant.
Mode of Proof: The accused may adduce direct evidence to prove that the cheque in question was not supported by consideration, and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should prove the nonexistence of the consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that a bare denial of passing of consideration and existence of debt, 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 presumptions, the accused should bring on record such facts and circumstances upon the consideration of which, the Court may either believe that the consideration and debt did not exist, or their nonexistence was so probable that a prudent man would, under circumstances of the case, act upon the plea that they did not exist.
As discussed above, from the legal provisions and AAKASH the law laid down in various judgments, it can be safely gathered that it is for the accused to rebut the SHARMA presumptions. He can do so by cross examining the complainant, leading defence evidence, thereby demolishing the case of the complainant. It is amply Digitally signed clear that the accused does not need to discharge his by AAKASH or her liability beyond the shadow of reasonable SHARMA Date:
Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.10 of31 2024.06.28 15:48:57 +0530 doubt. He just needs to create holes in the case set out by the complainant. Accused can say that the version brought forth by the complainant is inherently unbelievable and therefore the prosecution cannot stand. In this situation the accused has nothing to do except to point inherent inconsistency in the version of the complainant or the accused can give his version of the story and say that on the basis of his version the story of the complainant cannot be believed.
ARGUMENTS AND APPRECIATION OF EVIDENCE:-
7. Ld. Counsel for the complainant has argued that all the requirements of Section 138 NI Act have been met with in the present case and hence, the accused be convicted. I have heard the arguments and also gone through the record with due circumspection.
8. In the case at hand, Ld. Counsel for the complainant has submitted that the accused has not disputed the issuance of the cheques or the signatures on the cheques in the present case, thus, the presumptions u/s 118 (a) read with Section 139 of NI Act about the cheques in question having been issued for consideration and in discharge of legal liability should arise in favor of the complainant. Ld. Counsel for the complainant has filed written submissions on behalf of the complainant wherein it is submitted that the accused was always in constant need of money for his business purpose and for which purposes, the accused on various occasions had taken a friendly loan from the complainant. That on the basis of assurances given by the accused and also keeping in mind the relationship / friendship AAKASH SHARMA with the complainant's husband, complainant advanced a friendly loan to the accused on various occasions i.e. on 23.05.2015, Digitally signed 25.01.2016, 10.02.2016, 17.02.2016, 29.02.2016, 11.06.2016 and by AAKASH SHARMA Date: Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.11 of31 2024.06.28 15:49:01 +0530 19.07.2016. That the accused had taken a cumulative friendly loan amounting to Rs. 9,35,000/- (Rs. Nine Lacs Thirty Five thousand Only) from the complainant. That on the basis of assurances given by the accused and also keeping in mind his friendship with the complainant's husband, the complainant lend money to the accused. That only on the insistence of the accused person and under good faith and intention, on few occasions, the complainant has even taken a gold loan with the assurance that the accused shall pay the interest on the said gold loan. That on the last occasion i.e. on 19.07.2016, after taking a friendly loan amount, in order to discharge of his liability, the accused issued three cheques to the complainant and the same were bounced on their presentation. That on 31.10.2016, the complainant sent a legal notice under Section 138 NI Act to the accused and the same was duly received by the accused on 01.11.2016. That the period of 15 days was expired on 16.11.2016, however, the accused did not repay the aforesaid loan amount, discharge his liability and further, did not even bother to reply to the said legal notice.
That in pre-summoning evidence, the complainant namely Mrs. Jagraj Kaur examined herself as CW-1 on affidavit being Ex.CW1/A and placed certain documents on record i.e. Loan Sanction Letters i.e. dated 25.01.2016 as Ex.CW1/1, dated AAKASH 10.02.2016 as Ex.CW1/2 & dated 11.06.2016 as Ex.CW1/3. SHARMA Cheque bearing no. 602434 as Ex.CW1/4, returning memo dated 07.10.2016 as Ex.CW1/5. Cheque bearing no. 340198 as Digitally signed by Ex.CW1/6, returning memo dated 10.10.2016 as Ex.CW1/7. AAKASH SHARMA Date:
Cheque bearing no. 312739 as Ex.CW1/8, returning memo dated 2024.06.28 15:49:06 +0530 06.10.2016 as Ex.CW1/9. Copy of legal notice dated 31.10.2016 Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.12 of31 as Ex.CW1/10, postal / courier receipts are Ex.CW1/11 & Ex.CW1/12 and the delivery status is Ex.CW1/13.
