Delhi District Court
Mrs. Nidhi Verma Through Attorney Mr. ... vs Sh. Deepak Verma on 23 August, 2024
IN THE COURT OF Ms. KAVITA BIST: JMFC (N.I.ACT) DIGITAL
COURT / EAST DISTRICT, KKD COURTS: NEW DELHI
Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak
Verma
CC No. 1568/2021
u/s 138 Negotiable Instruments Act, 1881
1. CIS number : 1568/2021
2. Name of the Complainant : Mrs. Nidhi Verma through
attorney Mr. Deepak Verma,
S/o Late L.N Verma,
R/o 69-D, Pocket-1, Mayur Vihar
Phase-I, Delhi-110091.
3. Name of the accused, : Sh. Deepak Verma
parentage & residential address S/o Late Mahesh Chand Verma
R/o 118, 2nd Floor, Chowk
Barsabullah, Near Shyam Sweets,
Chawri Bazar, Delhi-110006
also at: 1733, First Floor, Right
Side, Dariba Kalan Main Road,
Chandni Chowk, Delhi-110006
4. Offence complained of or : u/s 138 Negotiable Instruments
proved Act, 1881
5. Plea of the accused : Pleaded not guilty and claimed
trial.
6. Final Judgement / order : Convicted
7. Date of Judgement / order : 23.08.2024
Date of Institution : 19.07.2021
Date of Reserving Judgement / Order : 05.08.2024
Date of Pronouncement of Judgement / Order : 23.08.2024
Digitally
signed by
KAVITA BIST
KAVITA Date:
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JUDGEMENT
1.) By way of the present Judgement, this court shall dispose of the present complaint filed by Nidhi Verma through attorney Mr. Deepak Verma (herein after referred to as 'Complainant') against Deepak Verma (herein after referred to as 'accused') u/s 138 Negotiable Instruments Act, 1881 r/w section 142 Negotiable Instruments Act, 1881 (herein after referred to as "N.I. Act" in short).
Factual Matrix
2.) The brief facts as alleged by the complainant in the complaint are that the accused is a relative of the complainant and due to the said family relations, the accused in April 2017 sought a friendly loan of Rs. 10 lakh from the complainant for starting some business. Thereafter, the complainant had agreed for the same but told the accused that the amount would be given in parts as and when required by the accused. The accused promised the complainant to return the same within 24 months and further assured the complainant that in case, he failed to return the said amount to the complainant within period of 24 months, he would return the loan amount along with interest. Thereafter on the request of the accused, the complainant paid an amount of Rs. 1 lakh, Rs. 2 lakh, Rs. 2 lakh and Rs. 3,90,000/- on 04.04.2017, 24.04.2017, 28.04.2017 and 23.05.2017 respectively through NEFT and amount of Rs. 1,10,000/- in cash on 04.06.2017 to the accused. Thereafter, in the first week of March 2021, the complainant requested the accused to repay the entire loan amount, the accused in order to repay that loan and in discharge of his legally enforceable liability had issued a cheque Digitally signed by KAVITA BIST KAVITA Date:
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bearing no. 830372 dated 06.03.2021 amounting to Rs. 10 lakh, draw on State Bank of India, Hauz Quazi, Delhi in favour of the complainant.
When the complainant presented the said cheque (herein after referred to as 'cheque in question') through her banker ICICI Bank, Mayur Vihar Phase-I, Delhi branch, the same was returned unpaid by the banker of the accused vide returning memo dated 10.03.2021 with the remarks "Funds Insufficient".
The complainant thereafter issued a legal demand notice on 23.03.2021 through Counsel calling upon the accused to pay the said cheque amount within a period of 15 days from receipt thereof. The said notice was duly served upon the accused and the accused failed to pay the aforesaid cheque amount within the statutory period.
Hence, the present complaint u/s 138 N.I.Act was filed on 19.07.2021 by the complainant, praying for the accused to be summoned, tried and punished for commission of the offence u/s 138 N.I.Act. The complainant has averred that the present complaint is within the period of limitation and falls within the territorial limit of this Court's jurisdiction; thus, being tenable at law.
Proceedings before the Court
3.) Pre-summoning evidence of the complainant: To prove prima-facie case, the complainant led pre-summoning evidence by way of affidavit, exhibit CW1/A, however, as the court was working digitally at that time so the tendering was dispensed with. Digitally signed by KAVITA KAVITA BIST BIST Date:
2024.08.23 15:48:05 +0530 CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 3/30
4.) Documentary Evidence of the complainant: To prove his prima-facie case, the complainant has relied upon the following documents:
a.) Special Power of Attorney dated 07.06.2021 exhibited as Ex. CW1/1 (OSR).
b.) Copy of bank account statement of complainant exhibited as Ex. CW1/2.
c.) Original cheque bearing number 830372 dated 06.03.2021 exhibited as Ex. CW1/3.
d.) Original returning memo dated 10.03.2021 exhibited as Ex. CW1/4.
e.) Legal demand notice dated 23.03.2021 exhibited as Ex. CW1/5.
f.) Speed postal receipt exhibited as Ex. CW1/6.
g.) Tracking report for the legal demand notice exhibited as Ex. CW1/7.
h.) Account opening form of accused i.e Deepak Verma marked as Mark CW3/1.
