Delhi District Court
Whether The Complainant Is Successful ... vs Mahendra Pal 2016 Scc on 29 July, 2021
DLST020107382016
Presented on : 19.11.2016
Registered on : 19.11.2016
Decided on : 29.07.2021
Decision : Convicted
IN THE COURT OF
METROPOLITAN MAGISTRATE NI ACT- 03
AT SOUTH DISTRICT, SAKET COURTS, NEW DELHI
(PRESIDED OVER BY MS. NEHA BARUPAL)
CT Cases/475256/2016
CNR NO. DLST02-010738-2016
SAROJ
Wife of Mr.Vijay Pal Singh
R/o F-42, Katwaria Sarai,
New Delhi
..............Complainant
VERSUS
KUMKUM SAREEN
Wife of Mr.Vinay Sareen
R/o 479, 2nd Floor, Double Storey,
New Rajinder Nagar, New Delhi .............. Accused
Offence punishable under : 138 of Negotiable Instruments Act,
1881
Digitally signed
NEHA by NEHA
BARUPAL
BARUPAL Date: 2021.07.29
15:21:03 +05'30'
CT Cases 475256/2016
SAROJ V. KUMKUM SAREEN Page No. 1/30
JUDGMENT
FACTUAL MATRIX
1. The instant proceedings have originated out of a complaint preferred by Ms.Saroj (housewife) against Ms.Kumkum Sareen (advocate) regarding dishonour of a cheque purported to have been given against a friendly loan. Briefly stated, the case of the complainant as per the complaint is that the complainant and the accused were known each other for last many years and also had cordial relations between them as their children were studying in the same school. It was later revealed in the cross-examination of the complainant that it was the nephew of the accused who studied in the same school as the child of the complainant. That in the month of June 2014, the accused approached the complainant for financial help of Rs.5 lakhs for 5-6 months only and on 15.06.2014, the complainant gave a loan of Rs.5 lakhs to the accused due to her cordial relation with her. That in view of the aforesaid liability, the accused had issued a post dated cheque bearing number 790541 dated 03.12.2014 for a sum of Rs.5,00,000/- drawn on Punjab National Bank, New Rajinder Nagar, New Delhi towards discharge of the abovesaid liability (hereinafter referred to as the 'cheque in question').
2. Thereafter, the complainant presented the said cheque for encashment and the same were returned unpaid upon presentation NEHA Digitally signed by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:21:32 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 2/30 for the reason "payment stopped by drawer" vide return memo dated 06.12.2014. That a legal notice dated 17.12.2014 was duly sent by the complainant to the accused in this regard, but to no avail. That the accused failed to pay the cheque amount within the prescribed period. Hence, the present complaint under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act") was filed.
APPEARANCE OF ACCUSED AND TRIAL
3. On finding a prima facie case against the accused, she was summoned to face trial vide order dated 20.05.2015. After bailable warrants were returned unexecuted, the accused appeared in court on 30.07.2016 and was admitted to bail on the same date. Notice of accusation under Section 251, Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") was served upon the accused, to which she pleaded not guilty and claimed trial and her plea of defence was recorded. She stated that she had never taken any loan from the complainant and she had never issued any cheque in lieu thereof. The accused further stated that the cheque in question was misplaced and the same was being notified to the bankers. She then stated that the cheque in question does not bear her signature and that she did not receive any legal notice from the complainant. She finally stated that she had given notice to the bank for stopping payment in the month NEHA Digitally signed by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:21:41 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 3/30 of August 2014 and the cheque in question was presented in the bank in the month of December 2014.
4. The accused was thereafter allowed to cross examine the complainant as per section 145(2) NI Act. After closing of complainant evidence, statement of the accused under Section 313 Cr.P.C. was recorded wherein all the incriminating evidence were put to the accused. The accused reiterated her defence regarding misplacing of the cheque and misuse thereof. She further stated that she has been falsely accused in this case by the complainant.
5. Matter was thereafter fixed for defence evidence. Defence evidence was closed on 16.03.2019 and the matter was fixed for final arguments. Final arguments were heard on behalf of both parties via video conferencing and written submissions were also submitted from both sides. I have given my thoughtful consideration to the oral and written submissions of the ld. counsels from both sides and have also perused the record.