That thereafter on 01.04.2017, notice under Section 251 Cr.P.C. was framed upon the accused wherein the accused had admitted being the drawer of the cheques and also admitted his signatures on the said cheques. Accused specifically stated that he did not receive any legal demand notice. That accused further stated that he had taken a loan from Sh. Jasbir Singh for a sum amounting to Rs. 9,35,000/- and had issued cheques to Sh. Jasbir Singh. That the only defence taken by the accused in his application under Section 145(2) is that the applicant is not known to the complainant and has never issued the cheques in question to the complainant and issued the blank signed cheques and pronote to one Sh. Jasbir Singh only as security and the applicant has returned the loan amount which was taken by the accused from Sh. Jasbir Singh. Moreover, the accused has denied the receipt of the legal notice. That the complainant adopted her pre-summoning evidence as post-summoning evidence and was extensively cross-examined by the accused. That the complainant in her cross-examination has affirmed her case. That even CW-2 was examined as a witness and the evidence affidavit of CW-2 remained unrebutted in cross-examination. CW-2 had specifically stated that accused had removed the revenue stamp from Ex.CW1/D1. That the accused had concocted a bogus story in his statement under Section 313 Cr.P.C. That the accused in his cross-examination has specifically stated that his name is not AAKASH SHARMA mentioned in Ex.CW1/D1 and even the cheques in question have not been detailed in Ex.CW1/D1. That accused has taken Digitally signed contradictory / new stands in his statement under Section 251 by AAKASH SHARMA Date: Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.13 of31 2024.06.28 15:49:11 +0530 Cr.P.C. and statement under Section 313 Cr.P.C. Ld. Counsel for the complainant has relied upon the following judgments:- (i) Rangappa Vs. Mohan dated 07.05.2010 passed by the Honb'le Supreme Court, (ii) Sheela Sharma Vs. Mahendra Pal dated 02.08.2016 passed by the Hon'ble Delhi High Court, (iii) Virender Soni Vs. State of NCT of Delhi dated 15.02.2017 passed by the Hon'ble Delhi High Court, (iv) Mukesh Kumar Vs. State & Anr dated 02.02.2017 passed by the Hon'ble Delhi High Court and (v) Rajender Prasad Vs. Darshana Devi dated 10.08.2001 passed by the Hon'ble Supreme Court.
9. On the contrary, Ld. Counsel for accused had submitted vide written submissions that complainant failed to prove her financial status of the source of money from which she extended loan of Rs. 9,35,000/- in cash to the accused on various occasions. It is further submitted that in the complaint under Section 138 NI Act, the complainant had only mentioned the various dates on which the complainant gave the amounts amounting to cumulatively Rs. 9,35,000/-, however, complainant during her cross-examination conducted on 21.07.2017 impoved her version by not only mentioning the various dates but also the monies given by her to the accused which total amounted to more than Rs. 9,35,000/- i.e. Rs. 10,15,000/-. That complainant only disclosed her monthly income of Rs. 40,000/- to Rs. 50,000/- and of her husband CW-2 as Rs. 40,000/- per month in her cross- examination conducted on 21.07.2017. Whereas, CW-2 in his cross-examination dated 24.01.2023, deposed that his monthly AAKASH SHARMA income was only Rs. 11,000/- per month. That complainant in her cross-examination dated 21.07.2017 disclosed that she had some Digitally signed by AAKASH agricultural income whereas her cousin brother i.e. Lakhvir SHARMA Date:
Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.14 of31 2024.06.28 15:49:15 +0530 Singh in case titled as Lakhvir Singh Vs. Suraj Prakash had deposed that his uncle i.e. father of the complainant had transferred the agricultural land in his and his brother namely Sukhvir Singh's name about 5-6 years ago i.e. in 2011-12 which is already Ex.DW3/1(Colly) (OSR). It is submitted that CW-2 i.e. husband of the complainant had misused the various cheques of the accused and also of the father of the accused (now deceased) by way of proxy litigation by filing various cases in the name of his brother-in-law vide case no. COMA/19/17 titled as Lakhvir Singh Vs. Suraj Prakash decided by the Court of Sh. Pradeep Synghal then SDJM, Jagraon on 20.12.2018 which is Ex.DW3/1 (Colly) (OSR) and also case no. COMA/161/2017 titled as Sarabjit Singh Vs. Paras Decorators decided by the court of Ms. Kulwinder Kaur, JMIC Barnala