5.) After perusing the complaint and hearing the argument of the Complainant on the point of summoning of the accused, prima-facie it appeared that the offence u/s 138 N.I.Act has been committed. Hence, cognizance of the offence u/s 138 N.I.Act was taken on 16.09.2021.
6.) Framing of notice and plea of defence: Notice u/s 251 Cr.P.C was framed against the accused on 10.01.2022 to which he pleaded not guilty and claimed trial. The plea of defence of the accused was recorded where he admitted his signature on cheque in question and stated that he has not filled the body of the cheque in question. He further stated that he had given the cheque in question to the complainant as blank signed cheque for the security CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 4/30 Digitally signed by KAVITA KAVITA BIST BIST Date:
2024.08.23 15:48:10 +0530 as he had taken a loan of Rs. 8,90,000/- from the husband of the complainant. He further stated that the said amount was transferred by the complainant through NEFT in his account. He further stated that he had already repaid an amount of Rs. 14,90,000/- in cash till December 2019, including the profit amount gained from his business. He further stated that he had not taken any receipt for the same and denied the liability towards the cheque in question. He also stated that he did not receive any legal demand notice issued by the complainant.
7.) Evidence of the complainant: After the framing of notice, application u/s 145(2) N.I. Act was allowed orally by the Ld. Predecessor and hence, the case was tried as a summons case and accused was granted permission to cross examine the complainant. Thereafter, the complainant was examined as CW1, adopting the pre-summoning evidence as post-summoning evidence and was cross examined and discharged. One bank witness Sh. Bijender Kumar from State Bank of India, Hauz Qazi branch as CW3 was also examined by the complainant before the court in his complainant evidence. Thereafter, complainant evidence was closed, and the matter was put up for statement of accused u/s 313 r/w Section 281 Cr.P.C.
8.) Statement of the accused: Statement of the accused was recorded u/s 313 r/w sections 281 Cr.P.C on 12.04.2023, wherein all the incriminating circumstances appearing in evidence against the accused were put to him to which, he stated that he had taken only an amount of Rs. 7 lakh from the complainant through NEFT and further stated that no amount was given to him in cash by the complainant. He further stated that he had given the cheque in question as blank signed cheque to Ravinder Kumar (fuffa ji) and not to the complainant. He further stated that he does not know how come CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 5/30 Digitally signed by KAVITA KAVITA BIST BIST Date:
2024.08.23 15:48:16 +0530 the cheque in question came into the possession of the complainant. He further stated that he had already repaid the amount taken by him from the complainant through his uncle Ravinder Kumar in cash and stated that the complainant has misused the cheque in question after filling the contents on the same. He also stated that he has not received any legal demand notice issued by the complainant. The accused also stated that he wants to lead defence evidence and the present case is a false and fabricated case.
9.) Defence evidence: The accused examined himself as DW1 and examined two more witnesses in his defence evidence as DW-2 Ravinder Kumar Verma and DW-3 Pritam Singh in the present case. Thereafter, defence evidence was closed, and the matter was put up for final arguments.
10.) Final Arguments: Final arguments were advanced by both sides. I have heard the submission of Ld. Counsel for the complainant as well as the accused. I have also perused the record.
11.) Before deciding the present complaint case u/s 138 of N.I Act, 1881, the following legal requirements must be satisfied from the averments in the complaint as well as the evidence of complainant.
a.) That a person has drawn a cheque, on an account maintained by him with the banker for payment of any amount of money in other person from out of that account for the discharge, in whole or in part, of any legally enforceable debt or other liability;
b.) That the cheque has been presented to the bank with in a period of three months from the date on which it is drawn or within the period of its validity, Digitally whichever is earlier; signed by KAVITA KAVITA BIST BIST Date:
2024.08.23 15:48:21 +0530 CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 6/30 c.) That the cheque has been returned by the drawee bank unpaid, for the reason that the amount of money standing to be credit of that account is insufficient to honor the cheque or that it exceeds the amount arranged to be paid from that account by agreement made with that bank;
d.) That the payee or holder in due course has made a demand for payment of the said amount of money by giving the notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid;
e.) That the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of the receipt of the said notice;
The aforesaid legal requirements are cumulative in nature, i.e only when all of the aforementioned ingredients are duly proved is the drawer of the cheque deemed to have committed an offence u/s 138 of N.I Act.
The provision of section 138 N.I is buttressed by section 139 and section 118(a) of the N.I. Act. Section 139 of the Act provides that the court shall presume, that the holder of a cheque received the cheque for the discharge, wholly or in part of any debt or other liability. Section 118(a) of the Act provides interalia that the court shall presume, until the contrary is proved, that every Negotiable Instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration. Digitally signed by KAVITA KAVITA BIST BIST Date:
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12.) It is a well settled principle of criminal jurisprudence that a criminal trial proceeds on the presumption of innocence of the accused i.e an accused is presumed to be innocent unless proved guilty. Thus, normally the initial burden to prove is on the complainant/prosecution to prove the guilt of the accused. Also, the standard of proof is beyond reasonable doubt. However, in offences u/s 138 of the N.I Act, there is a reverse onus clause contained in section 118(a) and section 139 of the N.I Act. The presumption u/s 139 and section 118(a) of the N.I Act mandate the court to draw them, when a given set of facts are shown to exist. The same is evident by the peremptory language "Shall presume" used. However, the said presumptions are rebuttable in nature, i.e it is open for the defence to disprove the same by establishing facts to the contrary.