EVIDENCE ON BEHALF OF THE COMPLAINANT:
6. In order to support his case, the complainant examined four witnesses including herself.
7. CW-1 (complainant himself) tendered her affidavit Ex.CW1/1 NEHA Digitally signed by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:21:56 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 4/30 into evidence wherein averments made in the complaint were reiterated. She also relied upon various documents such as Ex.CW1/A which is copy of her Bank Passbook; Ex.CW1/B which is cheque in question dated 03.12.2014; Ex.CW/C which is return memo dated 06.12.2014; Ex.CW1/D which is the legal notice dated 17.12.2014; Ex.CW1/E & Ex.CW1/F which are postal receipt and tracking report; Ex.CW1/G (Colly) which are ITRs for assessment year 2015-16, 2016-17 and 2017-18. Ex. CW1/H(colly) is reply from SSPO, New Delhi regarding delivery of legal demand notice in response to RTI application filed by the complainant. CW-1 was duly cross-examined by the ld. counsel for the accused on two occasions.
8. CW-2, Mr.Devender Gautam (from MTNL) brought the CDRs of phone number 26853998 (allegedly installed at the complainant's residence) for the period 01.01.2014 to 31.12.2014 which are Ex.CW2/A (colly).
9. CW-3, Mr.Israr Babu (from Vodaphone) had tendered the document which are Ex.CW3/A and Ex.CW3/B (colly) (OSR).
10.CW-4, Mr.Ajay Kumar (from Bharti Airtel) had tendered the certified copy of customer application form of mobile number 9871107742 which is Ex.CW4/A (colly).
NEHA Digitally signed by
NEHA BARUPAL
BARUPAL Date: 2021.07.29
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EVIDENCE ON BEHALF OF THE ACCUSED:
11.The accused chose to lead defence evidence and examined three defence witnesses to support her case, including herself.
12.DW-1, Mr.Sanjay Bora tendered the weeded out record pertaining to a registered post article which is Ex.DW1/A (colly).
13.DW-2 Mr.Vinod Kumar, record keeper at Punjab National Bank (bank of the accused) tendered the certified copy of account opening form of the accused which is Ex.DW2/A (colly) and copy of letter certifying that payment of cheque in question was stopped as per stop payment instructions of the accused (Mark DW2/B).
14.DW-3 the accused herself entered the witness box and deposed that she never took any loan from any person including the complainant and she never issued any cheque in question to the complainant. DW-3 further deposed that she does not know the complainant altogether and she never met with the complainant before the filing of the present complaint. She further stated that the cheque in question does not bear her signature and was not filled up by her. DW-3 was extensively cross-examined by the ld. counsel for the complainant.
Digitally signed NEHA by NEHA
BARUPAL
BARUPAL Date: 2021.07.29
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ARGUMENTS:
15.Ld. Counsel for the complainant, Mr. Anand V. Khatri, has argued that all the ingredients of Section 138 NI Act have been fulfilled in the present case and the complainant has duly proved her case. Hence, the accused is liable to be convicted. It is stated that in the offence under section 138 NI Act, the complainant is only supposed to prove the issuance of cheque by the accused and that the statement of the complainant that cheque was issued against liability or debt is sufficient proof, after which the onus shifts to the accused to show that the cheque was not issued for debt or liability. He has argued that the accused has failed to rebut the presumptions drawn against her. It is submitted that the accused has taken all the defences available in law but has brought in no evidence to prove any of them. Specific contentions raised are summarized below:
a) The loan amount of Rs. 5 lakh given to the accused was withdrawn from SB account of the complainant which can be seen from the copy of passbook placed on record.
b) The complainant and accused are known to each other. The accused has denied this fact however CDRs, the admissions of the accused in her cross-examination regarding the address of her parental house and name of her nephew coupled with the document placed on record by the complainant showing the school of the said nephew show that the complainant and NEHA Digitally signed by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:22:22 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 7/30 accused were on talking terms.
c) The accused has admittedly not filed any complaint regarding theft or misplacement or misuse of the cheque in question.
d) The accused has alleged that the cheque in question is forged but has not placed any proof to substantiate her claim. Further, the reason for dishonour of the cheque is "payment stopped by drawer" and not "signature differs". Thus, the accused must prove her claim.
