Delhi District Court
Cnr. Dlct020185422019 Rama Rani ... vs Ajay Rawal Page 1 Of 25 on 23 May, 2022
CC No. 7879/19
CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 1 of 25
IN THE COURT OF SH. VISVESH, METROPOLITAN
MAGISTRATE, N.I. ACT-06, CENTRAL, TIS
HAZARI COURTS, DELHI
CNR: DLCT020185422019
CC No. 7879/19
Smt. Rama Rani Aggarwal
W/o Late Sh. R.R. Aggarwal
R/o- 100, 2nd Floor, Nimri Colony
Ashok Vihar, Delhi -110052 ......Complainant
Vs.
Sh. Ajay Rawal
S/o Sh. R.K. Rawal
R/o - A-5/241, Paschim Vihar
N. Delhi -63 ......Accused
Date of Institution : 22.07.2019
Offence complained of : s.138 of The Negotiable Instruments
Act,1881
Plea of the Accused : Not Guilty
Final Order : Acquittal
Date of Decision : 23.05.2022
JUDGEMENT
1. The present Complaint has been filed by the Complainant against the Accused under section 138 Negotiable Instruments Act, 1881.
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2. The brief facts as alleged by the Complainant in the Complaint are that the Complainant and the Accused were neighbours for more than fifty years and the Accused had visited the house of the Complainant on numerous occasions.
2.1 It is alleged that the Accused demanded loan of ₹ 250,000 as he took project of construction of mobile towers for JIO company in Himachal Pradesh and on 25th of May 2018, the Complainant gave friendly loan of an amount of ₹ 250,000 and in lieu of the same, the respondent issued a cheque bearing No. 169578 dated 25th of May 2019 amounting ₹ 250,000 drawn on IDBI Bank, Branch Paschim Vihar branch, Delhi along with receipt and pro-note.
2.2 It is alleged that the tenure of the loan was one year and the Accused assured that the issued cheque would be duly honoured on presentation as he would complete the project and would also receive the payment from the JIO company.
2.3 It is further alleged that when the Complainant deposited the said cheque with her account at State Bank of India, branch Tis Hazari and the same returned with remarks "Funds Insufficient" vide cheque return memo dated 28th of June 2019.
2.4 It is alleged that on 2nd of July 2019, the Complainant sent a statutory legal demand notice to the Accused. The notice is alleged to be duly served upon the Accused and even after receiving the legal notice, it Page 2 of 25 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7879/19 CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 3 of 25 is alleged that the Accused has neither paid the cheque amount to the Complainant within the statutory period nor tendered any reply of the legal notice till date.
2.5 Hence, the present Complaint u/s 138 Negotiable Instrument Act 1881 (hereinafter the NI Act) was filed on 22nd of July 2019 by the Complainant, praying for the Accused to be summoned, tried, and punished for commission of the offence u/s 138 of the Negotiable Instruments Act, 1881. The Complainant has averred that the present Complaint is within the period of limitation and falls within the territorial limits of this Court's jurisdiction; thus, being tenable at law.
Proceedings before the court
3. Pre-summoning Evidence: To prove a prima-facie case, the Complainant led pre-summoning evidence by way of affidavit Ex. CW-1/A wherein the Complainant has affirmed the facts stated in the instant Complaint.
4. Documentary Evidence: To prove the case, the Complainant has relied upon the following documents:
a) Original cheque bearing no. 169578 dated 25th of May 2019 for a sum of ₹ 250,000 drawn on IDBI bank, Paschim Vihar Branch, New Delhi, Ex. CW1/1.
b) Original cheque return memo dated 28th of June 2019, Ex.
CW1/2.
c) Office Copy of legal notice dated 2nd of July 2019 and its postal receipt, Ex. CW1/3 (Colly).
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5. Summoning of the Accused: On finding of a prima-facie case against the Accused, the Accused was summoned on 1st of August 2019 where the Accused appeared before the court on 29th of January 2020.