In the case of Hiten P. Dayal Vs. Bratindranath Bannerjee (2001) 6 SCC 16, the Hon'ble Supreme Court had occasion to examine the confines of the presumptions u/s 139 of the Act wherein, it held as follows:
"because both section 138 and 139 require that the court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras Vs. A. Vaidyanatha Iyer AIR 1958 SC 61, it is obligatory on the court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. The obligation on the prosecution may be discharged with the help of presumptions of law or facts unless the accused adduces the evidence showing the reasonable possibility of the non existence CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 8/30 Digitally signed by KAVITA KAVITA BIST BIST Date:
2024.08.23 15:48:34 +0530 of the presumed fact. Therefore, the rebuttal does not have to be conclusive establish but such evidence must be adduced before the court in support of the defence that court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of 'prudent man'"
13.) It is a settled proposition of law that the standard of proof which is required from the accused to rebut the statutory presumption u/s 118(a) r/w section 139 of the N.I Act is preponderance of probabilities. The accused is not required to prove his case beyond reasonable doubt. This onus on the accused can be discharged from the materials available on record and from the circumstantial evidences. At this point, the Hon'ble Supreme Court in M.S Narayan Menon Vs. State of Kerala (2006) 6 SCC 39 has interalia held the following:
"The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from materials on record but also by reference to the circumstances upon which he relies."
14.) It is not always mandatory for the accused to examine its own witness in order to rebut the said statutory presumption. At this point, reliance may be placed on the decision of the Hon'ble Supreme Court in the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde AIR 2008 SC 1325, wherein the Hon'ble Court has categorically held the following:
"Accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 9/30 Digitally signed by KAVITA KAVITA BIST BIST Date:
2024.08.23 15:48:39 +0530 burden on the basis of the materials already brought on record. As accused has a constitutional right to remain silent. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different."
15.) With regard to the factors taken into account for rebutting the presumption u/s 139 r/w Section 118(a) of the Act, the Judgment of Hon'ble Delhi High Court in V.S Yadav Vs. Reena, 172 (2010) DLT 561, assumes importance, wherein, it was held that:
"Mere pleading not guilty and stating that the cheques were issued as security, would not amount to rebutting the presumption raised u/s 139 of N.I Act. The accused, by cogent evidence, has to prove the circumstance under which cheques were issued."
16.) Now, I shall proceed with the legal ingredients one by one and give my finding on whether the evidence on record satisfies the legal ingredients in question or not:-
a.) "That a person has drawn a cheque, on an account maintained by him with the banker for payment of any amount of money in other person from out of that account for the discharge, in whole or in part, of any legally enforceable debt or other liability."
16.1) This condition pertains to the issuance of the cheque itself. It is pertinent to note that the accused in his notice of accusation u/s 251 Cr.P.C as well as statement recorded u/s 313 r/w section 281 Cr.P.C has admitted his signature on the cheque in question. Further, the cheque has been drawn on the account of accused. This leads to drawing of an inference u/s 139 r/w CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 10/30 Digitally signed by KAVITA KAVITA BIST BIST Date:
2024.08.23 15:48:45 +0530 section 118 of the Act, that the cheque was issued in discharge of a legally recoverable debt or other liability.
16.2) The presumption, having been raised against the accused, it falls upon him to rebut it. The accused has taken a defence that he had given the cheque in question to the complainant as blank signed cheque for the security as he had taken a loan of Rs. 8,90,000/- from the husband of the complainant and the said amount was transferred in his account through NEFT by the complainant. He further stated that no amount was given by the complainant to him in cash. He further stated that he had repaid all the amount taken by him from the complainant through his uncle namely Ravinder Kumar in cash. He further stated that the complainant has filled the contents in the cheque in question and has misused against him in the present matter and as such denies the liability towards the cheque in question. He also stated that he did not receive any legal demand notice issued by the complainant. The accused had cross examined CW1, examined himself as DW1 and examined two more witnesses as DW-2 Ravinder Kumar Verma and DW-3 Pritam Singh in his defence.
16.3) The standard of proof for rebuttal is on preponderance of probabilities.
As held by the Hon'ble Supreme Court in decision as K.N Beena Vs. Muniyappan and Anr. (2001) 8 SCC 458, in order to rebut the presumption, mere denial by the accused will not suffice. The accused must prove by leading cogent evidence that there was no debt or liability.