e) Accused has taken contradicting stands in as much as she has suggested that the cheque in question was stolen from her residence by the complainant in one breath but has also said that the same was misplaced and misused in another breath.
f) Ld. counsel for the complainant has relied upon Kumar Exports v. Sharma Carpets (2009) 2 SCC 513 and Jaiprakash Singh v. Rashmi Aggarwal (CRL.REV.P. 749/2010 decided on 11.07.2013) on the point of rebutting of statutory presumptions. The judgment of V.S. Yadav v. Reena (172 (2010) DLT 561) has been cited to highlight that statement of accused under section 281 Cr.P.C. or under 313 Cr.P.C. is not evidence of the accused and cannot be read as evidence.
g) The accused kept changing her phone numbers every 2-3 years, did not remember her numbers, frequently changed her addresses and did not even remember the mobile number of her son who stood as her surety which all indicates that the complainant was trying to recover her money and that is the NEHA Digitally signed by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:22:34 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 8/30 reason for non-disclosure of phone numbers used by the accused.
16.Per contra, ld. counsel for the accused, Mr. Raman Rishi Bhardwaj, has argued that the accused never received the legal demand notice. He has submitted that the complainant has not proved her case as the cheque in question has not been proved to be issued by the accused. Reliance was placed upon Alka Khandu Avhad v. Amar Syamprasad Mishra & Anr. (Criminal Appeal No. 258 OF 2021 in the Hon'ble Supreme Court of India) to stress that the first ingredient of the offence (drawing of cheque) was not proved. It was further contended that there are contradictions in the case of the complainant as can be seen from a comparison of the legal demand notice and the complaint. In the former it is stated that cheque was issued after repeated requests while in the latter it is stated that the accused issued a post-dated cheque. Other contentions of the accused are summarized as below:
(a) It is contended that if the cheque was given on repeated demands, then how is it possible that the cheque in question was issued on 03.12.2014 despite stop instruction already having been given in August.
(b) There is no document or receipt of any kind to prove the alleged loan. No income tax return for the year has been filed to show the alleged loan. Reliance has been placed on G. Pankjakshi Amma & Ors. v. Mathai Mathew Through LRs NEHA Digitally signed by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:22:44 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 9/30 (2004) 12 SCC 83).
(c) The complainant does not have financial capacity to advance such a huge loan. Basalingappa v. Mudibasappa (2019) 5 SCC 418 has been relied on to buttress this argument.
(d) The cash transaction being above Rs. 20,000/- is an illegal transaction in light of section 269SS of the Income Tax Act 1961 and therefore not legally recoverable debt.
(e) There is no document to show that the number from which the complainant had been talking to the accused belongs to the complainant.
(f) Accused has summoned bank record showing her specimen signature and that the signatures do not match with that on the cheque in question. Complainant should have filed an application under section 311A, Cr.P.C. for obtaining signature of accused for comparison.
(g) Complainant did not produce her husband as a witness even though he is an alleged witness to the loan transaction.
(h) It is admitted case of the complainant that she received the cheque with signature and rest of it was filled in by her husband which means the cheque has been tampered with constituting a material alteration under section 87, NI Act.
(i) The cheque in question was misplaced by the accused and obtained by complainant by unlawful means and the same is hit by section 58, NI Act.Digitally signed
NEHA by NEHA
BARUPAL
BARUPAL Date: 2021.07.29
15:22:53 +05'30'
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POINTS OF DETERMINATION:
17.While various questions arise in the present factual matrix, they can be discussed under the following major points of determination:
1. Whether the complainant is successful in raising the presumptions under Section 118 read with Section 139 of NI Act?
2. If yes, whether the accused has been successful in raising a probable defence?
THE LAW APPLICABLE:
18.Before appreciation of evidence led on behalf of the parties, at the very outset, I would like to narrate the legal principles, relevant for adjudication of complaint under Section 138 of NI Act.
Perusal of the bare provision reveals the following necessary ingredients of the offence:-
First Ingredient: The cheque was drawn by a person on an account maintained by him for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity; Second Ingredient: The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability; Third Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank; Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a NEHA Digitally signed by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:23:04 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 11/30 notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank;
Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
19.The Hon'ble Supreme Court of India in Basalingappa v.
