Delhi District Court
Atul Sharma vs Veena Kapahi on 19 November, 2024
IN THE COURT OF SH. SHIV KUMAR
M.M. (N. I. ACT) DIGITAL COURT-01, SOUTH-WEST
DWARKA COURTS, NEW DELHI
CC NI ACT NO: 17940/2022
CNR No. DL SW020288152022
Sh. Atul Sharma
S/o Sh. Kishori Lal Sharma
R/o 69A, B3A, Janakpuri,
New Delhi-110058.
.........Complainant
Versus
Smt. Veena Kapahi
W/o Sh. Vinod Kumar Kapahi
R/o 2064, SBI Housing Society,
Vikaspuri, New Delhi.
.......Accused
Offence Complained of or proved : U/S 138 NI Act
Plea of the Accused : Pleaded not guilty
Date of filing : 11.07.2022
Date of Institution : 11.07.2022
Date of pronouncement of judgment : 19.11.2024
JUDGMENT:
1. This criminal complaint was filed by the complainant against the accused under section 138 of the Negotiable Instruments Act, 1881. (Hereinafter be referred to as the NI Act).
2. The case of the complainant is that in the month of February 2019, the accused approached the complainant through her son namely CC No. 17940/2022 Digitally signed Atul Sharma vs. Veena Kapahi by SHIV SHIV KUMAR KUMAR Date:
2024.11.19 14:04:28 +0530 Varun for a friendly loan of Rs. 7,00,000/- (Rupees Seven Lakhs) for a period of one year. On 07.02.2019, the complainant had paid Rs 7,00,000/- in cash to the accused as a friendly loan for the period of one year. At the time of receiving the loan amount, the accused had signed one promissory note in this respect. After expiry of one year, the complainant asked to repay the loan amount but the accused requested the complainant to extend three more months. The complainant again in the month of March approached the accused to repay the said loan amount however, accused requested for two weeks more time but in the meanwhile Covid-19 pandemic started and Government of India declared country vide complete lock down, hence, the complainant could not approach the accused and accused also did not turned up to repay the loan amount as promised. On March 2022, the complainant again approached the accused to return the above said friendly loan of Rs. 7,00,000/- a post dated cheque bearing no. 376158 dated 02.04.2022 amounting to Rs. 7,00,000/- drawn on State Bank of India, Keshopur, New Delhi in favour of the complainant with assurance that the same would be honoured on its presentation in the bank.
3. On the assurance of the accused, the aforesaid cheque in question was presented and same was returned back vide return memo dated 06.04.2022 with remarks "Funds Insufficient". Thereafter, complainant informed the accused about the same and again requested her to make the payment of the dishonored cheque but since thereafter the accused started avoiding the complainant.
4. Thus, after many attempts to seek payment from the accused, the complainant served a legal notice dated 11.05.2022 on the last known and correct address of the accused to seek the repayment of the amount Digitally signed CC No. 17940/2022 by SHIV Atul Sharma vs. Veena Kapahi SHIV KUMAR KUMAR Date:
2024.11.19 14:04:47 +0530 of the cheque in question as the report was received with remarks, "baar baar jaane v soochna dene par bhi praptkarta nahi meelta atha vaapis." But despite deemed service of legal notice, when the accused failed to make the payment of amount of cheque in question to the complainant even after expiry of fifteen days from the date of service of legal notice. Consequently, present complaint was filed.
5. Instant complaint has been filed within the limitation period as per Section 142 of N.I. Act, and the territorial jurisdiction to try the present complaint vests with this Court.
6. Vide order dated 26.07.2022 this Court took cognizance of offence u/s 138 NI Act, and summoned the accused. Thereafter, accused appeared on 14.09.2022. Notice under section 251 of Code of Criminal Procedure (hereinafter referred to as the Cr.P.C) was framed upon her on 30.09.2022, where the substance of the allegation against her was read over and explained to her. The accused pleaded not guilty and claimed trial.
7. She has also disclosed her defence; while framing of aforesaid notice. The accused stated that her son namely Varun Kapahi was in dire need of money in 2015 and she took Rs. 50,000/- in cash on interest and the cheque in question was given as a security against the loan. The complainant also got signed a blank paper. She had already repaid the amount (in cash) in the year 2016 but she did not remember the exact date and month. Some amount was also given through bank. Thereafter, the accused moved an application under Section 145(2) of NI Act which was allowed and the complainant was cross-examined.