16.4) Major defence led by the Ld. Counsel for accused is that the accused had given the cheque in question to the complainant as blank signed cheque for the security as the accused had taken a loan of Rs. 8,90,000/- from the CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 11/30 Digitally signed by KAVITA KAVITA BIST BIST Date:
2024.08.23 15:48:50 +0530 husband of the complainant and the said amount was transferred in his account through NEFT by the complainant. He further stated that no amount was given by the complainant to the accused in cash. He further stated that the accused had repaid all the amount taken by the accused from the complainant through his uncle namely Ravinder Kumar in cash. He further stated that the complainant has filled the contents in the cheque in question and has misused against the accused in the present matter and as such denies the liability towards the cheque in question. He also stated that the accused did not receive any legal demand notice issued by the complainant. In the present case, the onus to prove that accused has not issued the cheque in question for any legal liability in favour of the complainant primarily lied on the accused. Section 103 of Indian Evidence Act, 1872, enunciates that the person who asserts a fact must prove the same unless the law otherwise provides Now, I shall deal with all the defences separately.
The body of the cheque in question not filled by the accused The accused has stated in his notice of accusation u/s 251 Cr.P.C that he had given the cheque in question to the complainant as blank signed cheque, hence, there is a material alteration in the cheque in question. So far as the defence of filling of details by the complainant in the cheque are concerned, the same is untenable, considering the case of "Bir Singh Vs. Mukesh Kumar, 2019 (4) SCC 197 wherein the Hon'ble Supreme Court" observed and held:
"A meaningful reading of the provision of the Negotiable Instruments Act including, in particular, section 20, 87 and 139, CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 12/30 Digitally signed by KAVITA KAVITA BIST BIST Date:
2024.08.23 15:48:55 +0530 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 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. It is cheque is otherwise valid, the penal provisions of section 138 would be attracted. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence."
It is also pertinent to refer Oriental Bank of Commerce Vs. Prabodh Kumar Tewari Crl. A.No. 1260/2022, wherein the Hon'ble Supreme Court held:
"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 of the signing of the cheque can not be rebutted merely by the report of a handwriting 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." Digitally signed by KAVITA KAVITA BIST BIST Date:
2024.08.23 15:49:00 +0530 CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 13/30 In this context, it is necessary to take note of the judgment of Hon'ble Delhi High Court in Ravi Chopra Vs. State and Anr. (2008) 102 DRJ 147, wherein the Hon'ble Court held:
" A collective reading of the abovesaid provision shows that even under the scheme of the N.I. Act it is possible for the drawer of a cheque to give a blank cheque signed by him to the payee and consent either impliedly or expressly to the said cheque being filled up as a subsequent point in time and presented for payment by the drawee. There is no provision in the N.I. Act which either defines the difference in hand writing or the ink pertaining to the material particulars filled up in comparison with the signatures thereon as constituting a 'material alteration' for the purposes of section 87 N.I. Act. What however, is essential is that the cheque must have been signed by the drawer. If the signature is altered or does not tally with the normal signature of the maker, that would be a material alteration. Therefore, as long as the cheque has been signed by the drawer, the fact that the ink in which the name and figures are written or the date is filled up is different from the ink of the signature is not a material alteration for the purposes of section 87 N.I. Act."
Therefore, the plea that the details of the cheque in question was not filled by the accused is untenable in light of the above mentioned judgments.
The cheque in question was given as security cheque A contention advanced by the defence which deserved scrutiny is that the cheque in question was given as a security cheque to the complainant. Even CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 14/30 Digitally signed by KAVITA KAVITA BIST BIST Date:
2024.08.23 15:49:06 +0530 if it is assumed that the cheque in question was issued as security, by this fact alone, the presumption u/s 139 N.I Act can not be disloged. The law is settled on the point of security or advance cheque. The Hon'ble High Court of Delhi in the case of Suresh Chandra Goel Vs. Amit Singhal (2015) SCC Online DEL 6459 has observed that:
"Section 138 of N.I Act does not distinquished between a cheque issued by the debtor in discharge of his existing debt or other liability, or a cheque issued as a security cheque on the premise that on the due future date the debt which shall have crystallized by then, shall be paid. So long as there is a debt existing, in respect whereof the cheque in question is issued, in my view, the same would attract section 138 of N.I Act in case of its dishonor."
The Hon'ble Supreme court of India in Sripati Singh (D) Vs. State of Jharkhand 28.10.2021 held that:
"A cheque issued as a security pursuant to a financial transaction can not be considered as a worthless piece of paper under every circumstance. Security in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledge to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advance and borrower agrees to repay the amount in a specified time frame and issued a cheque as security to secure such repayment; if the loan amount is not repay in any other form before the due date or if there is no other understanding or agreement between the parties to defer the CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 15/30 Digitally signed by KAVITA KAVITA BIST BIST Date:
2024.08.23 15:49:12 +0530 payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplate u/s 138 and the other provisions of N.I Act would flow."
Hence, mere averment that the cheque in question was given as security in the absence of any cogent evidence is not sufficient to rebut the statutory presumption raised against the accused. Therefore, in view of the above judgments the defence taken by the accused that the cheque in question was given as security has no force.
Cheque in question was not given to the complainant One of the defence taken by the accused which requires attention of this court is that the cheque in question was never given to the complainant.