Mudibasappa, (2019) 5 SCC 418 held as follows:
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
20.The three-judge bench of the Hon'ble Supreme Court in Rangappa v. S. Mohan, (2010) 11 SCC 441 has ruled that existence of liability itself is a presumption of law. It held as under:
"26. In light of these extracts, 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."
21.It was observed by a 3-judge bench of the Hon'ble Supreme NEHA Digitally signed by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:23:16 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 12/30 Court in M/S Kalamani Tex v. P. Balasubramanian (2021 SCC OnLine SC 75) that "14. ...The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative."
22.The Hon'ble Supreme Court of India in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555 : (2007) 3 SCC (Cri) 236 at page 565 held that :
"A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act."
APPRECIATION OF EVIDENCE AND BRIEF REASONS:
A. POINT OF DETERMINATION NO.1:
23.There is no dispute as regards the limitation or taking of steps as per periods prescribed in section 138 NI Act. The original cheque dated 03.12.2014 has been proved by the complainant vide Ex.CW1/B. Although the signature on the same has been denied by the accused, the cheque itself has not been denied at any stage. CW1 has proved the issuance of the cheque through her affidavit in evidence Ex. CW1/1 and was duly tested via cross-examination and she denied all contrary suggestions. It is the case of the complainant that the cheque in question was given by the accused in lieu of friendly loan of Rs. 5 lakh advanced to NEHA Digitally signed by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:23:32 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 13/30 her by the complainant on 15.06.2014 on account of the relationship between them. She has specifically stated during cross-examination that the cheque was signed by the accused in front of her and given to her at Café Coffee Day, Shankar Road and that rest of the particulars were filled by her husband thereafter. Nothing to dispute the issuance of the cheque has been revealed from the cross-examination. The returning memo dated 06.12.2014 Ex. CW1/C is not denied. The accused has denied receiving the legal demand notice dated 17.12.2014 which is proved vide Ex.CW1/D and Ex.CW1/E & Ex.CW1/F which are postal receipt and tracking report. Perusal of the address mentioned on the demand notice, postal receipts and perusal of the cross-examination of the accused reveals that the address is the same as the one she admitted to have been residing at between December 2013 to December 2015. The postal receipt and tracking report show that the article was delivered on 18.12.2014.
Therefore, the complainant has fulfilled this requirement as well. Thus, the presumption under Section 27 of General Clauses Act can be raised that the legal notice was received by the accused person in view of the law laid down by the Hon'ble Supreme Court in C.C. Alavi (supra). Even otherwise, since payment was not made within 15 days of receipt of the summons from the court, this contention of the accused cannot be accepted. There is no dispute as to non-payment of cheque amount within 15 days from receiving of demand notice.
Digitally signed NEHA by NEHA
BARUPAL
BARUPAL Date: 2021.07.29
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24.Reliance may also be placed herein on M. Abbas Haji v T.N. Channakeshava (2019) 9 SCC 606 where the Hon'ble Supreme Court upheld the finding of conviction given by the Hon'ble High Court of Karnataka (upsetting the finding of acquittal given by the trial court) in an identical factual matrix of friendly loan where the cheque had been dishonoured for the reason "signature differs" and signature on the cheque had been denied by the accused. It is apparent from the observations of the Hon'ble High Court in paragraph 6 of the judgment1 that the initial presumption was in favour of the complainant.
25.In view of the abovementioned circumstances, the presumptions under section 139 and 118 NI Act can be raised that the cheque in question was for a legally recoverable debt and for a valid consideration.
26.Thus, point of determination no.1 is decided in affirmative.
B. POINT OF DETERMINATION NO.2:
27.Since the statutory presumptions under section 118 and 139 NI Act stand activated, the onus to rebut the same is upon the accused and the standard of proof for the same is preponderance of probabilities.
1 2008 SCC OnLine 829 NEHA Digitally signed by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:23:54 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 15/30
Blank cheque misplaced/stolen and misused
28. (i) It is a defence of the accused that her cheque had been misplaced and misused. This is reiterated in plea of defence, statement under section 313 Cr.P.C. as well as her testimony in the witness box. It is her case that the first time she realized that the cheque in question had been misplaced was on 23.08.2014. However, she has not been able to justify how the cheque landed in the hands of the complainant. Copy of the letter showing 'stop payment' instruction does not indicate the reason for the same. Admittedly she never lodged any police complaint with respect to this. Thus, no complaint was filed after losing the cheque as also after its alleged misuse. It is inconceivable that an educated person did not lodge a complaint regarding a missing cheque which has been misused. How is it that one leaf out of a booklet was lost and came into the hands of the complainant? No circumstances surrounding this missing cheque have been shown by the accused. Mere assertions by the accused without something probable being brought on record is not sufficient to rebut the statutory presumptions.