Digitally
signed by
SHIV SHIV KUMAR
Date:
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8. In order to prove his case, the complainant tendered his evidence by way of affidavit vide Ex CW1/A and got himself examined as CW-1 and has further relied on the following documents:
a) Ex CW1/1 is Promissory note dated 07.02.2019.
b) Ex. CW1/2 is cheque in question bearing no. 376158.
c) Ex. CW1/3 is Return memo dated 06.04.2022.
d) Ex. CW1/4 is Return memo dated 28.04.2022.
e) Ex. CW1/5 is Legal demand notice dated 11.05.2022
f) Ex. CW1/6 is Postal Receipts.
g) Ex. CW1/7 is Tracking Report.
h) Ex. CW1/8 is Return envelopes.
9. During the cross-examination, the complainant deposed that he runs own business of cars (sale purchase), he has his own play school and he also runs committees. He runs various groups of committees varying from Rs. 3 lacs, 5 lacs and 10 lacs. He can read and write in English. He deposed that he was aware of the contents of legal notice, complaint and evidence by way of affidavit in the present case. He knew the accused through her son Varun Kapahi. He deposed that he knew Varun Kapahi for 7-8 years. Mr. Varun and he also involved in financial transactions/dealing. He used to take loan from him for his business needs. Mr. Varun used to borrow small amount I.e. under Rs. 1 lac. He never used to return the money on time and always took extra days to re-
turn the money. Accused had taken a sum of Rs. 7 lacs from him in the February, 2019 for her son's business. Due to the financial incapacity of the accused's son, he did not agree to give the loan to Mr. Varun but Digitally CC No. 17940/2022 signed by Atul Sharma vs. Veena Kapahi SHIV SHIV KUMAR Date:
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agreed to give the loan to her. Mr. Varun and Ms. Veena had given him some shares and LIC policy (in name of her husband) as security against the loan taken. The documents related to shares are Ex. CW-1/9 (OSR) and LIC policy receipts Ex. CW-1/10 (OSR). He admitted that he had not mentioned the above mentioned documents in his complaint and evi- dence by way of affidavit. The husband of the accused had expired and she had never met him. He deposed that the accused had handed over him the complete file in which all the documents were placed. Further, the accused stated that she was named as nominee in the LIC Policy and shares also. But he did not verify the same. He deposed that he earns Rs. 2.5 to Rs. 3 lacs per month. He voluntarily stated that the same was not fixed. He files ITR. He voluntarily stated that he had filed ITR for the year 2019-2020 and 2020-2021 but not after that. The loan of Rs. 7 lacs was not reflected in ITR, he stated that he can produce the copy of his ITR on the NDOH. He had given the loan to other persons also for their business. He voluntarily stated that he had also borrowed money (total Rs. 50 lacs approx.) from public and bank. He did not remember how much amount he had given as a loan to other persons. There was another case of cheque bounced filed by him against some other person for an amount of Rs. 12 lacs. He admitted that the amount of Rs. 12 lacs as mentioned above was given in cash. He did not remember the date and year when the above mentioned loan was given. He denied the sugges- tion that he did not have financial capacity to give loan to the accused. The accused has not paid any amount in discharge of liability of Rs. 7 lacs. There has been no monetary transaction with other son of the ac- cused Pradeep Kapahi. He stated that he uses PayTm on his phone no. 7838874622. He denied the suggestion that accused had not taken the Digitally signed by SHIV CC No. 17940/2022 SHIV KUMAR Atul Sharma vs. Veena Kapahi Date:
KUMAR 2024.11.19 14:05:01 +0530 loan of Rs. 7,00,000/- in 2019 but had taken a loan of Rs. 50,000/- in 2014 which she had already repaid.
10. On 24.08.2023, the complainant was again cross examined. He ad-
mitted that he had not filed any document is supports of his complaint re- garding proof of income which was about 2.5 to 3 las per month. He ad- mitted that he had not shown the income in his ITR. He voluntarily stated that he had shown less income in his ITR. Husband of accused had expired even prior to when he met Mr. Varun Kapahi 7-8 years back. He did not know the income source of accused but he was aware about the reputation and her worth in the society. The documents Ex. CW-1/9 and Ex. CW-1/10 were provided by the accused persons as a security for the amount given to her. He was not aware about all these documents. He stated that he did not know that the certificates given by the accused as security were in the name of the husband of the accused and that there- fore he had not mentioned in his affidavit Ex. CW-1/A and in his com- plaint that the accused had given the documents Ex. CW-1/9 and Ex. CW-1/10 as security.