In this regard, firstly, it is important to draw attention on the cross- examination of CW1 i.e AR of the complainant, wherein the Ld. Counsel for the accused has given a suggestion to CW1 i.e AR of the complainant that the cheque in question was given as a blank cheque to one person namely Ravinder Kumar Verma and the accused has reiterated the same fact at the time of recording his statement u/s 313 Cr.P.C, wherein he has stated that the cheque in question was given as blank signed cheque to Ravinder Kumar i.e fufaji and not to the complainant and he further stated that he does not know how come the cheque in question came into the possession of the complainant.
In this regard, it is also important to draw attention on the testimony of DW2 i.e Ravinder Kumar Verma, wherein he has stated that the cheque in question CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 16/30 Digitally signed by KAVITA KAVITA BIST BIST Date:
2024.08.23 15:49:16 +0530 was handed over by the accused to him for the security of the invested amount by the husband of the complainant, however, he has also failed to divulge any details as to how come the cheque in question came into the possession of the complainant which raises doubt on his version.
It is also important to draw attention on the testimony of DW-3, wherein he has stated that the cheque in question was given to Ravinder Kumar Verma by the accused, however, he has stated that the same was not given in his presence and as such his testimony regarding the handing over of cheque in question can not be relied upon considering the same as hearsay.
It is also important to draw attention on the notice of accusation framed u/s 251 Cr.P.C, wherein the accused has stated that the cheque in question was given to the complainant.
In view of the above-said findings and considering the contradictory statement given by the accused regarding the handing over the cheque in question at different stages of trial and failure of DW2 to divulge any details as to how come the cheque in question came into the possession of the complainant from him, the defence taken by the accused that he had not given the cheque in question to the complainant seems vague and unplausible.
Part denial of alleged loan The complainant has stated in his complaint as well as in his evidence affidavit that the accused had sought a friendly loan of Rs. 10 lakh from her in April 2017 for starting some business and the complainant had agreed to give the same to the accused on his promise that the same would be returned within a period of 24 months and after considering the family relation with CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 17/30 Digitally signed by KAVITA KAVITA BIST BIST Date:
2024.08.23 15:49:22 +0530 the accused, the complainant had given an amount of Rs. 10 lakh (Rs. 8,90,000/- through NEFT and Rs. 1,10,000/- in cash) to the accused in parts, however, the accused has taken different stances regarding the same and in this regard, firstly, it is important to draw attention on the notice framed u/s 251 Cr.P.C, wherein he has stated that he had taken a loan of Rs. 8,90,000/-
from the husband of the complainant and he has also stated that the said amount was transferred in his bank account through NEFT by the complainant. Secondly, it is important to draw attention on the cross- examination of CW1, wherein the Ld. Counsel for the accused has given a suggestion to CW1 that only an amount of Rs. 8,90,000/- was given to the accused. Thirdly, it is important to draw attention on the statement recorded u/s 313 Cr.P.C, wherein, he has stated that he had taken only an amount of Rs. 7 lakh which was given by the complainant through NEFT and no amount was ever given in cash by the complainant and fourthly, it is important to draw attention on the testimony of DW1, wherien he has stated that the husband of the complainant had invested an amount of Rs. 7,90,000/- in his business in the year April 2017.
On one hand, the accused has stated that he had taken a loan of Rs. 8,90,000/- from the husband of the complainant and the same was transferred into his bank account through NEFT by the complainant, however on the other hand, he has stated that he had taken only an amount of Rs. 7 lakh from the complainant through NEFT and during his testimony he has taken altogether different stance and stated that the husband of the complainant had invested an amount of Rs. 7,90,000/- in his business in the year April 2017 which proves that the accused is himself not confident about the total amount Digitally taken by him from the complainant. KAVITA signed by KAVITA BIST Date:
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In this regard, it is also important to draw attention on the document Ex. CW1/2 i.e the bank account statement of the complainant, wherein an amount of Rs. 8,90,000/- is duly reflecting as transferred to the accused on different dates in the year 2017 as mentioned by the complainant in his complaint as well as in his evidence affidavit and the same was never disputed by the accused at any point of time, which further substantiate the claim of the complainant regarding the amount of Rs. 8,90,000/- transferred through NEFT.
As far as, the remaining amount of Rs. 1,10,000/- is concerned which was alleged to be paid in cash by the complainant to the accused, nothing substantial has emerged from the cross-examination of CW1 which can raise any doubt regarding the said amount. Moreover, the accused during his testimony has himself stated that the husband of the complainant had demanded his invested money back from him and that was around Rs. 10 lakh which further strengthen the claim of the complainant.
It is also important to draw attention on the testimony of DW-2 and DW-3, wherein DW2 has stated that the husband of the complainant had invested into the business of the accused and one oral agreement was executed between them, however, he has failed to tell the exact date, month and year of the said oral agreement and he has also stated that no transaction of the said amount took place in his presence and as such, his testimony can not be relied upon due to failure to divulge material details regarding the alleged amount and DW-3 has stated that the husband of the complainant and accused had told him that the husband of the complainant had given an amount of Rs. 7.5 lakh to the accused to invest the same in the business of accused, however, he has also stated that the said amount was never given in CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 19/30 Digitally signed by KAVITA KAVITA BIST BIST Date:
2024.08.23 15:49:35 +0530 his presence and as such, the testimony of DW-3 can not be relied upon also due to contradiction with the testimony of DW-1 i.e accused.
