Delhi District Court
Page No. 1 Of 10 Meena Aggarwal vs . Salma on 3 November, 2015
1
IN THE COURT OF VIDHI GUPTA,
METROPOLITAN MAGISTRATE (NI ACT) (EAST), KARKARDOOMA
COURTS:
SHAHDARA, DELHI.
JUDGMENT U/S 355 Cr.PC
Unique ID : 02402R0745922007
a. Serial No. of the case : 1330/07
b. Date of the commission of the offence : 28/10/2007
c. Name of the Complainant : Meena Aggarwal.
d. Name of Accused person and his parentage: Salma,
and residence W/o Sh. Nabi Rasool,
R/o 606, Kalyanvas, Delhi91.
e. Offence complained of : Dishonouring of cheque for
the reason "funds insufficient".
f. Plea of the Accused and his examination (if any): Not guilty
because no liability towards
the complainant.
g. Final Order : Acquitted.
h. Order reserved on : 22.09.2015.
i. Order pronounced on : 03.11.2015.
Page No. 1 of 10 Meena Aggarwal vs. Salma
2
Brief reasons for decision:
1.Brief facts necessary for the disposal of this case are that on 20.11.2007, a complaint was filed by Smt. Meena Aggarwal, (hereinafter referred to as the Complainant) under section 138 of the Negotiable Instruments Act (NI Act) r/w section 420 of IPC against Smt. Salma (hereinafter referred to as the Accused) whereby presummoning evidence was led by the complainant, cognizance was taken for the offence under section 138 of the NI Act and vide order dt. 22.11.2007 the Accused was summoned before this Court.
2. It is the case of the complainant that the complainant and accused were having cordial relations . On account of some urgent need of money accused approached the complainant for a friendly loan of Rs.20,000/ and the same was advanced by the complainant to the accused on 01.05.2007 which was to be repaid within a period of one month. When the complainant requested the accused to return the loan amount, the accused issued the cheque in question bearing no. 077402 dated 02.06.2007 for an amount of Rs.20,000/ drawn on Canara bank, Mayur Vihar PhaseII, Delhi91 (Ex. CW1/A). When the said cheque was presented by the complainant with her banker i.e Axis Bank Ltd., Mayur Vihar PhaseII, Delhi91, the same was dishonoured with the remarks funds insufficient vide return memo dated 03.10.2007 (Ex. CW1/B). The complainant contacted the accused and requested her to make payment of cheque amount but the accused did not make payment on one pretext or the other and ultimately flatly refused to pay the cheque amount. Resultantly, the Page No. 2 of 10 Meena Aggarwal vs. Salma 3 complainant issued a legal demand notice dated 12.10.2007 (Ex. CW1/C) to the accused through registered AD as well as UPC on 15.10.2007 (postal receipts are Ex. CW1/D & Ex. CW1/E and the acknowledgment card is Ex. CW1/F). It is lastly stated by the complainant that despite receiving of notice, the accused neither replied to the same nor made payment of cheque amount to the complainant, hence, present complaint case has been filed.
3. Notice of accusation u/s 251 Cr. P.C was served upon the accused under Section 138 NI Act on 10.10.2008, to which she pleaded not guilty and claimed trial.
4. To prove his case, the complainant tendered her postsummoning evidence by way of affidavit Ex. CW1/1 and relied upon her already exhibited documents and examined herself as CW1. The accused was given due opportunity to cross examine the complainant and thereafter, CE was closed on 10.12.2010.
5. Statement of the accused had been recorded under Section 313 Cr. P.C on 20.02.2014 wherein the accused admitted to her signature on cheque in question but denied filling in the contents of cheque in question. She further stated that she did not know how to read or write in English. Accused also stated that she had lost her cheque book containing cheque in question alongwith her bag on 03.06.2005 and in that respect she also lodged a complaint with PS Kalyan Puri and her bank. She denied taking any friendly loan from the complainant but admitted to visiting the house of the complainant 23 times. With Page No. 3 of 10 Meena Aggarwal vs. Salma 4 respect to legal demand notice, she stated that she did not remember whether she had received it or not. Lastly, she stated that she wanted to lead evidence in her defence.