Ld. Counsel for the accused has furnished the document i.e. death certificate of the husband of the accused namely VK. Kapahi Ex. CW-1/DX1. The accused had never repaid any part of the loan given by him. Statement of account for the year 2015-2019.
11. This is, in sum and substance, the complainant's evidence. The complainant led no other evidence and CE stood closed on 24.08.2023.
12. Thereafter, the accused was examined u/s. 313 Cr.P.C. All the in- criminating material against her was put to the accused, and the accused was given an opportunity to offer explanation qua the same to which she stated that she did not take any loan of Rs. 7 lacs from the complainant.
CC No. 17940/2022 Digitally signed Atul Sharma vs. Veena Kapahi by SHIV SHIV KUMAR KUMAR Date:
2024.11.19 14:05:07 +0530 In 2015, she had taken a loan of Rs. 50,000/- in cash and in 2016, she had repaid Rs 40,000/- to Rs. 45,000/- in cash and the balance amount was repaid through PayTm year 2019 (Again said 2021). The cheque in question was given as security in 2015. When she asked the complainant to return the cheque the complainant made excuses and misused the cheque in question. When queried to this effect, the accused opted to lead D.E.
13. In Defence Evidence, accused examined herself as DW-1. She de- posed that in 2015, she had taken Rs.50,000 in cash from the com- plainant. The cheque in question (blank signed cheque) alongwith 2-3 papers signed by her were given to the complainant. In 2016, she had re- paid the amount in cash and the balance amount of Rs. 7000/- approx was paid in the year 2020-2021 through paytm. When she asked the complainant to return the cheque and the papers, he did not give them back and misused the cheque in question. She rely on the documents i.e. Statement of account Ex. DW-1/1 and Certified copy of the order dt. 20.09.2022 Ex. DW-1/2.
14. During cross examination, the accused has deposed that she is Graduate and she never worked before. Name of her son is Varun Kapahi and she is involved in the business of plastic moulding for about 4-5 years. She did not know the monthly income of her son. She admitted that she had taken a loan from the complainant. She denied the sugges- tion that the loan was taken to settle the business of her son or that she had taken a loan of Rs. 7 lacs to help her son establish her son's business. DW-1 was confronted with document Mark CW-1/1. She admitted that the promissory note bears her signatures at point A. She could not iden- tify the signatures of her son at point B. She had signed on the blank promissory note. Although she had taken a loan of Rs. 50,000/- from the CC No. 17940/2022 Digitally signed Atul Sharma vs. Veena Kapahi by SHIV SHIV KUMAR KUMAR Date:
2024.11.19 14:05:12 +0530 complainant in 2015 still she could not identify the complainant. She de- nied the suggestion that she had taken a loan of Rs. 7 lacs from the com- plainant for a period of one year or that she had given certain share cer- tificates to the complainant alongwith the cheque in question. Presently, no other case is pending against her or her son but there was a case u/s 138 NI Act in the amount of Rs. 52 lacs which was settled in the amount of Rs. 2 lacs in court. She admitted that Sumit Arya and her son Varun were friends. She admitted that she was not aware whether Sumit Arya had also taken loan from complainant in 2019. She did not know about the business of the complainant. She denied the suggestion that her son had been declared Proclaimed Offender in another case.
15. No other witnesses were examined by the accused, and DE was closed on 02.04.2024. Final arguments were heard at length on behalf of both the parties.
16. Ld. Counsel for the complainant reiterated all the averments made in the complaint and has argued that the complainant has proved all the ingredients of the offence under section 138 NI Act. He also argued that legal notice was deemed served as the report was received with remarks, "baar baar jaane v soochna dene par bhi praptkarta nahi meelta atha vaapis." He argued that the complainant has proved his case and prayed that the accused be convicted.