(ii) The complainant in her cross examination stated that she used to visit the house of the accused as well as her mother followed by denial of a suggestion that the complainant did not know the exact address/floor of the residence of mother of the accused Digitally signed NEHA by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:24:05 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 16/30 because she never visited the same. It is also the case of the accused that they do not know each other. However, another suggestion was made to the complainant that the cheque was stolen by her from the residence of the accused which was denied by the complainant. For the complainant to steal the cheque from her residence, the complainant would have to know the address of the accused which contradicts the stand of them being strangers. Also, not lodging of complaint regarding a stolen cheque is all the more implausible. It has been held by the Hon'ble Supreme Court in M. Abbas Haji (supra) as follows:
"6. As far as the present case is concerned, in addition to three reasons, given by the High Court, we are of the view that the original appellant has not even explained how the leaves of the cheque entered into the hands of the complainant. It is urged that in crossexamination of the complainant some suggestions were made that since the complainant was visiting the office of the original appellant, he had access to the same. The complainant had only admitted that he visited the office of the original appellant but he denied all the other suggestions. Thereafter, it was for the original appellant to prove his part of the case. The High Court, in our opinion, was right in holding the original appellant guilty under Section 138 of the Act."
The accused has miserably failed in explaining how the cheque in question came to be in the hands of the complainant in the present case. Similarly, no explanation has been given as to why the complainant would file a false case against the accused, especially in light of the statement of the accused that she does not even know the complainant.
NEHA Digitally by NEHA signed BARUPA BARUPAL Date: 2021.07.29 L 15:24:17 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 17/30 Relationship between the parties
29. (i) It is the stance of the accused that she had never met the complainant till the filing of this complaint while the complainant has said that they are known to each other since last so many years (7-8 years as per cross-examination). Other than her testimony, the complainant attempted to prove the relationship between the parties by proving CDRs. Suggestions were denied by the accused during cross-examination that the complainant and accused used to talk frequently and that the complainant used to ask for return of money from landline number 011-26853998. The complainant summoned witness for furnishing call record of this landline number which is Ex. CW2/A. At points marked 'A' on the same, mobile number 9871107742 is seen. During cross examination, the accused stated that she did not remember whether this number belonged to her or her family members. This number later came to be proved vide Ex. CW4/A (colly) as belonging to one Yogesh Sareen who is admittedly the son of the accused. The accused has contended that the same cannot be accepted in the absence of documents proving that the landline number belongs to the complainant. It is correct that no such document has been placed on record and only a reference to this landline number has been made in the form of a suggestion put to the accused during cross-examination. Therefore, it cannot be said conclusively that the link has been established through Digitally signed CDRs. NEHA by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:24:31 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 18/30 Ld. counsel for the complainant has also submitted that the accused kept changing her phone numbers every 2-3 years, did not remember her numbers, frequently changed her addresses and did not even remember the mobile number of her son who stood as her surety which all indicates that the complainant was trying to recover her money and that is the reason for non-disclosure of phone numbers used by the accused. Ld. counsel for the accused has stated that one can keep numbers and change numbers and this does not point to anything. This court is also in agreement with the accused on this point and as such this contention of the complainant is somewhat far-fetched.