6. Framing of notice & plea of defence: Notice u/s 251 Cr.P.C. was framed against the Accused on 24th of December 2020 to which he pleaded not guilty and claimed trial. The plea of defence of the Accused was recorded where the Accused had stated that he had met the Complainant only once. The cheque in question was admitted to have been signed by him but the other particulars were stated to have not been filled by him. Receipt of the legal demand notice was denied but the address appearing thereon was admitted to be correct. He also stated that he had taken an amount of ₹ 50,000 from the Complainant, again stated that he had taken ₹ 60,000. He further stated that he had to return the said amount of ₹ 60,000 in 10 monthly installments of ₹ 6000 each. He then stated that he had taken the aforesaid amount in cash in the year 2017 and he was late in payment of two installments for which the Complainant had troubled him. However, he stated that he had paid the said installments also in the year 2018. Lastly, it was stated that he had given the aforesaid cheque as blank signed cheque in the year 2017 at the time of taking the loan and as on date, he had no outstanding liability towards the Complainant.
7. Evidence of the Complainant: After the framing of notice, the Accused was granted permission to cross-examine the Complainant.
Page 4 of 25Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7879/19 CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 5 of 25 Thereafter, the Complainant was examined as CW1, adopting the pre-summoning evidence as post-summoning evidence and was cross examined and discharged 1st of April 2021. Thereafter, Complainant evidence was closed, and the matter was listed for statement of the Accused u/s 313 Cr.P.C. r/w Section 281 Cr.P.C.
8. Statement of the Accused: Statement of the Accused was recorded u/s 313 Cr.P.C. r/w Section 281 Cr.P.C on 20th of December 2021 wherein all the incriminating circumstances appearing in evidence against the Accused were put to him to which the Accused, in addition to reiterating the stance taken in the notice of accusation, admitted the receipt of the legal demand notice and denied taking any money from the Complainant herein. He stated that he had taken ₹ 50,000 from the son of the Complainant, i.e., Sh. Raman Aggarwal around 4 years back and he had returned the said amount to the son of the Complainant. He then stated that 2 cheques as well as one pro- note was given by the Accused as undated in blank signed to Sh. Raman Aggarwal, which have been subsequently used against the Accused. The Accused then stated that the Complainant has filed a false case against him and that another such case has been filed by the daughter-in-law (Sonia Khanna) of the Complainant. The Accused categorically denied having any liability towards the Complainant as on date.
9. Defence Evidence: The Accused has examined himself in his defence as DW-1. Thereafter, a separate statement of the Accused to that effect was recorded and defence evidence was closed. The Page 5 of 25 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7879/19 CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 6 of 25 matter was then fixed for final arguments.
10. Final Arguments: Final arguments were advanced by both sides. I have heard the submissions of the Ld. Counsel for the Complainant as well as the Accused. I have also perused the record.
Legal Position
11. For the application of s.138 of the Negotiable Instruments Act, 1881, the following legal requirements must be satisfied from the averments in the Complaint as well as the evidence of the Complainant: -
(a) That a person has drawn a cheque, 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 legally enforceable debt or other liability;
(b) That the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(c) That the cheque has been returned by the drawee bank unpaid, for the reason that 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 agreement made with that bank;
(d) That the payee or holder in due course has made a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid;
(e) That the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the Page 6 of 25 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7879/19 CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 7 of 25 said notice;
11.1. The aforesaid legal requirements are cumulative in nature, i.e. only when all of the aforementioned ingredients are duly proved is the drawer of the cheque deemed to have committed an offence under s. 138 of the Negotiable Instruments Act.
11.2. The provision of s.138 is buttressed by s.139 and s.118 of the Act.
s. 139 of the Act provides that the court shall presume, that the holder of a cheque received the cheque for the discharge, wholly or in part of any debt or other liability. s.118 of the Act provides inter alia that the court shall presume, until the contrary is proved, that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
11.3. What follows from the aforesaid is that the offence u/s 138 of the Negotiable Instruments Act operates on reverse onus of proof theory. The presumptions u/s 139 and s. 118 of the Act mandate the court to draw them, when a given set of facts are shown to exist. The same is evident by the peremptory language "Shall Presume"
used. However, the said presumptions are rebuttable in nature, i.e. it is open for the defence to disprove the same by establishing facts to the contrary.