17. Ld. Counsel for the accused, on the other hand argues that the ac- cused has taken the loan of Rs. 50,000/- only in cash out of that the ac- cused has already made the repayment of Rs. 40,000/- to 45,000/- in cash and remaining approx. 7000/ through bank transfer/PayTM to the com- plainant. The complainant is running an illegal money lending business. Further submitted that no legal demand notice was received by the ac-
Digitally signed by SHIVCC No. 17940/2022 SHIV KUMAR Atul Sharma vs. Veena Kapahi Date: KUMAR 2024.11.19 14:05:17 +0530 cused, only summons was received by the accused issued by this Court. In support of her contention, accused relied upon the Judgment of Hon'ble High Court of Judicature at Bombay in Criminal Appeal No. 394 of 2015, Mrs. Monica Sunit Ujjain Vs. Sanchu M Menon & Ors. He further alleged that complainant is, at best, an unlicensed moneylen- der and hence, no action for recovery of any amount can is maintainable by such complainant. At last, he argued that entire repayment of Rs. 50,000/- was made by accused before filing of the instant complaint, hence, the complaint itself is not maintainable against accused.
18. It would be appropriate to briefly discuss law applicable to the de- fence of dishonor of cheque before finding of conviction. The legal posi- tion that emerges, from reading of S.138 N.I. Act, is that before finding of conviction with the offence punishable Section 138 N.I. Act can be re- turned against the accused, it has to be established, cumulatively-
a. The cheque was drawn by the accused on an account main- tained by him with a bank for payment of a certain amount of money to another person from out of that account;
b. That the cheque was issued in discharge of any debt or liabil- ity;
c. That the cheque has been presented to the bank within a pe- riod of 3 months from the date on which it was drawn or within the period of its validity, whichever is earlier;
d. That the cheque is returned by the bank unpaid, either be- cause of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount ar-
Digitally signed by SHIVSHIV KUMAR CC No. 17940/2022 KUMAR Date: Atul Sharma vs. Veena Kapahi 2024.11.19 14:05:22 +0530 ranged to be paid from that account by an agreement made with the bank;
e. The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
f. The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
19. The language of section 138 NI Act leaves no room for doubt that only when all the above ingredients are satisfied can the drawer of the dishonoured cheque be said to have committed an offence under section 138 NI Act. It is also pertinent to note that Section 138 of the NI Act cannot be read in isolation and has to be read along with sections 139 and 118 of the NI Act, which entitle the payee or holder in due course to certain presumptions of law. It is relevant to state aforementioned provisions of NI Act, which are as follows:
"Section 139- Presumption in favour of holder- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability."
20. Section 139 of the NI act, being a reverse onus clause, is an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. This provision stipulates a presumption in favour of the complainant with regard to the existence of a legal debt or liability.
Digitally
CC No. 17940/2022 signed by Atul Sharma vs. Veena Kapahi
SHIV SHIV KUMAR
Date:
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21. Similarly, section 118(a) of the NI Act further provides that until the contrary is proved, it shall be presumed that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.
22. The nature and scope of the abovementioned presumptions have been discussed in the cases of Hiten P. Dalal v Bratindranath Banerjee, (2002) 6 SCC 16 and Rangappa v Sri Mohan, (2010) 11 SCC 441 wherein it was observed by the Hon'ble Supreme Court of India that section 139 of NI Act, being a presumption of law, makes it mandatory for the Court to draw a presumption in every case where the foundational facts required raising such presumption have been successfully established by the complainant. The Court further held that the accused, against whom the presumption is raised, is not prevented from rebutting this presumption. This rebuttal, or rather the defence taken by the accused, the Court clarified, need not be conclusively established and the accused is required to only lead such evidence that causes the Court to either believe the defence to exist or consider its existence to be reasonably probable. Hence, the standard of proof for the accused is that of "preponderance of probability" and not "beyond reasonable doubt". The accused can successfully rebut the presumption raised against him by raising a probable defence or by discrediting or creating doubts in the case of the complainant. In order to do this, the accused may either lead evidence of her own or she can simply rely on the materials submitted by the complainant.
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23. With the position of law being as discussed above, let us now advert to the facts of the present complaint.
24. This Court shall now examine if the four ingredients as described in the forgoing paragraph have been satisfied in this case. The defence taken by the accused upon being served with notice under section 251 Cr.P.C. and also her statement recorded under section 313 Cr.P.C., shows that the accused has neither denied issuance of the cheque in question (Ex CW1/2) in favour of the complainant, nor has she denied her signatures on the said cheque in question. Further, presentation of the cheque and its eventual dishonour for the reason "Insufficient Funds" as specified in return memo (CW1/3) and (CW1/4) is also not in dispute. However, the accused has denied the receiving of legal notice (Ex. CW1/5) and Speed post receipt along with delivery report to deemed service to the accused (Ex. CW1/6 to CW1/8) sent by the complainant regarding the cheque in question.