on 12.10.2018 which is Ex.DW4/1(Colly)(OSR). That the complainant and her husband CW-2 also misused one cheque of the accused in the name of sister of CW-1 Smt. Kirandip Kaur who is a sister of the complainant as per Ex.CW2/D4 since legal notices Ex.CW2/D3 and Ex.CW2/D4 were sent by the same Advocate Sh. Surjeet Singh Malhotra. Further, CW-2 had also admitted the signatures of CW-1 as a witness in document Ex.CW1/D1 at point X. That complainant had stated in her evidence affidavit that she had taken gold loan on few occasions with the assurance that accused will pay the interest on the gold loan. That the Hon'ble Delhi High Court in Wilson Mathew Vs. State of NCT of Delhi in CRL AAKASH SHARMA Rev. P. No. 188/2015 decided on 15.09.2015 has observed that no one lends money to another person by taking loan. That further, CW-2 deposed that he and his wife i.e. CW-1 are not income tax Digitally signed by payee. That CW-1 had stated that she gives tuition to children AAKASH SHARMA Date:
Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.15 of31 2024.06.28 15:49:20 +0530 studying from classes VI to XII whereas CW-2 stated that CW-1 is a housewife. That testimony of CW-1 and CW-2 is opposite to each other. That Hon'ble Delhi High Court in various judgments i.e. Sanjay Verma Vs. Gopal Halwai decided on 15.03.2019, in Ashok Vs. Kamal Bogh & Anr decided on 06.10.2015, in Devender Kumar Vs. Khem Chand decided on 06.10.2015 and in Anil Aggarwal Vs. State & Ors decided on 12.08.2015 has decided cases in favour of the accused when the complainant failed to prove his financial capacity, non filing of ITR or not disclosing the loan amount in the ITR. That the complainant also did not examine the concerned person from where complainant had taken the gold loan. That in order to retaliate against the accused who had given complaints Ex.CW2/D2 (Colly) at PS Jangpura, the complainant and her family members started proxy litigations against the accused in various jurisdictions in order to harass the accused and also the father of the accused who was also similarly embroiled in such litigations by the family members of the complainant. That there was no transactions between the complainant and the accused. Rather, there were transactions between the husband of the complainant and the father of the accused and the cheques of the accused as well as cheques of the father of the accused were handed over to CW-2 which transaction was already completed as CW-2 issued acknowledgment receipt Ex.CW1/D1. That Ex.CW1/D1 is an admitted document vis-a-vis return of Rs. 15 Lacs to CW-2 and AAKASH also CW-2 has acknowledged therein that various cheques had SHARMA been lost in his car. That as per Ex.DW4/1 (Colly), Sarabjit Singh had deposed in the case titled as Sarabjit Singh Vs. M/s Paras Digitally signed Decorators that CW-2 Jasbir Singh had taken Rs. 2,00,000/- from by AAKASH SHARMA Date: 2024.06.28 Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.16 of31 15:49:24 +0530 him and that it was Jasbir Singh who had handed over the cheque pertaining to that case to him. Further, Sarabjit Singh had deposed that complainant herein and her father Sh. Balour Singh had already sold the agricultural land from their village Govindgarh since 30 years ago which showed that complainant herein has no agricultural income as she does not own agricultural land. It is submitted that CW-2 had misused the cheques and initiated proxy litigations in the name of his family members against the accused. That DW-1 had deposed in favour of the accused and demolished the case of the complainant. That Ex.CW1/D1 is also present in the judicial files Ex.DW3/1 (Colly) and Ex.DW4/1 (Colly) which establishes the defence taken by the father of the accused as well as the accused herein as consistent defence. That Ex.CW1/D1 is an original document on which the revenue stamp is missing upon the original at point C whereas it is present at point P in the photocopy filed by CW-1 as Ex.X (Mark X) and it shows the bonafide of the accused as why would accused remove the revenue stamp from the same and there is every possibility that the revenue stamp might have got removed itself with passage of time. That the case of the complainant had been demolished in cross-examination and there was no legally recoverable debt of any kind qua the cheques in question. That the complainant had misused the cheques in question on the instance of her husband. Therefore, presumption under Section 139 of NI Act, should not arise.