11.4. In the case of Hiten P. Dalal v. Bratindranath Banerjee 1, the Hon'ble Supreme Court had occasion to examine the confines of the 1 (2001) 6 SCC 16 Page 7 of 25 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7879/19 CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 8 of 25 presumption u/s 139 of the Act, wherein it held as follows:
"22. Because both Sections 138 and 139 (..) "introduce an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the Accused."
(Ibid. at p. 65, para 14.) (...) 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 possibility of the non- existence of the presumed fact.
Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the "prudent man".
(...) in the case of a mandatory presumption, the burden resting on the Accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the Accused is reasonable and probable. It must further be shown that the explanation is a true one. ........ Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted". (emphasis supplied).
11.5. Also, in the case of Rangappa v. Sri Mohan 2, it was held that:
"(..)we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. (..)
28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and 2 (2010) 11 SCC 441 Page 8 of 25 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7879/19 CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 9 of 25 not a persuasive burden. Keeping this in view, it is a settled position that when an Accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities".
(...) As clarified in the citations, the Accused can rely on the materials submitted by the Complainant in order to raise such a defence and it is conceivable that in some cases the Accused may not need to adduce evidence of his/her own(...)"(emphasis supplied) 11.6. With regard to the factors taken into account for rebutting the presumption u/s 139 read with s.118 of the Act, the judgement of Hon'ble Delhi High Court in V.S. Yadav v. Reena 3 assumes importance, wherein it was held that:
"Mere pleading not guilty and stating that the cheques were issued as security, would not amount to rebutting the presumption raised under Section 139 of N.I. Act. (...) The Accused, by cogent evidence, has to prove the circumstance under which cheques were issued". (emphasis supplied) Appreciation of evidence
12. Now I shall proceed to deal with the legal ingredients one by one and give my finding on whether the evidence on record satisfies the legal ingredient in question or not.
(a) That a person has drawn a cheque, 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 legally enforceable debt or other liability 12.1.This condition pertains to the issuance of the cheque itself. It is 3 CRL. A. No. 1136 Of 2010 Page 9 of 25 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7879/19 CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 10 of 25 pertinent to note that the Accused, in his notice of accusation has admitted his signature on the cheque in question. Further, the cheque has been drawn on the account of the Accused. This leads to drawing of an inference u/s 139 read with s.118 of the Act, that the cheque was issued in discharge of a legally recoverable debt or other liability.
12.2.In the case of Bharat Barrel & Drum Mfg. Co. v. Amin Chand Pyarelal 4, it was held:
"12. (...) the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. (emphasis supplied)"
12.3. Also, in the case of Kumar Exports Vs. Sharma Carpets 5, it was held:
"When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party 4 (1999) 3 SCC 35 5 2009 (2) SCC 513 Page 10 of 25 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7879/19 CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 11 of 25 has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over.
The Accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. (...) To disprove the presumptions, the Accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the Accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the Complainant. The Accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The Accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the Complainant, that is, the averments in the Complaint, the case set out in the statutory notice and evidence adduced by the Complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the Complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the Complainant's rescue.
Page 11 of 25Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7879/19 CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 12 of 25 (emphasis supplied)"
12.4.The presumption, having been raised against the Accused, it falls upon the Accused to rebut it. The Accused has chosen to do so by cross-examining CW - 1 and also by appearing in his own defence as witness DW-1.
12.5.In sum, it is the defence of the Accused that the loan amount was only of ₹ 50,000 to ₹ 60,000 which was taken and subsequently repaid by the Accused. It is the case of the Accused that the cheque in question was issued as undated and blank signed cheque at the time of taking the loan and the same has been subsequently misused. It is pertinent to note that in the notice of accusation, the Accused states that the loan was taken from the Complainant whereas in the statement of Accused u/s 313 r/w 281 Cr.P.C. as well as his testimony as DW-1, he states that the loan was given by the son of the Complainant and it was also repaid to the son of the Complainant i.e., Sh. Raman Aggarwal.