6. In order to prove her innocence, the accused examined three witnesses i.e. DW1 herself, DW2 Bank witness from Canara bank and DW3 Ct. Harinder from PS Kalyan Puri. During her testimony DW1 i.e the accused filed copy of the application submitted by her with her bank with respect to her lost cheques (Ex. DW1/1) and copy of the police complaint with PS Kalyan Puri (Ex.DW1/2). Further, bank witness also filed certain documents on record i.e Bank statement of account of accused (Ex. DW2/1) and instructions regarding stop payment of cheques of the accused (Ex. DW2/2). After cross examination of defence witnesses, DE was closed on 01.09.2015 and thereafter, the matter was listed for final arguments.
7. Counsel for both the parties argued the matter at length in support of their respective cases. Arguments heard. Record perused. Counsel for the accused also filed certain relevant authorities in support of the case of the accused including John K. Abraham vs. Simon C.Abraham (Crl. Appeal No. 2043/13 dated 05.12.2013 before the Hon'ble Supreme Court of India) and C. Antony vs. K.G. Raghawan Nair (Crl. Appeal No.1748/96 dated 01.11.2002 before the Hon'ble Supreme Court of India).
8. In the present case, while the complainant has alleged a friendly loan transaction of Rs. 20,000/, the accused has denied the same stating that her Page No. 4 of 10 Meena Aggarwal vs. Salma 5 misplaced cheque has been misused by the complainant. Nevertheless, it is not disputed by the accused that the cheque in question bears her signature. Hence, the presumptions under the NI Act arise against the accused. Further, it is also a matter of law that the said presumptions are rebuttable in nature and the same can be done by the accused by either pointing out loop holes in the case of the complainant by cross examining him / her or by leading evidence in his / her defence which is probable and believable.
8.1. It has been held by the Hon'ble High Court of Delhi, in the case titled as Birender Singh vs. State(NCT of Delhi) [2008 (1) JCC (NI) 15] that:
5. There is no doubt that the burden rests on the accused to rebut the presumption as raised under Sections 139 and 118 of the Negotiable Instruments Act. However, this presumption can be rebutted by the accused not merely by examining his own witnesses but even by cross examination of the complainant and his witnesses and bringing out on record, through cross examination, that the complainant was a liar and there was no privity of contract between the complainant and the accused and cheques were misused. It must be kept in mind that once evidence is brought on record from both the sides, it is evidence of the case and Court can draw inference from the evidence in favor or against either of the parties. Evidence is a complainant's evidence and accused's evidence for the purpose of identifying it, but once it is adduced in the case, it is evidence in the case and evidence has to be read as a whole. The Court cannot read the evidence of the complainant only to the extent it favors the complainant and overlook the rest of Page No. 5 of 10 Meena Aggarwal vs. Salma 6 the evidence which supports accused case on the ground that it is the complainant's evidence.
Similarly, from the evidence adduced by the accused, the Court can draw inference in the favor of the complainant. The accused has a right to argue his case even on the basis of complainant's crossexamination and show to the Court that the presumption in favor of the complainant stands rebutted from its own evidence.
8.2. Keeping in view the aforesaid yardstick with respect to rebutting the presumptions under the NI Act, it shall now be determined as to whether the accused has been able to raise a reasonable probable defence or not.
9. Firstly, it is relevant to scrutinize the cross examination of the complainant so as to determine so as to whether she has been able to stand her grounds or not.
9.1. At the outset, a glaring discrepancy surfaces with respect to the amount of loan which was demanded by the accused from the complainant. In her complaint, the complainant has stated that the accused had approached her and requested her to give her a loan of Rs. 20,000/ which was advanced by her to the accused. However, making a shift from this averment, in her cross examination, the complainant has stated that:
I do not remember the date when accused approached me for a friendly loan of Rs. 70,000/, however, she had not informed about the purpose of loan. I could only arrange for Rs. 20,000/.
9.2. Further, the complainant has stated in her cross examination that she Page No. 6 of 10 Meena Aggarwal vs. Salma 7 has known the accused since 2002 and they often visit each other's house. She has also stated that earlier also the accused had been taken loan from the complainant. In view of the said submissions, it is reflected that the complainant must be well aware about the place of residence of the accused. In her cross examination, the complainant has stated that the house number of the accused is 207 or 208, Kalyanwas, Delhi. However, on perusal of record it is revealed that the actual address of the accused is 606, Kalyanwas, Delhi. Hence, the averment of the complainant that she had often visited the house of the accused becomes some what doubtful.