In view of the above-said findings and considering the different stances taken by the accused at different stages of trial regarding the total amount taken by him; considering the document Ex. CW1/2; considering the admission of Rs. 10 lakh as invested amount by the husband of the complainant by the accused in his testimony; considering the failure of DW-2 to divulge the material details regarding the alleged amount and contradictions between the testimony of DW-1 i.e accused and DW-3 Pritam Singh, the defence taken by the accused that he had not taken the alleged loan from the complainant is of no force.
All payment done One of the main defence taken by the accused which deserves close scrutiny is that he had repaid all the amount taken from the complainant in cash.
In this regard, firstly, it is important to draw attention on the notice framed u/s 251 Cr.P.C, wherein he has stated that he had repaid an amount of Rs. 14,90,000/- in cash till December 2019 including the profit amount gained from his business, however, he has stated that he had not taken any receipt of the same from the complainant.
After that the Ld. Counsel for the accused has given a suggestion to CW1 that the accused has paid a total amount of Rs. 16,49,000/- from 14.08.2017 to 26.01.2020 to the complainant in presence of Ravinder Kumar Verma. After that the accused has stated in his testimony that he had given an amount of Rs. 15 lakh (approximately) to the husband of the complainant after December 2018 which is in total contradiction with the suggestion put CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 20/30 Digitally signed by KAVITA KAVITA BIST BIST Date:
2024.08.23 15:49:40 +0530 by the Ld. Counsel for accused to CW1 and the accused has also admitted during his testimony that an amount of Rs. 1 lakh is still due upon his towards the complainant, whereas earlier he has stated that he does not have any liability towards the complainant as he had already paid all the amount to the complainant, however, during his cross-examination he has stated that only an amount of Rs. 1,20,000/- is remaining to be paid by him to the complainant and he has further stated that he had already made all the payments to the complainant towards the invested amount of Rs. 7,90,000/- in parts to the complainant in the year 2017-2018 till March 2019.
From the above-said discussion, the court is of view that the accused is himself not sure about the repayments of the loan amount taken by him from the complainant as on one hand he has stated that he had repaid the entire amount of Rs. 14,90,000/- in cash, however, on the other hand, his Counsel has given a suggestion that a total amount of Rs. 16,49,000/- has already been paid to the complainant by the accused and during his testimony he has taken altogether a different stance which is not in consonance with the suggestions put by his counsel to CW1 and as such, creates a lot of doubt on the version of the accused regarding the repayment of loan amount to the complainant.
In this regard, it is also important to draw attention on the testimony of DW2, wherein he has stated that he used to collect the profits from the accused and used to give the same to the husband of the complainant, however, he has failed to divulge material details regarding the same, as such, his testimony can not be relied upon and it is also important to draw attention on the statement of DW2, which says that the accused had not given any amount of Rs. 2 lakh and Rs. 3.5 lakh in cash to the husband of the complainant in his CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 21/30 Digitally signed by KAVITA KAVITA BIST BIST Date:
2024.08.23 15:49:46 +0530 presence, however, DW-1 i.e accused has stated that he has given an amount of Rs. 2 lakh and Rs. 3.5 lakh to the husband of the complainant in presence of Ravinder Kumar Verma i.e DW2. DW2 has also stated that he had given a total amount of Rs. 10 lakh to the husabnd of the complainant from the accused, however, DW-1 has stated that he had given an amount of Rs. 9-9.5 lakh in parts to Ravinder Verma i.e DW-2 and DW-2 had given the said amount to the husband of the complainant which is again contradictory with each other. Considering the various indiscrepancies and failure to divulge the material details regarding the amount handed over by DW-1 to the husband of the complainant, the court is of view that the testimony of DW-2 can not be relied upon.
It is also important to draw attention on the testimony of DW-3 i.e Pritam Singh, wherein he has stated that in December 2019, the accused had given an amount of Rs. 2.5 lakh to the husband of the complainant in presence of his brother and Ravinder Kumar Verma, however, DW-1 has stated that an amount of Rs. 3.5 lakh was given in cash to the husband of the complainant in presence of Ravinder Verma and Pritam Singh which is again contradictory with each other and as such, the testimony of DW-3 can not be relied upon too in the present matter.
In view of the above-said findings and considering the contradictions between the version of accused and suggestion given by the Ld. Counsel for the accused to CW-1 regarding the payment made by the accused to the complainant; contradictions of accused regarding the outstanding amount towards the complainant in his testimony and cross-examination; failure of DW-2 to divulge material details regarding the payment made through him; contradictions between the testimony of DW-2 and DW-1 regarding payment CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 22/30 Digitally signed by KAVITA KAVITA BIST BIST Date:
2024.08.23 15:49:52 +0530 made through DW-2 to the husband of the complainant and contradictions between the version of DW-3 and DW-1 regarding the payment made by the accused to the husband of the complainant, the court is of considered view that the defence taken by the accused that he had made all the payments to the complainant is a bare averment, Investment by complainant in the business of accused One of the defence taken by the accused is that the husband of the complainant had invested an amount of Rs. 7,90,000/- in his business in the year April 2017 and he used to give profit to the husband of the complainant on the above-said invested amount till December 2018 and after that the husband of the complainant had demanded his invested money back from him.