10. I have carefully considered the submissions of both the AAKASH parties and perused the record of the case. SHARMA Digitally signed by AAKASH Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.17 of31 SHARMA Date: 2024.06.28 15:49:31 +0530
11. The three-Judge Bench of hon'ble Supreme Court in Rangappa Vs. Sri Mohan, (2010) 11 SCC 441 has held that:
"where the fact of signature on the cheque is acknowledged, a presumption has to be raised that the cheque pertained to a legally enforceable debt or liability, however, this presumption is of a rebuttable nature and the onus is then on the accused to raise a probable defence."
In the present case, the accused has admitted his signatures on the cheques Ex.CW1/4, Ex.CW1/6 and Ex.CW1/8. Thus, the factum of signatures on the cheques is not disputed and has been acknowledged.
12. It is pertinent to mention here that Section 139 only raises the presumption on fulfillment of its conditions that the cheque was issued for discharge of in whole or in part any debt or other liability but there is no presumption as to the existence of the debt or liabilty as such. In Rangappa (supra) it has been held that :
"Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability."
13. As regards the legal notice i.e. Ex.CW1/10, same has been sent vide courier DTDC Lite i.e. Ex.CW1/12 as well as vide registered post i.e. Ex.CW1/11 and as per the tracking report of India Post i.e. Ex.CW1/13, same has been delivered upon the addressee at the address H.No. 15, Ground Floor, Birbal Road, Bhogal, New Delhi-110014. It is pertinent to note that this AAKASH address is the same address which is mentioned on a document SHARMA relied upon by the accused i.e. Ex.CW1/D1 which also mentions the same address as the address of the accused. Significantly, Digitally signed by AAKASH Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.18 of31 SHARMA Date:
2024.06.28 15:49:35 +0530 accused has denied receiving the legal demand notice in his statement under Section 251 Cr.P.C. recorded on 01.04.2017 but during cross-examination of CW-2, the Ld. Counsel for the accused has himself produced and confronted CW-2 with the original legal demand notice dated 31.10.2016 i.e. Ex.CW2/D3 which had been received by the accused from the complainant which is a facsimile of the legal demand notice relied on by the complainant i.e. Ex.CW1/10. As per provisions of Section 114 of Indian Evidence Act, 1872, read with Section 27 of General Clauses Act, the court may presume that legal notice duly addressed to the accused and dispatched to him by way of post was actually received by the accused, regard being had to common course of natural events. Reliance is also placed upon the case of C C Alavi Haji v. Palapetty Muhammed [2007 (6) SCC 555] wherein it was held by the Hon'ble Supreme Court that:
"it is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. 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 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 alongwith the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service AAKASH of notice as required under Section 138, by ignoring SHARMA statutory presumption to the contrary under Section 27 of General Clauses Act and Section 114 of Indian Evidence Act." Digitally signed by AAKASH SHARMA Date: 2024.06.28 15:49:39 +0530 Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.19 of31 Considering that the document Ex.CW2/D3 i.e. the original legal demand notice with postal envelope has been produced on behalf of the accused itself to confront CW-2 and this document is a facsimile of the legal demand notice Ex.CW1/10, it appears that accused was duly served with the legal demand notice Ex.CW1/10. It appears that accused has falsely claimed in his statement under Section 251 Cr.P.C. that he did not receive the legal demand notice.
Hence, legal demand notice Ex.CW1/10 was duly served on the accused.
14. As regards to the fact of dishonor of the cheques in question, the return memos filed by the complainant clearly show that the cheques in question were dishonored. In the case at hand, neither any argument has been raised on behalf of the accused to dispute the dishonor of the cheques nor this fact has been denied at any stage of the matter. Thus, taking into account that dishonor of cheques is not disputed, this fact, also stands proved.
15. Thus, the presentation of the cheques in question, their dishonor and service of legal notice is not under question. Consequently, the complainant has successfully raised a presumption under Section 139 NI Act.
Accordingly, it is required to be presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e., the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the accused to AAKASH establish a probable defence so as to rebut such a presumption. SHARMA In the segment on legal framework, set out above, the legal Digitally signed proposition with respect to the burden of proof upon the accused by AAKASH SHARMA Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.20 of31 Date:
2024.06.28 15:49:44 +0530 has already been discussed. Hence, it is now to be examined as to whether the accused brought any material on record or pointed out glaring discrepancies in the material produced by the Complainant for dislodging the presumption which meets the standard of preponderance of probabilities.