(ii) However, the link between the parties is ostensibly the child of the complainant and nephew of the accused (namely Anmol) who both allegedly attend the same school (in Vasant Vihar). As rightly pointed out by the counsel for the accused, in the complaint it is stated that they know each other as their children go to the same school whereas the child of the complainant does not go to that school. However, it was clarified during cross- examination that it is in fact the nephew of the accused (complainant specifically stated "Anmol is the child of real brother of the accused whose name I do not know"). It was further clarified by the complainant that in local dialect children of brothers and sisters are also called own children. I find this to be a minor discrepancy and not one that would affect the underlying purpose of showing a connecting link. The accused NEHA Digitally signed by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:24:43 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 19/30 has admitted that Anmol is the son of her brother but denied that he studied in the Vasant Vihar branch of the school mentioned. She was then confronted with memorabilia 2009-10 of the said school Ex. DW3/C1 (colly)(OSR) to which she stated that at page no. 59, the details of the student are of her nephew Anmol. She tried to recover by saying that to the best of her knowledge, he studies at India Gate branch of the said school. Moreover, the address of the nephew appearing on the same page is that admitted by the accused in her cross-examination to be her parental house. The same address is mentioned on the copy of her Bar ID card furnished with the bail bonds. Thus, this establishes a link between the parties and the fact of blatant denial of the same forces this court to draw adverse inference against the accused that she issued the cheque in question for repayment of the money borrowed by her.
No proof of loan advanced
30. (i) It is contended on behalf of the accused that no document or receipt of any kind to prove the alleged loan has been placed on record. No income tax return for the year has been filed to show the alleged loan. Reliance has been placed on G. Pankajakshiamma & Ors. v. Mathai Mathew Through LRs (Civil Appeal No.s 4101-02 of 1998 decided on 31.03.2004). This argument is unsustainable since there is no law that a loan agreement must be in writing. Oral agreement followed by Digitally signed NEHA by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:24:55 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 20/30 unrebutted testimony of the complainant is sufficient proof. The reliance on the judgment cited is misplaced as that deals with illegal transaction in the context of money lending business.
(ii) As regards the contention that the Complainant did not produce her husband as a witness even though he is an alleged witness to the loan transaction is concerned, this has some weightage in the opinion of this court. The examination of the husband would have fortified her testimony of the complainant, however, even in the absence thereof, nothing has come on record to disprove the testimony of the complainant.
(iii) Reliance by the ld. counsel of the accused placed on Anss Rajashekhar v. Augustus Jeba Ananth (18.01.2019)(SC) and Ing Vijaya Bank Ltd. and Ors. v. State of Rajasthan and Ors. (Feb 12, 2015)(SC) to show that no legally enforceable debt existed will not help the accused as the facts in the present case are distinguishable.
Contradictions in the complainant's case
31. It was stressed by the ld. counsel for the accused that that there are contradictions in the case of the complainant as can be seen from comparison of paragraph 3 of the legal demand notice and paragraph 2 of the complaint. In the former it is stated that cheque was issued after repeated requests while in the latter it is stated by the complainant that the accused issued a post-dated cheque at the time of advancement of loan. It is further contended NEHA Digitally signed by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:25:08 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 21/30 that if the cheque was given on repeated demands of the complainant, then how is it possible that the cheque in question was issued on 03.12.2014 despite stop payment instruction already having been given in August. A perusal of the abovementioned does disclose the said discrepancy. In fact, the complainant was confronted with the same during cross- examination conducted on 29.05.2018, however a bare reading of the same also reveals that the witness stated that "the cheque was given by the accused at the time of availing the loan." I have gone through the cross examination of complainant and I do not find any material reason to disbelieve the testimony of complainant. Thus, inconsistency in the legal demand notice was explained when the complainant withstood the test of cross-examination by reiterating her stand taken in the complaint. The fact of husband of the complainant accompanying her during the transaction not having been specifically mentioned in the complaint does not bear much significance.
Signature on the cheque not admitted/proved
32.(i) From discussion in point of determination no. 1 above, it is established that the complainant had proved the issuance of the cheque in question through her testimony. The onus to rebut the presumption was shifted upon the accused and it is well-settled that mere denial by the accused does not rebut the presumption.
(ii) Ld. Counsel for the complainant has rightly contended that the Digitally signed NEHA by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:25:21 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 22/30 accused has alleged that the cheque in question is forged but has not placed any proof to substantiate this claim. Further, the reason for dishonour of the cheque is "payment stopped by drawer" and not "signature differs". Thus, the accused must disprove the signature.