In this regard, it is also important to draw attention on the cross-examination of CW-1, wherein the AR of the complainant has stated that the amount was never given on the basis of any profit sharing by the complainant to the accused.
In this regard, it is also important to draw attention on the testimony of DW- 1, wherein the accused has stated that Ravinder Verma had approached him and the husband of the complainant had invested an amount of Rs. 7,90,000/- in his business in the year 2017 and he has further stated during his cross- examination that he used to give profits to the complainant at 7% quarterly on the invested amount, however, he has also stated that he had never taken any acknowledgment/receipt from the complainant at the time of payment. The accused has not filed any documentary proof which can substantiate the claim of the accused that the husband of the complainant had invested an CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 23/30 Digitally signed by KAVITA KAVITA BIST BIST Date:
2024.08.23 15:49:57 +0530 amount of Rs. 7,90,000/- in his business. The accused has examined two witnesses in that regard i.e DW-2 and DW-3. DW-2 has stated during his testimony that one oral agreement was executed between the accused and the husband of the complainant in his presence and it was agreed between them that the husband of the complainant would invest some amount in the business of the accused and the accused would pay the profit on the said amount to the husband of the complainant, however, he has failed to provide details of the amount invested, date, month or year of the said oral agreement and he further stated that no transaction of the invested amount took place in his presence. He furtther stated that he used to cllect profit from the accused and used to give the same to the husband of the complainant, however, he has again failed to divulge the material details regarding the same. As such, the testimony of DW-2, regarding the oral agreement of the investment done by the husband of the complainant can not be relied upon.
As far as the testimony of DW-3 is concerned, he has stated that the husband of the complainant and accused had told him that the husband of the complainant had given an amount of Rs. 7.5 lakh to the accused to invest the same in the business of accused, however, he has also stated that the said amount was never given in his presence and he has also stated that he is not aware about the date month and year of the same. As it is so apparent from the testimony of DW-3 that the whole testimony is based on hearsay only as such, can not be relied upon.
In view of the above-said findings and considering the failure of accused take any receipt/acknowledgment regarding the profit amount paid to the complainant on the invested amount as alleged by him; failure of accused to file any documentary proof to substantiate his plea regarding the above-said CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 24/30 Digitally signed by KAVITA KAVITA BIST BIST Date:
2024.08.23 15:50:02 +0530 investment; failure of DW-2 to provide material details i.e invested amount, date, month or year regarding the said oral agreement; failure of DW-2 to provide materail details regarding the handing over the amount to the husband of the complainant taken from the accused and hearsay evidence of DW-3, the court is of considered view that the defence taken by the accused that the husband of the complainant had invested an amount of Rs. 7,90,000/- in his business is a bare averment, unsubstantiated by any cogent evidence.
The upshot of the above discussion is that the said ingredient remains fulfilled in favour of the complainantin. Hence, considering the materials available on record, I am of the considered view that the accused has failed to rebut the presumption of legally enforceable debt or liability in favour of the complainant.
b.) "That the cheque has been presented to the bank with in a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;"
16.5) This requirement is satisfied on a perusal of the cheque in question Ex.
CW1/3 dated 06.03.2021 and the returning memo Ex. CW1/4 which bears the date of 10.03.2021 i.e within a period of three months from the date of issuance of cheque in question. The defence has led no evidence to controvert the same and hence, the ingredient stands fulfilled as against the accused person.
c.)"That the cheque has been returned by the drawee bank unpaid, for the reason that the amount of money standing to be credit of that account is Digitally signed by KAVITA BIST KAVITA Date:
BIST 2024.08.23
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insufficient to honor the cheque or that it exceeds the amount arranged to be paid from that account by agreement made with that bank."
16.6) Section 146 of N.I Act, 1881 provides that the court shall, on production of bank's slip or memo having therein the official mark denoting that the cheques have been dishonored, presumed the fact of dishonor of such cheques, unless and until such fact is disproved. The bank returning memo Ex. CW1/4 is on record states that the cheque in question have been returned dishonored for the reason "Funds Insufficient." The defence has led no evidence to controvert the same and the accused has also admitted the returning memo in his notice of accusation u/s 251 Cr.P.C and hence, this ingredient is also fulfilled as against the accused.
d.) "That the payee or holder in due course has made a demand for payment of the said amount of money by giving the notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid"
16.7) As regard the service of legal demand notice Ex. CW1/5, the complainant has sent the same to the accused. The original postal receipts Ex. CW1/6 along with tracking reports Ex. CW1/7 in respect of the same are already on record which shows the reason "Item delivery confirmed". The accused has denied receiving any legal demand notice in his notice of accusation as well as in his statement recorded u/s 313 r/w section 281 Cr.P.C, however, the accused has never disputed the address mentioned in the legal demand notice at any stage of trial rather the same address mentioned in the legal demand notice has been furnished by the accused in Digitally the bail bonds furnished in the present matter.