25. It is well settled law that once the execution of cheque is admitted, section 139 of the NI Act mandates the drawing of the presumption that the cheque was issued in discharge of any debt or other liability. Reliance in this regard is placed on the recent case of Basalingappa v Mudibasappa (2019) 5 SCC 418. It is also pertinent to note that, as per the Rangappa vs Sri Mohan (2010) 11 SCC 441 passed by Hon'ble Supreme Court of India, the presumption mandated by the said legal provision is not just with respect to the existence of a debt or liability but rather the existence of a legally enforceable debt or liability.
26. Hence, when the accused in the present case admitted to having issued the cheque in question from her bank account and also to having Digitally signed by SHIV CC No. 17940/2022 SHIV KUMAR Atul Sharma vs. Veena Kapahi KUMAR Date:
2024.11.19 14:05:37 +0530 signed the cheque and however denied the particulars filled in cheque in question including the date, amount and the name of the payee on the said cheque, she admitted due execution of the cheque in question. These admissions entitle the complainant to the presumption under section 139 of the NI Act and hence, the same is drawn in his favour.
27. Once presumption is drawn against the accused u/s 139 of NI Act, the accused has to offer on something that makes her version probable. This the accused can do by both successfully raising and proving competing version to the case of the complainant or by perforating the case of the complainant. Opportunity to do this arises for the accused at four stages: -
a. When the accused puts forth defence at the time of when his plea of defence as recorded after the substance of acquisition is explained to him u/s 251 CrPC.
b. When the accused cross-examine the complainant pursuant to his application u/s 145(2) N.I. Act being allowed.
c. When the statement of the accused is recorded u/s 313 CrPC.
d. When the defence witness was examined.
28. The stand taken by the accused at all these stages shall be examined to determine if the accused could raise a probable defence on the touchstone of benchmark set in the judgment as held by Hon'ble Supreme Court of India in Kumar Exports vs Sharma Carpets (2009)2 SCC 513.
29. The core issue that arises for consideration whether the cheque in question was issued by the accused in discharge of her liability.
CC No. 17940/2022 Digitally
signed by
Atul Sharma vs. Veena Kapahi
SHIV KUMAR
SHIV Date:
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30. As discussed above, the presumption u/s 139 of N.I Act has already been raised against the accused. The accused is duty bound to present probable defence. The accused has averred that she has not filled the particulars on the cheque in question. In Oriental Bank of Commerce V. Prabodh Kumar Tewari Crl. Appeal no.1260 of 2022 it has been held by Hon'ble Supreme Court of India that, "For such a determination, the fact that the details of the Cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the Cheque cannot be rebutted merely by the report of a hand-writing expert. Even if the details in the Cheque have not been filled by drawer but by another person, this is not relevant to the defence whether Cheque was issued towards payment of a debt or in discharge of a liability."
31. Even if for the sake for the arguments, it is believed that cheque in question was blank but the fact that the Cheque is in possession of the complainant as it is issued by accused in favour of the complainant. The said fact is admitted by the accused throughout the course of trial. Further, inaction on the part of accused to take steps for stopping misuse or wrong encashment of her cheque by complainant suggests that she never took steps to procure back her alleged blank signed cheque. No police complaint/Court case was filed by accused against complainant to prevent alleged misuse/recover back the documents, ie, promissory note, cheque in question, share documents and the cheque in question. Section 20 of the NI Act provides that if a person signs and delivers a paper stamped in accordance with the loan and either wholly blank or have written thereon an incomplete negotiable instrument, such person thereby gives prima facie authority to the holder thereof to make or Digitally signed by SHIV CC No. 17940/2022 SHIV KUMAR Atul Sharma vs. Veena Kapahi Date:
KUMAR 2024.11.19 14:05:47 +0530 complete, as the case may be, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp.
32. Another argument addressed by the Ld. Counsel for accused that complainant is a money lender by profession and hence, without a valid license, the complaint is not maintainable. Counsel for accused has placed his reliance upon Monica Sunit Ujjain v Sanchu M Menon, CR 394 2015 wherein Hon'ble Bombay High Court has held that in cases of money lending business without license, the provisions under Section 138 of Negotiable Instruments Act are not attracted.