It has been observed in paragraph 19 of M.M.T.C. Ltd. and Anr. v. Medchl Chemicals & Pharma (P) Ltd., (2002) 1 SCC 234 referring to Modi Cements Ltd. v. Kuchil Kumar Nandi reported in (1998) 3 SCC249 as below:
"... It has been held that even though the cheque is dishonoured by reason of 'stop payment' instruction an offence under Section 138 could still be made out. It is held that the presumption under Section 139 is attracted in such a case also. The authority shows that even when the cheque is dishonoured by reason of stop payment instruction, by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the `stop payment' instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. ..."
(iii) Ld. counsel for the accused has argued that the accused has summoned bank record showing her specimen signature and that the signatures do not match with that on the cheque in question as can be seen by the court using power provided under section 73, Indian Evidence Act, 1872. He further submitted that the complainant should have filed an application under section 311A, Digitally signed NEHA by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:25:34 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 23/30 Cr.P.C. for obtaining signature of accused for comparison and proved the same.
(iv) It is pertinent to note here that the accused had summoned the concerned Bank Manager with her account opening form and specimen signatures however, only the record keeper's (DW2) presence had been secured who brought certified copy of the same Ex. DW2/A(colly). This witness was cross-examined and he stated that he does not have authority letter to appear before the court for placing the documents on record. He also stated that he had not personally photocopied the documents. He admitted that he could not tell from seeing the documents as to what were the instructions given to the bank for stopping of payment of cheque in question and that he is not a handwriting expert. To summarize, the witness did not give any opinion on the signature on the cheque. It has been observed in Ajit Savant Majagvai v. State of Karnataka, (1997) 7 SCC 110 that "as a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and the in the event of slightest doubt, leave the matter to the wisdom of experts." Similarly, it was observed in State of Maharashtra v. Sukhdev Singh (1992) 3 SCC 700 that "although section 73 specifically empowers the court to compare the disputed writings with the specimen/admitted writings shown to be genuine, prudence demands that the court should be extremely slow in venturing an opinion of the basis of mere NEHA Digitally signed by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:25:49 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 24/30 comparison, more so, when the quality of evidence in respect of specimen/admitted writings in not of high standard." In the case at hand, the specimen signatures placed on record being photocopies cannot be compared with the cheque in question by the court under section 73, Indian Evidence Act. In the present case, the Bank Manager of the accused would have been a more competent person to say whether it is the signature of the Accused or not, by referring the specimen signatures of the Accused.
(v) Other than the denial of her signature nothing else brought on record by the accused shows that the signature found on the cheque is not hers therefore it cannot be held that the signature found on the disputed cheque has not been made by her. It is not the defence of the accused that, as on the date of presentation of the cheque she was having sufficient funds in the bank to honour the disputed cheque. No proof with respect to same has been placed produced any document to show that as on the date of presentation of the cheque she was having sufficient balance in her bank account and the cheque would have been honoured.
(vi) The defence taken by the accused that, the complainant has misused the cheque by forging her signature cannot be accepted without any probable proof to the contrary. In this regard it is a relevant here to refer the decision of Hon'ble Supreme Court of India reported in (2012) 13 Supreme Court Cases 375 titled as NEHA Digitally signed by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:26:02 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 25/30 Laxmi Dyechem v. State of Gujarat and Others. It has been observed in paragraph 15 as follows:
"...This Court has in the decisions referred to above taken note of situations and contingencies arising out of deliberate acts of omission or commission on the part of the drawers of the cheques which would inevitably result in the dishonour of the cheque issued by them... There is in our view no qualitative difference between a situation where the dishonour takes place on account of the substitution by a new set of authorised signatories resulting in the dishonour of the cheques already issued and another situation in which the drawer of the cheque changes his own signatures or closes the account or issues instructions to the bank not to make the payment...Even in such cases, the question whether or not there was a lawfully recoverable debt or liability for discharge whereof the cheque was issued would be a matter that the trial Court will examine having regard to the evidence adduced before it and keeping in view the statutory presumption that unless rebutted the cheque is presumed to have been issued for a valid consideration."
(vii) As already noted earlier by placing reliance upon M. Abbas Haji (supra), despite the onus being on the accused, no material explanation as to how and in what circumstances the cheque reached the complainant has been adduced by the accused. In the absence of other cogent evidence, acquittal of the accused on the basis of plea of difference in signature, even if accepted, would not be proper, especially in a case where the reason for dishonour is "payment stopped".