12.6.The law regarding issuance and delivery of blank signed cheques is well settled. In the case of Bir Singh Vs. Mukesh Kumar 6, the Hon'ble Supreme Court observed and held:
"37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued 6 2019 (4) SCC 197 see also Kalamani Tex Vs. P. Balasubramanian, Crl.A. No. 123/2021 (SC) Page 12 of 25 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7879/19 CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 13 of 25 for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted."
38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the Accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence."
12.7.Hence, the Accused cannot avoid liability only on the aforesaid ground unless he is able to rebut the presumptions raised against him.
12.8.During the cross examination of CW - 1, the Accused has put certain very pertinent questions to the witness regarding her financial capacity to advance the loan to which CW - 1 has given vague and evasive replies.
12.9. Firstly, CW - 1 deposes that she is a housewife and has never been gainfully employed. She then states that she has a bank account in Punjab National Bank and she receives pension in the said account. She also states that she can bring the copy of her bank account statement to court but which is never brought forth by the said witness at any point in the trial. Secondly, she states that she did not keep any money in her house and that she had gone and fetched her money for the purposes of advancement of the Accused in cash. She expresses ignorance when she is pointedly asked about the identity Page 13 of 25 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7879/19 CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 14 of 25 of the source with which she used to keep her money.
12.10. At the stage of final arguments, the learned counsel for the Complainant submitted that even though CW - 1 has deposed that she has never been gainfully employed, her source of income is pension and as such it cannot be said that the admission of having never been gainfully employed would operate against CW - 1. The said contention is wholly without merit when it is considered that CW - 1 was specifically and very pointedly questioned in respect of her financial capacity and the source of funds whereby CW - 1 had due opportunity produce the necessary documents at that stage.
12.11. The question regarding being gainfully employed or not is consistent with the general line of questioning a witness in respect of her financial capacity. When no document/evidence was produced at that stage and in addition it was stated by CW - 1 that she did not keep money at her residence and that she had gone and fetched money, which was advanced in cash, it was quite incumbent upon CW - 1 to come clean and state as to how she has been able to advance a huge amount of ₹ 2.5 lakh to the Accused and that too at one go. CW - 1 was clearly and manifestly not able to do.
12.12. So far as the financial capacity and wherewithal (or lack thereof) is concerned, it is well settled in the case of Kulvinder Singh Vs. Kafeel Ahmad 7 as well as K. Prakashan Vs. P.K. Surenderan 8, 7 CR.L. L.P 478 of 2011 (DelHC) 8 2008 (1) SCC 258 Page 14 of 25 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7879/19 CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 15 of 25 as rightly relied upon by the Ld. Defence counsel that acquittal is proper on prosecution in Complaints u/s 138 of NI Act where Complainant is not able to show the source of friendly loan or solvency for the same. In other words, it was held that presumption of cheques gets dislodged where Complainant is not able to give source of the amount loaned to Accused. The said consequence applies clearly to the deposition of CW - 1 whereby her financial capacity and solvency to advance the loan amount is clouded in suspicion.
12.13. At the stage of final arguments, the Ld. Defence counsel has drawn the attention of the court to the fact that CW - 1 has deposed that a pro-note was handed over along with the cheque in question whereas there is no pro-note on record in the initial Complaint. He states that the act of the Complainant in not producing the pro-note that the initial stage and seeking leave to place it on record by way of an application filed on 4th of April 2022 is quite relevant to show that the Complainant has knowingly concealed relevant documents. Suffice it to say that the said application of the Complainant has been dismissed by this court by way of a reasoned order of even date and the plea cannot be countenanced at this stage nor can any adverse inference be drawn only on the basis of the result of the application.