16. The defence raised by the Ld. Counsel for the accused is that complainant failed to prove her financial status of the source of money from which she extended loan of Rs. 9,35,000/- in cash to the accused on various occasions. It is further submitted that in the complaint under Section 138 NI Act, the complainant had only mentioned the various dates on which the complainant gave the amounts amounting to cumulatively Rs. 9,35,000/-, however, complainant during her cross-examination conducted on 21.07.2017 impoved her version by not only mentioning the various dates but also the monies given by her to the accused which total amounted to more than Rs. 9,35,000/- i.e. Rs. 10,15,000/-. That complainant only disclosed her monthly income of Rs. 40,000/- to Rs. 50,000/- and of her husband CW-2 as Rs. 40,000/- per month in her cross-examination conducted on 21.07.2017. Whereas, CW-2 in his cross-examination dated 24.01.2023, deposed that his monthly income was only Rs. 11,000/- per month. That complainant in her cross-examination dated 21.07.2017 disclosed that she had some agricultural income whereas her cousin brother i.e. Lakhvir Singh in case titled as Lakhvir Singh Vs. Suraj Prakash had deposed that his uncle i.e. father of the complainant had transferred the AAKASH SHARMA agricultural land in his and his brother namely Sukhvir Singh's name about 5-6 years ago i.e. in 2011-12 which is already Digitally signed by AAKASH SHARMA Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.21 of31 Date:
2024.06.28 15:49:49 +0530Ex.DW3/1(Colly) (OSR). It is submitted that CW-2 i.e. husband of the complainant had misused the various cheques of the accused and also of the father of the accused (now deceased) by way of proxy litigation by filing various cases in the name of his brother-in-law vide case no. COMA/19/17 titled as Lakhvir Singh Vs. Suraj Prakash decided by the Court of Sh. Pradeep Synghal then SDJM, Jagraon on 20.12.2018 which is Ex.DW3/1 (Colly) (OSR) and also case no. COMA/161/2017 titled as Sarabjit Singh Vs. Paras Decorators decided by the court of Ms. Kulwinder Kaur, JMIC Barnala on 12.10.2018 which is Ex.DW4/1(Colly)(OSR). That the complainant and her husband CW-2 also misused one cheque of the accused in the name of sister of CW-1 Smt. Kirandip Kaur who is a sister of the complainant as per Ex.CW2/D4 since legal notices Ex.CW2/D3 and Ex.CW2/D4 were sent by the same Advocate Sh. Surjeet Singh Malhotra. Further, CW-2 had also admitted the signatures of CW-1 as a witness in document Ex.CW1/D1 at point X. That complainant had stated in her evidence affidavit that she had taken gold loan on few occasions with the assurance that accused will pay the interest on the gold loan. That the Hon'ble Delhi High Court in Wilson Mathew Vs. State of NCT of Delhi in CRL Rev. P. No. 188/2015 decided on 15.09.2015 has observed that no one lends money to another person by taking loan. That further, CW-2 deposed that he and his wife i.e. CW-1 are not income tax payee. That CW-1 had stated that she gives tution to children studying from classes VI to XII whereas CW-2 stated that CW-1 is a housewife. That testimony of CW-1 and CW-2 is opposite to AAKASH each other. That Hon'ble Delhi High Court in various judgments SHARMA i.e. Sanjay Verma Vs. Gopal Halwai decided on 15.03.2019, in Digitally signed Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.22 of31 by AAKASH SHARMA Date: 2024.06.28 15:49:54 +0530 Ashok Vs. Kamal Bogh & Anr decided on 06.10.2015, in Devender Kumar Vs. Khem Chand decided on 06.10.2015 and in Anil Aggarwal Vs. State & Ors decided on 12.08.2015 has decided cases in favour of the accused when the complainant failed to prove his financial capacity, non filing of ITR or not disclosing the loan amount in the ITR. That the complainant also did not examine the concerned person from where complainant had taken the gold loan. That in order to retaliate against the accused who had given complaints Ex.CW2/D2 (Colly) at PS Jangpura, the complainant and her family members started proxy litigations against the accused in various jurisdictions in order to harass the accused and also the father of the accused who was also similarly embroiled in such litigations by the family members of the complainant. That there were no transactions between the complainant and the accused. Rather, there were transactions between the husband of the complainant and the father of the accused and the cheques of the accused as well as cheques of the father of the accused were handed over to CW-2 which transaction was already completed as CW-2 issued acknowledgment receipt Ex.CW1/D1. That Ex.CW1/D1 is an admitted