9.3. Coming now to the basis of this case i.e. the cheque in question, it has been stated by the complainant in her evidence by way of affidavit that in due discharge of liability, the accused had issued cheque in question dt. 02.06.2007 to her for an amount of Rs. 20,000/ on request of the complainant to return the loan amount. However, again in her cross examination, the complainant has taken varied stand with respect to filling in of contents of cheque in question as well as handing over the same, which further weakens her case.
Complainant has stated in her cross examination that:
Cheque Ex. CW1/A duly filled was given by accused to me at the time of receiving loan. I filled the entries in cheque Ex. CW1/A in the presence of accused and she affixed her signatures. I have not filled the date on the cheque Ex. CW1/A. (Again said) Date was entered by me.
Hence, yet again the case of the complainant is made highly Page No. 7 of 10 Meena Aggarwal vs. Salma 8 unbelievable by her as on the one hand, she submits that cheque was handed over by the accused to her at the time of advancement of loan in question and on the other hand, she submits that it was after her request to return the loan amount the cheque in question has been issued to her by the accused. Clearly, both the stands can not be true at the same time.
Moreover, with respect to filling in of the contents of cheque in question, at one place the complainant submitted that the cheque was duly filled in when the same was handed over and at another place she submits that she had filled the entries on cheque in question. Therefore, again the inconsistency in the testimony of the complainant is visible.
9.4. On perusal of cheque in question, it is apparent that the name of payee and date on cheque in question have been filled by a different person than who has filled the remaining contents on the same. It is also observed that at the back of the cheque in question, account number has been written in the same black ink and the handwriting by the person who has filled the name of payee and date on cheque in question, while the remaining contents have been filled in blue ink. Hence, the averment of the accused that she did not fill in the contents on cheque in question does find merit.
9.5. The complainant has stated in her cross examination that even her husband had contributed an amount of Rs. 20,000/ as loan against the demand of Rs. 70,000/ by the accused. She has added that she does not remember as to when was the loan amount given by her husband to the accused. In these Page No. 8 of 10 Meena Aggarwal vs. Salma 9 circumstances, the husband of the complainant would have been a relevant witness in this case but for the reasons best known to the complainant, he has not been brought in the witness box.
10. On the other hand, on bare perusal of record not only from the cross examination of the complainant which has been conducted by the counsel for the accused but also from her statement u/s 313 Cr.P.C and her testimony as DW1, it is manifest that a consistent stand has been taken by the accused herein i.e. that she had lost her cheques in a bus and had also stopped the payment of the lost cheques with her bank.
10.1. DW2 i.e. the bank witness has also supported the said averment of the accused as well as her document Ex. DW1/1 which makes it apparent that the payment of cheque in question was stopped in June, 2005. Hence, the version of the accused that she had lost her cheques and hence stopped their payment does become probable.
10.2. Surprisingly, however, the sanctity of document Ex. DW1/2 is brought under serious doubt from the testimony of DW3 who stated that there is no entry in complaint register with respect to complaint Ex. DW1/2. 10.3. In the analysis of defence evidence it has to be kept in mind that the burden upon the accused is not as heavy as upon the prosecution or the complainant who have to prove their case beyond all reasonable doubts. In the present case also, even though the accused has been unable to prove her defence but she has definitely made her defence plausible and possible.
Page No. 9 of 10 Meena Aggarwal vs. Salma 10 Consequently, in view of the legal principle that benefit of any doubt in the case of the complainant must go to the accused, the accused hereby deserves to be freed from the charges levelled against her in this case.
11. Resultantly, while holding that the presumptions under the NI Act have successfully been rebutted by the accused, the accused is hereby acquitted for the offence u/s 138 of NI Act.
Announced in the open court (VIDHI GUPTA)
on 03rd Day of November, 2015. MM/KKD/Delhi
This judgment contains 10 signed pages.
Page No. 10 of 10 Meena Aggarwal vs. Salma