33. However, accused has failed to establish that complainant is a money lender by profession. Complainant in his cross examination specifically denied that he is a money lender. It is alleged by accused that the complainant is a money lender without having valid license. As per Section 103 of Indian Evidence Act, 18723 enunciates that "The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that act shall lie upon any particular person." and in the present case accused has not filed and evidence to prove that the complainant is a money lender. Even if, for the sake of arguments, it is believed that complainant is a money lender by profession; Law laid down by Hon'ble high court of Delhi in Kajal vs Vikas Marwah, 2014 (210) DLT 587 comes to the rescue of complainant. Wherein it was held that as per Section 3 of the Punjab Registration of Money Lender's Act, 1938, "It does not debar a money lender from instituting a complaint under Section 138 of the Negotiable Instruments Act, 1881, which is a remedy enforceable before a criminal court, and totally independent of a civil suit. The criminal liability is incurred only in case a cheque is CC No. 17940/2022 Atul Sharma vs. Veena Kapahi Digitally signed by SHIV SHIV KUMAR Date:
KUMAR 2024.11.19 14:05:52 +0530 issued in discharge of a debt or other liability, the said cheque is dishonoured for want of funds and the borrower fails to make payment of the amount of the cheque even after receipt of a notice from the lender."
34. The argument of the learned counsel for the accused that repayment of loan of Rs. 50,000/- was made before filing of the instant complaint is not substantiated. Defence did not examine Varun Kapahi as defence witness as the person through whom accused met with the complainant. Signed promissory note (Ex. CW1/1) as well as signed cheque in question (ex. CW1/2) are in favor of complainant. Defence failed to mention rate of interest of alleged loan of Rs. 50,000/-.
35. It is pertinent to note that defence side failed to demonstrate as to how and why complainant came in possession of Ex. CW1/9 documents of shares and Ex. CW1/10 LIC Policy documents of husband of accused. The death certificate of the husband of the accused namely V.K. Kapahi Ex. CW-1/DX1 is also on record.
36. The defence side could not give reason why the accused allegedly signed 2-3 blank papers and handed over the same to complainant while herself being graduate and well-educated and having been conducting plastic moulding business herself for about 4 years. Accused might have apprehended in advance that signing blank papers and giving the same to creditor might be harmful to her own interest.
37. Furthermore, another condition with regard to Section 138 NI Act is receiving of legal notice. Accused has denied to the receiving of legal notice at the stage of notice framed under Section 251 CrPC. In the notice framed u/s 251 CrPC, accused gave her address as R/o 2064, SBI CC No. 17940/2022 Digitally signed by Atul Sharma vs. Veena Kapahi SHIV SHIV KUMAR Date:
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housing Society, Vikas Puri, New Delhi. The same address was reiterated in her statement u/s 313 CrPC dated 01.10.2023. The same address is reiterated in Ex. DW1/1 PayTM Payments Bank Statement of accused. Annexure E Colly attached to complaint is photocopy of Legal Notice cum demand letter dated 11.05.2022 and is sent to same address of accused as mentioned in this paragraph. The postal receipt (Annexure F) and Tracking report (Annexure G) also demonstrate the same address.
This court is of the view that the address on the legal notice once having been shown to be the correct address of accused and legal notice having been dispatched by registered AD, a presumption of due service arises in view of Section 27 of General Clause Act & Section 114 of Indian Evidence Act and now it is upon accused to prove that notice was not served upon her. The service of the legal notice is deemed service. Not even an iota of evidence has been brought on record by the accused to displace the presumption of due service. To the contrary, perusal of record shows that complainant has issued a legal demand notice to the accused and same was dispatched by way of speed post.
38. Also in CC Alavi Haji Vs. Palapatti Mohammad (Crl.)767/2007 the Hon'ble Supreme Court of India held that "where the notice is sent by Registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of clause (b) of proviso to section 138 Act stands complied with." Further, the above judgment also stated that "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 u/s 138 NI Act make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons. In the present case, the accused Digitally CC No. 17940/2022 signed by SHIV KUMAR Atul Sharma vs. Veena Kapahi SHIV Date:
KUMAR 2024.11.19 14:06:01 +0530 has failed to adduce any evidence to rebut the presumption of due service. As such, the legal notice stood served upon the accused." Therefore, in view of the discussion, the complainant has remained successful to prove that the legal notice was sent to the accused at her admitted address within stipulated period through speed post.