12.14. The version of the Complainant is however, rendered very doubtful when the testimony of CW - 1 is seen vis-à-vis the Complaint as well as the evidence affidavit.
Page 15 of 25Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7879/19 CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 16 of 25 12.15. Firstly, CW - 1 has deposed that the Accused did not tell her the purpose of taking the loan whereas in the Complaint, it has been averred that the loan was taken the purposes of construction of mobile towers for JIO company in Himachal Pradesh. Secondly, CW - 1 has deposed that there was no time fixed for the payment of the said loan whereas in the Complaint, it has been categorically averred that the loan tenure was of one year. While on the one hand, CW - 1 states 9 that the cheque in question along with a pro-note was handed over by the Accused at the time of advancement of the loan but when confronted with the cheque in question at the time of cross-examination, CW - 1 is not able to depose as to whether the cheque in question i.e., Ex. CW1/1 present on record was given to her by the Accused at the time of advancement of the loan or not. CW - 1 takes the plea that some document was handed over to her in folded condition and she cannot depose on account of the fact that she had undergone eye surgery at the time.
12.16. The Ld. Counsel for the Complainant has attempted to ameliorate the glaring loopholes in the testimony of CW - 1, as adverted to hereinabove by stating that CW -1 is by her own admission a senior citizen aged about 76 years and is forgetful and not aware of the legal consequences attaching to her answers. While it is true that the court must keep in mind a number of factors including inter alia, the age of the witness, the social/economic/educational background, the lapse of time between the date of the incident and the date of the 9 In the Complaint, evidence affidavit as well as in the initial part of her testimony Page 16 of 25 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7879/19 CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 17 of 25 testimony so far as they are borne from the record at the time of deciding the weightage given to the testimony of the said witness, there is a golden thread which weaves itself in the testimony of any witness and it is that golden thread which is required to be discovered by the court to decide whether the testimony of a witness is reliable or not. That golden thread is that the witness should be able to depose clearly and unequivocally in respect of the material aspects of the case and any minor or incidental inconsistencies may be disregarded.
12.17. In the instant case the only witness in support of the case of the Complainant is the Complainant herself who has appeared as CW
- 1. In this backdrop, it was incumbent upon the said witness to know and to be able to depose clearly in respect of the material aspects of her own case, leaving aside some leeway for minor inconsistencies.
12.18. The discussion in the preceding paragraphs will show that CW-1 is barely even aware of the most basic facts of the instant case. She does not even know the purpose of advancing the loan, the tenure of the loan and the date of its maturity. CW-1 cannot even depose as to whether the document allegedly handed over to her is the cheque in question or not! This is when she is under cross- examination after a period of less than three years from the date of the happening of the alleged events. Human memory is by its nature, fallible but it cannot be said that due to the said reason the recollection itself would change quite dramatically as it has been in Page 17 of 25 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7879/19 CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 18 of 25 the instant case. Needless to say, the said statements are totally contradictory to the stance taken in the Complaint and evidence affidavit which raise quite a lot of suspicion as to how and in what manner the Complainant come into the possession of the cheque in question. Ignorantia juris non excusat 10 and the legal consequences shall attach to the testimony of a witness without having regard to any of the factors highlighted by the learned counsel for the Complainant. Merely because a witness is advanced in age, it cannot be said that her testimony is to be regarded as gospel truth irrespective of the fact that it is contradictory, vague and evasive in respect of material particulars of her own case. Such misplaced sympathy is not contemplated by law.