Financial capacity
33.It is argued by the ld. counsel for the accused that the complainant does not have financial capacity to advance such a huge loan as is evidenced from the cross-examination conducted NEHA Digitally signed by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:26:15 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 26/30 on this aspect and the fact that the loan was not shown in her ITR or any other documents. Basalingappa v. Mudibasappa (2019) 5 SCC 418 has been relied on to buttress this argument. It is correct that the accused is a house wife however it is stated that she was earlier working as a teacher and thereafter ran a coaching centre. Statements regarding some varying earnings from taking tuitions were also made. In friendly loan transactions, the source of loan assumes immense importance when questioned, however, in the present case, the complainant had already shown her financial capacity to extend such a loan by showing withdrawal of the loan amount from copy of her bank account passbook Ex. CW1/A and thus this contention does not come to the rescue of the accused.
Section 269SS, Income Tax Act, 1961
34.It has been contended by the ld. counsel for the accused that even if it is assumed that the loan amount of Rs. 5 lakh was advanced to the accused, the said transaction was done in cash and as such, violates the provisions of Section 269SS of the Income Tax Act, 1961 (hereinafter referred to as "IT Act"). Failure to comply with the provision entails penalty specified under Section 271D IT Act. The abovementioned argument is devoid of merit as a transaction violative of the provisions of the IT Act does not ipso facto become illegal for purposes of NI Act. Section 269SS of the IT Act on its bare reading applies only to the taking of the loan. Moreover, it has been held in a catena of judgments that the debt Digitally signed NEHA by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:26:28 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 27/30 does not become void merely on contravention of the IT Act. Similar observations were made by the Hon'ble Delhi High Court in the case of Sheela Sharma vs. Mahendra Pal 2016 SCC OnLine Del 4696 and Dilip Chawla vs. Ravinder Kumar 2017 SCC OnLine Del 9753. It was observed in Rohitbhai Jivanlal Patel v. State of Gujarat that if the transaction in question was not reflected in the accounts and income-tax returns, that would at best hold the assesse or lender liable for action under the income-tax laws but, if the complainant succeeds in showing the lending of amount, the existence of legally enforceable debt cannot be denied.
Material Alteration
35.Ld. Counsel for the accused contends that it is admitted case of the complainant that she received the cheque with signature and rest of it was filled in by her husband which means the body of the cheque and date has been tampered with constituting a material alteration under section 87, NI Act and consequently making the negotiable instrument void. It is settled law that it is immaterial that the cheque was filled in by someone else. It would be apposite to quote from Bir Singh v. Mukesh Kumar (2019) 4 SCC 197) at this stage. It was observed that:
"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 for payment of a debt or in discharge of a liability. It is NEHA Digitally signed by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:26:42 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 28/30 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."
Thus, in light of the above judgment this contention of the accused is also negatived.
Section 58, NI Act
36.It has lastly been argued that the case of the accused is that the cheque had been misplaced and obtained by the complainant by unlawful means therefore, the same is hit by section 58, NI Act. Bare perusal of the provision reveals that it is not attracted in the present case and neither has the accused been able to first establish that the instrument was obtained by means of an offence or fraud or unlawful consideration.
37.Accordingly, in light of the aforesaid detailed discussion, the point of determination no.2 is decided in the negative.
Conclusion:
38.In view of the above discussion, this court is of the considered opinion that the complainant has duly proved its case against the accused for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 beyond reasonable doubt qua accused. The accused has miserably failed to rebut the said presumption by raising a probable defence. The accused Ms. Kumkum Sareen is hereby convicted for the offence punishable Digitally signed NEHA by NEHA BARUPAL BARUPAL Date: 2021.07.29 15:26:56 +05'30' CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 29/30 under Section 138 NI Act qua the cheque in question in the present case.
Pronounced in open court on 29th July 2021 through Video Conferencing in presence of the accused.
Let a copy of the judgment be provided to the convict free of cost via email as well as dasti.
This Judgment consists of 30 digitally signed pages.
NEHA Digitally signed by
NEHA BARUPAL
BARUPAL Date: 2021.07.29
15:27:13 +05'30'
(NEHA BARUPAL)
Metropolitan Magistrate-03 (South), NI Act Saket/New Delhi/29.07.2021 CT Cases 475256/2016 SAROJ V. KUMKUM SAREEN Page No. 30/30