39. Further, another condition qua the presentation of the cheque within three months is concerned, the same is satisfied upon the perusal of the cheque in question (Ex. CW-1/2) dated 02.04.2022 while the return memo (Mark CW1/3) dated 06.04.2022 thus, being presented within the prescribed period of limitation of three months. The defence did not adduce any evidence whatsoever to contradict the same nor the statement of account for the year 2015-2019 (Ex. CW-1/11).
40. Further, another condition pertains to the cheque being returned unpaid owing to their being dishonored. Bank return memo or slip is prima facie proof of dishonor. Section 146 of the Negotiable Instruments Act, 1881, in this regard comes into play which raises a presumption that the court shall presume the fact of dishonor of the cheque in case of cheque is returned vide a return memo issued by the bank having thereon the official mark denoting that the cheque has been dishonored. However, the same is admitted by the accused in notice framed under Section 251 Cr.P.C. dated 30.09.2022.
41. The last condition is that accused fails to make the payment within fifteen days from the date of the receipt of the legal demand notice. In the present case, the accused has evidently failed to make the payment within the fifteen days contending that she did not take loan of Rs. 7,00,000 from complainant. Accused said in her statement recorded Digitally signed by SHIV CC No. 17940/2022 SHIV KUMAR Atul Sharma vs. Veena Kapahi Date:
KUMAR 2024.11.19 14:06:06 +0530 u/s 313 CrPC that she took loan of Rs. 50,000/- in cash and in 2016, she had repaid Rs. 40,000/- to Rs. 45,000/- in cash and balance by way of PayTm. Ex. DW1/1 is annexed. The accused has failed to prove that said assertion further failed to rebut presumption in favor of complainant and thus, the last limb of what will entail the liability against the accused, is also structured.
42. The major defence led by accused is that the accused has taken a loan of Rs. 50,000/-only, instead of Rs. 7,00,000/- from the complainant. In the present case, the onus to prove that accused has not taken a loan of Rs.7,00,000 /- primarily lied on the accused.
43. Further, the defence has raised a question upon the financial capacity of the complainant to prove his source of loan in cash specifically. The complainant in his cross examination specifically replied that he used to run business of purchase and sale of cars, ran a play school as well as few committees. It is not hard for such individual to render cash loan of Rs. 7,00,000/- to accused. Even in view of law laid down by Hon'ble Apex Court in Rohitbhai J Patel vs The State of Gujarat, criminal appeal no. 508/19 wherein it has been categorically held that the complainant need not to prove the source of funds which were subsequently used for advancement of loan till the time accused has discharged his burden. In the present case accused has failed to discharge her initial burden of proof. Furthermore, the possession of cheque and promissory note is a circumstance in favor of complainant and against the accused in the event of failure of accused to show steps taken to restore the possession of the same before use by complainant. Therefore, the said defence is not proved.
Digitally
CC No. 17940/2022 signed by
Atul Sharma vs. Veena Kapahi
SHIV SHIV KUMAR
Date:
KUMAR 2024.11.19
14:06:11
+0530
44. In view of the above discussion, the defence taken by the accused appears to be only a bare denial and does not measure up to the standard of "preponderance of probability". This Court is of the considered opinion that the complainant has successfully satisfied all the ingredients of offence under section 138 NI Act and the accused has failed to rebut the statutory presumptions raised against her either based on the material available on record or by adducing cogent evidence.
45. The complainant has with the aid of evidence led a presumption of legal liability under Section 118 read with Section 139 of N. I. Act and has successfully proved the basic ingredients of offence under section 138 N. I Act.
46. Accused Smt. Veena Kapahi w/o Sh. Vinod Kumar Kapahi is, thus, convicted for the offence under section 138 NI Act.
47. Let the convict be heard separately on quantum of sentence.
48. Let a copy of this judgment be given to the convict free of cost.
Pronounced in the Open Court on 19.11.2024 This Judgment consists of 20 signed pages.
Digitally signedSHIV by SHIV KUMAR Date:
KUMAR 2024.11.19 14:06:18 +0530 (Shiv Kumar) MM (NI ACT) Digital Court-01 South West, Dwarka Courts, New Delhi 19.11.2024 CC No. 17940/2022 Atul Sharma vs. Veena Kapahi