document vis-a-vis return of Rs. 15 Lacs to CW-2 and also CW-2 has acknowledged therein that various cheques had been lost in his car. That as per Ex.DW4/1 (Colly), Sarabjit Singh had deposed in the case titled as Sarabjit Singh Vs. M/s Paras Decorators that CW-2 Jasbir Singh had taken Rs. 2,00,000/- from him and that it was Jasbir Singh who had handed over the cheque pertaining to that case to him. Further, Sarabjit Singh had AAKASH deposed that complainant herein and her father Sh. Balour Singh SHARMA had already sold the agricultural land from their village Digitally signed by AAKASH Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.23 of31 SHARMA Date: 2024.06.28 15:49:58 +0530 Govindgarh since 30 years ago which showed that complainant herein has no agricultural income as she does not own agricultural land. It is submitted that CW-2 had misused the cheques and initiated proxy litigations in the name of his family members against the accused. That DW-1 had deposed in favour of the accused and demolished the case of the complainant. That Ex.CW1/D1 is also present in the judicial files Ex.DW3/1 (Colly) and Ex.DW4/1 (Colly) which establishes the defence taken by the father of the accused as well as the accused herein as consistent defence. That Ex.CW1/D1 is an original document on which the revenue stamp is missing upon the original at point C whereas it is present at point P in the photocopy filed by CW-1 as Ex.X (Mark X) and it shows the bonafide of the accused as why would accused remove the revenue stamp from the same and there is every possibility that the revenue stamp might have got removed itself with passage of time. That the case of the complainant had been demolished in cross-examination and there was no legally recoverable debt of any kind qua the cheques in question. That the complainant had misused the cheques in question on the instance of her husband. Therefore, presumption under Section 139 of NI Act, should not arise.
17. Upon a careful perusal of the cross-examination of the complainant / CW-1 it appears that CW-1 has provided the account of the money given by her on various dates to the accused. This court does not find force in the submission of the Ld. Counsel for the accused that the complainant has improved AAKASH SHARMA her version or that complainant has given the details of the payments which total is amounting to Rs. 10,15,000/-. Upon Digitally signed by AAKASH SHARMA Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.24 of31 Date:
2024.06.28 15:50:02 +0530 perusal of the testimony, it is clear that complainant / CW-1 has disclosed the details of payments made on various dates which upon totaling amounts to Rs. 9,60,000/- and not Rs. 10,15,000/-. Although the total Rs. 9,60,000/- does not correlate to Rs. 9,35,000/- which is the amount cumulatively mentioned in the complaint, however, considering that there is a lapse of time since the dates of the payments vis-a-vis the day on which CW-1 had deposed, CW-1 cannot be expected to have razor sharp memory when the difference between the two amounts Rs. 9,60,000/- and Rs. 9,35,000/- is only a meagre Rs. 25,000/-. The entire testimony of the complainant / CW-1 cannot be considered a falsehood on such a minor inconsistency. As far as the submission that complainant in her cross-examination has improved her testimony by also mentioning the money alongwith the various dates whereas same has not been mentioned in the complaint is concerned, from an overall reading of the evidence as well as the record of the case, the submission of the Ld. Counsel for the accused does not hold water. It is apparent from a reading of the statement of the accused under Section 251 Cr.P.C. that the accused has admitted therein on 01.04.2017 before the court that accused had taken loan for sum amounting to Rs. 9,35,000/-, albeit from Sh. Jasbir Singh (CW-2/ husband of complainant). Thus, the amount itself being Rs. 9,35,000/- is undisputed and only the fact whether complainant lent this amount to the accused or her husband has been disputed. Therefore the submission of Ld. Counsel for the accused is liable AAKASH to be rejected. SHARMA Digitally signed by AAKASH Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.25 of31 SHARMA Date:
2024.06.28 15:50:07 +0530