12.19. The Ld. Counsel for the Complainant has stated at the close of final arguments that the Accused has taken and inconsistent stance at different points in the trial. While at the stage of framing of notice, the Accused has denied receipt of legal demand notice but admitted taking the loan from the Complainant, at all subsequent stages, the Accused has stated that he had taken a loan from the son of the Complainant and that he had received the legal demand notice. It is also stated that the application u/s 315 Cr.P.C. also has certain contrary averments and improvements which is relevant as conduct 11. He also states that the Accused has, when appearing as DW-1, admitted made any Complaint to the authorities had issued 10 Ignorance of law is no excuse 11 u/s 8 of the Indian Evidence Act, 1872 Page 18 of 25 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7879/19 CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 19 of 25 any stop payment instructions to his bank and it is apparent from the record that the Accused has not even cared to reply to the legal demand notice. By placing reliance on the aforesaid and also upon a photocopy of the written statement allegedly filed by the Accused 12 in another case, it is submitted that the defence of the Accused is inconsistent and cannot be relied upon. It is stated that adverse inference is required to be drawn against the Accused 13 on that score.
12.20. To examine the aforesaid contentions in the right perspective, it must first be realised that the burden to establish all the ingredients of the offence and that too beyond reasonable doubt lies upon the Complainant and never shifts. Though the case of the Complainant is initially aided by the presumptions existing in his favour, ultimately the case of the Complainant must stand on its own legs. The Complainant cannot call to his aid and assistance, any inconsistencies, irregularities or infirmities in the defence to support his own case.
12.21. Further, the standard of proof upon an Accused to prove his defence is not as heavy as that on the Complainant. The Accused is not necessarily required to adduce any oral/documentary evidence in his defence. The Accused can very well rely upon the material placed on record by the Complainant or on the cross examination of 12 In a CSSCJ No. 148/2021 between the same parties; photocopy furnished at the stage of final arguments.
13u/s 114 of the Indian Evidence Act, 1872 Page 19 of 25 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7879/19 CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 20 of 25 the Complainant witnesses to probabilize his defence. It is not necessary for the Accused to establish each and every line of his defence to the hilt. It is sufficient if the Accused establishes any of his pleas of defence on a preponderance of probabilities.
12.22. Further, unlike in a civil case, the Accused in a criminal case can take various pleas of defence to rebut the case of the Complainant and it is not a prerequisite that the said pleas be wholly consistent to each other. For e.g. The Accused in a murder case can take up the plea of alibi without being barred to take up the plea of private defence once his presence is proved at the spot. The rule of inconsistent pleadings is alien to criminal law and the inconsistency cannot be taken into account for the aforesaid reasons.
12.23. In the instant case, the Accused has cast sufficient doubt upon the financial capacity, awareness of material aspects of the case including the coming into possession of the cheque in question. The Accused has also brought forth the material inconsistencies and contradictions in the testimony of CW-1. The aforesaid factors alone would have been enough to hold that the presumption raised against the Accused stands rebutted. However, the Accused has gone a step further and backed his plea by deposing in support of it as DW-1. His testimony has duly stood the test of cross- examination and has gone mostly unrebutted, tilting the case strongly in his favour.
12.24. No weightage can be given to an unauthenticated photocopy of any Page 20 of 25 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7879/19 CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 21 of 25 alleged written statement filed by the Accused in a connected civil case considering the fact that the two proceedings are fundamentally different in nature and such document was neither filed at an appropriate stage nor proved according to rules of evidence.
12.25. Even if an adverse inference 14 is drawn against the Accused on the basis of certain parameters including not stopping payment of the cheque in question, not filing any Complaint, not replying to the legal demand notice, the fact remains that the same is an inference and not evidence. An adverse inference cannot operate to tilt the scales in favour of the Complainant when the Accused has, from the materials already on record and by way of leading independent evidence, established his defence and has been able to show that the case of the Complainant is improbable, when looked at from the standard of a reasonable man.
12.26. The upshot of the above is that the presumption raised against the Accused stands rebutted. Consequently, the onus of proof falls back upon the Complainant to establish that the cheque in question was issued in discharge of a legally enforceable debt or other liability. Considering the materials on record, the Complainant has miserably failed to discharge the said onus and the instant ingredient remains unfulfilled as against the Accused.