signed by
KAVITA
KAVITA BIST
BIST Date:
2024.08.23
15:50:13
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16.8) Before examining the issue in hand, it would be prudent to run through the legal position on the due service of notice sent by post. Presumption regarding successful delivery of documents sent by post can be raised by the court as per provision enshrined in section 27 of Genral Clauses Act r/w Section 114 of Indian Evidence Act 1872. In terms of section 27 of General Clauses Act, notice must be deemed to have been served in the ordinary course subject to the fulfillment of the conditions laid down therein. Section 27 reads as under;
"Where any [Central Act] or Regulation made after the commencement of this Act authorises or required any document to be served by post, whether the expression "serve" or either of the expressions "give" or "sent" or any other expression is used, then, unless a different intention appears, the service shall be deemed to the effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
16.9) Reference can be taken from the decision of Hon'ble Supreme Court in the case of Subodh S. Salaskar Vs. Jay Prakash M. Shah and Anr. (2008) 13 SCC 689 wherein the Hon'ble Court has categorically held that service of notice which is sought to be effected by speed post/registered post shall be deemed to have been served in the ordinary course within few days. Such persumption of delivery of notice can also be raised u/s 144 of Evidence Act.
16.10) After examining the legal position with respect to the service of any notice by way of registered post, it would be prudent to examine the instant CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 27/30 Digitally signed by KAVITA KAVITA BIST BIST Date:
2024.08.23 15:50:18 +0530 case in realm of the above discuss legal position. In the present case, as discussed above the legal demand notice was sent on the address of the accused which got delivered with postal remarks "Item delivery confirmed". At this point, it is pertinent to note that the accused in his plea of defence or statement recorded u/s 313 Cr.P.C has not disputed the address on which the legal demand notice was sent. He simply took the plea that he did not receive any legal demand notice issued by the complainant.
16.11) Therefore, in light of the above mentioned judgment of the Hon'ble Supreme Court, I am of the considered view that a presumption regarding delivery of service of legal notice can be raised if the notice is sent through post on correct address of the accused and if it has been returned with remarks "Item delivery confirmed". Hence, in the present case, since, the address of the accused on which legal demand notice was sent, is not disputed by the accused at any stage of trial and considering the same address mentioned in the legal demand notice furnished by the accused in the bail bonds filed in the present matter, the said address seems to be correct.
Legal demand notice in the present case was sent on the correct address of the accused through speed post, and, therefore, a presumption can be raised about its successful delivery and as accused has not lead any evidence regarding the non delivery of legal demand notice, hence, the accused has not been able to rebut the presumption of service of legal demand notice. Resultantly, the benefit of the presumption accrues in the favour of the complainant. A bare denial by the accused in his notice of accusation and statement recorded u/s 313 r/w section 281 Cr.P.C would not assume the character of defence evidence. So this ingredients is fulfilled as against the Digitally accused.
signed by
KAVITA BIST
KAVITA Date:
BIST 2024.08.23
15:50:24
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e.) That the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of the receipt of the said notice;
16.12) In the instant case, the accused has denied receiving legal demand notice, in his notice of accusation u/s 251 Cr.P.C as well as in his statement recorded u/s 313 r/w section 281 Cr.P.C. However, the accused has failed to adduce any evidence in his favour to rebut the presumption of service.
16.13) In C.C Alava Haji Vs. Palapetty Muhd. and Anr. (2007) 6 SCC 555, it was held by the Hon'ble Supreme Court "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 resepct of the complaint u/s 138 of the N.I. Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of summons from the court along with the copy of the complaint u/s 138 of the N.I.Act, can not obviously content that there was no proper service of notice as required u/s 138, by ignoring statutory presumption to the contrary u/s 27 of G.C Act and section 114 of the Evidence Act. "
16.14) Hence, regardless of the said averments in respect of non receipt of legal notice, it was open to the accused to make the payment due under the cheque in question within 15 days of service of summons of the instant case. However, the accused has admittedly failed to do so, on the ground that he does not owe any liability towards the complainant, a defence which he has CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 29/30 Digitally signed by KAVITA KAVITA BIST BIST Date:
2024.08.23 15:50:30 +0530 been able to prove at the trial. Hence, this ingredient stands fulfilled as against the accused.
17.) Decision:
As all the ingredients of the offences are cumulatively satisfied against the accused, the accused is hereby convicted of the offence u/s 138 of N.I. Act.
Copy of the judgment is handed over to the convict free of cost.
Digitally signed by Announced in the open court KAVITA KAVITA BIST Date:
on 23.08.2024 BIST 2024.08.23
15:50:39
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(Kavita Bist)
JMFC (N.I. Act) Digital Court
East Karkardooma, Courts, NewDelhi
CC No. 1568/2021 Mrs. Nidhi Verma through attorney Mr. Deepak Verma Vs. Sh. Deepak Verma Page No. 30/30