18. As far as the defence regarding the financial capacity of the complainant is concerned. Ld. Counsel for the accused has cross-examined CW-1 as well as CW-2 regarding the same and has also produced judicial record such as Ex.DW3/1 (Colly) and Ex.DW4/1 (Colly) to buttress his argument. Ld. Counsel for the accused has pressed the point that CW-1 has disclosed herself to be a housewife and earning a monthly income of Rs. 40,000/- to Rs. 50,000/- in her cross-examination, which she is stated to be earning by giving tuitions to children of class VI to XII. Although it is correct that CW-2 has not deposed that his wife i.e. complainant/CW-1 is earning money by giving tuitions and has only stated that his wife CW-1 was a housewife when CW-1 filed the present case, the answer to the said question posed by Ld. Counsel for the accused is qualified with the words "when complainant filed the present case that she was a housewife". The claim of CW-1 that she was giving tuitions to children of class VI to XII and earning Rs. 40,000/- to Rs. 50,000/- cannot be held as disproved by accused. It is to be noted that CW-1 had given her deposition to this effect on 21.07.2017 whereas CW-2 had given his deposition on 24.01.2023 i.e. after a considerable period of time. It is also to be noted that Ld. Counsel for the accused has not confronted CW-2 with the statement of CW-1 nor asked CW- 2 categorically whether his wife i.e. CW-1 ever gave or gives any tuitions to children of class VI to XII or not. Even if CW-2 has deposed that he was earning Rs. 11,000/- per month when his wife i.e. complainant filed the present case, this would not by itself help the case of the accused. AAKASH SHARMA
19. Another submission of the Ld. Counsel for the accused Digitally signed by AAKASH SHARMA Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.26 of31 Date:
2024.06.28 15:50:11 +0530 regarding financial capacity of the complainant is that CW-1 was not having any agricultural income and that cousin brother of CW-1 Lakhvir Singh in Ex.DW3/1 (Colly) had deposed on 24.07.2018 in case titled as Lakhvir Singh Vs. Suraj Prakash that his uncle i.e. father of the complainant had transferred the agricultural land in his and his brother Sukhvir Singh's name about 5-6 years ago i.e. in 2011-12. I have considered this submission, but it is pertinent to take judicial notice of the fact that neither Lakhvir Singh nor Suraj Prakash (father of accused) are parties to the present case. The present case is on a separate footing altogether. Each cheque by itself constitutes a separate cause of action and once presumption has been raised against the accused, the accused has to rebut the same. Whether or not complainant was deriving agricultural income or not is not the issue to be tried in this case. It is only an ancillary issue to question the financial soundness of the complainant to extend the loan or to tarnish her credibility. But even if the submission of Ld. Counsel for accused is accepted that complainant earns no agricultural income, still complainant in her testimony has given details of how she arranged the monies to lend to the accused.
The accused has admitted taking a loan amounting to Rs. 9,35,000/-, even if not from the complainant, but from husband of the complainant in his statement under Section 251 Cr.P.C. It thus appears that accused during his statement u/s 313 Cr.P.C. and his testimony as DW-2, DW-2 has changed his defence altogether by stating instead that the loan was for Rs. 15,00,000/- and that same had been taken not by him but by the father of the AAKASH accused from the husband of the complainant and that the father SHARMA of the accused had handed over cheques belonging to the accused Digitally signed by AAKASH Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.27 of31 SHARMA Date: 2024.06.28 15:50:15 +0530 to the husband of the complainant. The accused in his cross- examination has stated that he has not taken separately any Rs. 9,35,000/- from the complainant, but stated that his father had taken Rs. 15,00,000/- from the husband of the complainant which amount the father of the accused had returned to the husband of the complainant as per Ex.CW1/D1. It is pertinent to note that the complainant has never disputed Ex. CW1/D1. Both CW1 and CW2 have admitted this document on the first occasion itself when it was put to them on behalf of the Ld. Counsel for the accused in their respective cross-examination. I have considered Ex. CW1/D1 carefully. Ex. CW1/D1 only mentions about returning of the debt owed by father of the accused Sh. Suraj Batra to the husband of the complainant Sh. Jasbir Singh. It nowhere mentions the accused, nor any debt owed by the accused nor any cheque pertaining to the accused. It only mentions about the cheques and pro-note of a singular person Sh. Suraj Batra. It is also stated therein that beginning from 14.11.2014 Sh. Jasbir Singh, husband of complainant herein will not claim Rs. 15,00,000/- from Sh. Suraj Batra i.e. father of accused. The document Ex.CW1/D1 nowhere talks about any cheques belonging to the accused. It is to be noted that the document Ex.CW1/D1 does not mention the accused at all nor has been signed by the accused. On the other hand, admittedly the complainant has signed the same as a witness, the husband of the complainant has signed the same as its executor and the father of the accused has also signed the same acknowledging his AAKASH owed debt which he is returning. The document is a cash SHARMA acknowledgment receipt for Rs. 15,00,000/- Accused is a complete stranger to Ex.CW1/D1 as neither he, nor his cheques Digitally signed by AAKASH SHARMA Date:
Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.28 of31 2024.06.28 15:50:19 +0530 are specifically mentioned therein. Also, the case of the complainant chronologically arises after the execution of Ex.CW1/D1. It appears that the accused has taken contradictory defences throughout the trial. Accused nowhere mentioned his father or that his father had taken a loan of Rs. 15,00,000/- from the husband of the complainant in his statement under Section 251 Cr.P.C. If accused had taken no loan from the complainant, he could have simply stated under section 251 Cr.P.C. that he has not taken any loan whatsoever from the complainant but only given cheques as security for a loan of Rs. 15 Lacs taken by his father from the husband of the complainant which his father has returned as per acknowledgment receipt Ex. CW1/D1, but that security cheques of accused were not returned to him by husband of the complainant. Instead accused made no mention at all about his father having taken the loan, or of the loan amount being Rs. 15,00,000/- or even stated anything regarding existence of the document Ex. CW1/D1. It thus appears that Ex. CW1/D1 has nothing to do with the cheques in question and the cheques in question pertain to a separate loan transaction done by the accused with the complainant for a cumulative amount of Rs. 9,35,000/-. Hence, the defence raised by the accused that the transaction of Rs. 9,35,000/- is not any separate transaction but that it is included in Rs. 15,00,000 is liable to be rejected.
AAKASH SHARMA
20. The accused has also not been truthful to the Court on another aspect. Accused denied receiving the legal demand notice Digitally signed by Ex. CW1/10 in his statement under section 251 Cr.P.C. Whereas, AAKASH SHARMA Date:
Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.29 of31 2024.06.28 15:50:25 +0530 accused has himself got produced the document Ex.CW2/D3 i.e. the original legal demand notice with postal envelope to confront CW-2 which document is a facsimile of the legal demand notice Ex.CW1/10. Accused has falsely claimed in his statement under Section 251 Cr.P.C. that he did not receive the legal demand notice when he actually received the legal demand notice from the complainant. Thus, despite receiving the legal demand notice Ex. CW1/10, the accused chose to give no reply to the same to the complainant. Even the complaints Ex. CW2/D2 given at the instance of the accused and his family to PS Jungpura are completely irrelevant to the subject matter of this case. Even the witness DW-1 examined as a last ditch effort by the accused has not succeeded to rebut the presumption raised against the accused as DW-1 was not present during the entire course of events as her attention was gathered by kitchen work at the time.
On the other hand, the complainant has supported her case by placing on record documentary and other evidences which could not be rebutted by the accused. The complainant, throughout the trial had stuck to one version and did not deviate from her stand even when questions were thrown at her at the time of her cross examination. In a nutshell, the complainant has been successful in proving her case beyond reasonable doubt.
CONCLUSION:-
AAKASH
21. This court finds that cumulatively, the accused has failed SHARMA to rebut the presumption raised against him under section 139 NI Act. Digitally signed by AAKASH SHARMA Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.30 of31 Date:
2024.06.28 15:50:31 +0530 DECISION:-
22. Resultantly, the accused is convicted of the alleged offence under section 138 of NI act.
Announced in the open court today on 28th June, 2024.
This judgment contains 31 pages all are signed by me. A copy of this judgment be placed on the official website of the District Court.
Digitally signed AAKASH by AAKASH
SHARMA
SHARMA Date: 2024.06.28
15:50:36 +0530
(AAKASH SHARMA)
Metropolitan Magistrate-03 (NI Act)
South-East, Saket Courts, New Delhi.
Ct. Case No. 637725/2016 Jagraj Kaur Vs. Sagar Batra Page No.31 of31