(b) That the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the 14 u/s 114 of the Indian Evidence Act, 1872 Page 21 of 25 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7879/19 CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 22 of 25 period of its validity, whichever is earlier;
12.27. This requirement is satisfied on a perusal of the cheque in question Ex. CW1/1 which bears date of 25th of May 2019 and the return memo Ex. CW1/2 which bears the date of 28th of June 2019. The defence has led no evidence to controvert the same and hence, this ingredient stands fulfilled as against the Accused.
(c) That the cheque has been returned by the drawee bank unpaid, for the reason that 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 agreement made with that bank 12.28. s. 146 of the Negotiable Instruments Act, 1881 provides that the court shall, on production of bank's slip or memo having therein the official mark denoting that the cheque has been dishonored, presume the fact of dishonour of such cheque, unless and until such fact is disproved. The bank return memo Ex. CW1/2 on record states that the cheque in question has been returned dishonoured for the reason "Funds Insufficient". The defence has led no evidence to controvert the same and hence, this ingredient is also fulfilled as against the Accused.
(d) That the payee or holder in due course has made a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid 12.29. As regards the service of legal demand notice, the Complainant has sent the same, Ex. CW1/3 to the Accused. The original postal receipts in respect of the same are already on record as Ex. CW1/3 Page 22 of 25 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7879/19 CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 23 of 25 (Colly). However, the Accused has denied receiving any legal demand notice in his notice of accusation. But, in his examination u/s 313 read with s.281 Cr.P.C., the Accused has admitted receipt of legal demand notice. The Accused has admitted that the address appearing on the legal demand notice is his correct address.
12.30. Perusal of the record reveals that the address mentioned in the legal demand notice is identical to the address informed by the Accused in his examination u/s 313 read with s.281 of the Cr.P.C and the very same address appears on the notice of accusation and bail bonds as well.
12.31. section 27 of the General Clauses Act provides that service of any document sent by post, shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document unless the contrary is proved. A like presumption is also carved out under section 114 Indian Evidence Act, 1872 which when applied to communications sent by post, enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. A bare denial by the Accused in his notice of accusation would not assume the character of defence evidence, as held in V.S. Yadav v. Reena 15. Hence, the Accused has not been able to rebut the presumption of service of legal demand notice. Even otherwise, at the stage of examination of the 15 supra Page 23 of 25 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7879/19 CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 24 of 25 Accused u/s 313 r/w s.281 Cr.P.C as well as when appearing as DW-1, the Accused has admitted receipt of the legal demand notice. Resultantly, the benefit of the presumption accrues in the favour of the Complainant and this ingredient is fulfilled as against the Accused.
(e) That the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice 12.32. In the instant case, the Accused has denied receiving legal demand notice, in the notice of accusation u/s 251 Cr.P.C. but admitted the same in the statement of the Accused u/s 313 read with s.281 Cr.P.C. as well as when appearing as DW-1.
12.33. In C.C.Alavi Haji vs Palapetty Muhammad 16 it was held by the Hon'ble Supreme Court:
"17. 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 (by receiving a copy of Complaint with the summons) and, therefore, the Complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the Complaint under Section 138 of the 16 (2007) 6 SCC 555 Page 24 of 25 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7879/19 CNR. DLCT020185422019 Rama Rani Aggarwal V/s Ajay Rawal Page 25 of 25 Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation."
12.34.Hence, regardless of the said averment in respect of non-receipt of legal notice, it was open to the Accused to make the payment due under the cheque within 15 days of service of summons of the instant case. However, the Accused has failed so to do, on the ground that he does not owe any liability towards the Complainant. Hence, this ingredient stands fulfilled as against the Accused.
Decision
13. As all the ingredients of the offence are not cumulatively satisfied against the Accused, the Accused Ajay Rawal is hereby Acquitted of the offence u/s 138 of the Negotiable Instruments Act, 1881.
VISVESH Digitally signed by VISVESH
Date: 2022.05.23 16:02:07 +05'30'
ANNOUNCED IN OPEN (VISVESH)
COURT ON 23.05.2022 MM, NI ACT-06, CENTRAL
TIS HAZARI COURTS,
DELHI
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