Delhi District Court
Leela Wati vs Meera Poddar on 10 December, 2024
IN THE COURT OF MS. NISHTHA MEHTANI,
JUDICIAL MAGISTRATE (NI ACT), DIGITAL COURT-03
NEW DELHI DISTRICT, PHC, NEW DELHI
1. Complaint Case : 6393/2021
number
2. Name & address of : Leela Wati
the W/o Shri Ram Swaroop
complainant House no. 336/I/ADC,
Village Munirka,
New Delhi-110067
3. Name and address : Meera Poddar,
of the accused W/o Sh. Kunj Bihari Poddar,
Block-C5, House no. C-45,
Nangli Vihar Extension,
Baprola (near Lal Public School)
New Delhi-110043.
4. Offence complained : Section 138, Negotiable Instruments
Act, 1881.
5. Plea of the guilt : Pleaded not guilty
6. Final Order : Acquitted
7. Date of institution : 20.11.2021
8. Date on which : 25.10.2024
reserved for
judgment
9. Date of judgment : 10.12.2024
Digitally
NISHTHA signed by
MEHTANI NISHTHA
MEHTANI
CC No.6393/2021 Leela Wati Vs. Meera Poddar 1
BRIEF STATEMENT OF FACTS
1. Vide this judgement, this court shall dispose of the aforementioned complaint case filed by the complainant namely Leelawati against the accused, namely Meera Poddar in respect of the dishonour of the cheque bearing no.412167 dated 14.08.2021 for an amount of Rs.6,00,000/- (Rs.Six Lakhs only) drawn on Canara Bank, branch Munirka, New Delhi-110067 (hereinafter referred to as the "cheque in question").
2. Succinctly put, it is the case of the complainant that in the month of July 2018, the accused approached the complainant with an offer that his cousin has informed her that some new flats are coming in Noida at a reasonable rate and price of the said flats shall be three times within a span of about 10 years. Complainant told the accused that she used to do stitching work and had saved certain money but she felt that putting money in property in Noida is very risky so accused went away. Thereafter again in the month of December 2018 accused approached the complainant along with two common friends and asked for her help to purchase a flat in Noida upon which complainant told that she has saved the money for her old age but on repeated requests from accused and assurance given by two common friends, she agreed to help the accused for a sum of Rs.6,00,000/- without interest with rider that the amount shall be given to accused by the complainant in six interest free instalments of Rs.1,00,000/- each against proper receipts and accused shall return the said amount by December 2020. That complainant gave the entire amount of Rs.6, 00,000/- to accused and accused issued a single receipt of the said amount on 30.06.2019.
3. That the complainant approached the accused on 30th November 2020 and asked CC No.6393/2021 Leela Wati Vs. Meera Poddar 2 Digitally NISHTHA signed by MEHTANI NISHTHA MEHTANI her to return the said amount by December 2020 as promised by accused on which accused told the complainant that by the end of January 2021 she will return the entire amount to the complainant. That in the end of January 2021 complainant again approached the accused with regard to return of money, again accused took the time till February 2021. Thereafter there were several heated exchange of words between the complainant and accused.
4. That finally with intervention of certain elderly known person it was settled that on 14.08.2021 the complainant shall visit the house of accused and accused shall hand over the cheque for Rs.6,00,000/- to the complainant and complainant shall destroy the original receipt of the accused. On 14.08.2021, the complainant went to the accused's house alongwith the receipt and the accused issued a cheque bearing No.412167 dated 14.08.2021 drawn on Canara Bank, Munirka, New Delhi in favour of complainant as full and final settlement with the assurance that the same shall be honoured as and when presented. The Complainant destroyed the original receipt in front of accused and all other persons sitting there. However, the same got dishonoured for reason- funds insufficient and non cts cheque vide its cheque returning memo dated 07.09.2021. That a legal notice was sent to the accused on 05.10.2021 through whatsapp, demanding repayment, notice was duly served upon the accused but despite that accused neither replied to the said legal demand notice nor complied the same.
5. Since the accused failed to pay the amount of the cheque in question within the statutory period of 15 days from the receipt of legal demand notice, hence, the complainant has moved this court with the present complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "NI CC No.6393/2021 Leela Wati Vs. Meera Poddar 3 Digitally NISHTHA signed by MEHTANI NISHTHA MEHTANI Act").
6. In the pre-summoning evidence, the AR of the complainant, her son, namely Mr. Harish Kumar , examined himself as CW-1 on affidavit Ex. CW1/A and placed on record certain documents i.e. original cheque dated 14.08.2021 being Ex CW-1/1, bank return memo dated 07.09.2021 being Ex. CW1/2, legal demand notice dated 27.09.2021 being Ex. CW1/3, screenshot of whatsapp service of notice dated 05.10.2021 being Ex. CW1/4 and Original SPA in favour of the AR dated 11.11.2021 being Ex. CW1/5 .
7. Upon prima facie consideration of the pre-summoning evidence, the accused was summoned vide order dated 24.12.2021.
8. Upon appearance of the accused, notice under Section 251, Cr.P.C. was served upon him on 05.04.2022 to which he pleaded not guilty and claimed trial. At this stage, he admitted that the cheque in question belonged to him which he issued to the complainant and also admitted his signatures on the same. He further stated that the address on the legal demand notice is correct except for the house number. He submitted that his correct house number is 207, however admitted that the demand notice was received on the whatsapp number of his son. He also stated that he had no transaction with the complainant, never took any loan from her or gave the cheque in dispute to her. He said that the son of complainant, namely Mr. Harish used to run a society namely Hare Krishna Society and he gave the cheque in dispute to him for becoming a member in the said society 14-15 years ago that has been misused .
Digitally CC No.6393/2021 Leela Wati Vs. Meera Poddar NISHTHA signed by 4 MEHTANI NISHTHA MEHTANI
9. At this stage, admission and denial of documents under Section 294 Cr.P.C was also conducted whereby the accused admitted the genuineness and correctness of the cheque in question, bank return memo and all the other documents relied upon by the complainant.
10.The AR who deposed as CW-1 adopted his pre summoning evidence affidavit at the post summoning stage. He also additionally relied upon internet generated tracking report Ex. CW1/6. Thereafter the application under Section 145(2) NI Act moved on behalf of the accused was allowed on the same day and the AR of the complainant was re-called for his cross-examination. During his cross examination, he was confronted with the copy of whatsapp chat which was identified as Ex. CW-1/D1. He was duly cross-examined by Ld. Counsel for the accused and discharged. Since no other witnesses were sought to be examined by the complainant, complainant evidence was closed vide separate statement of the AR of the complainant dated 01.12.2022 .
11. Statement of accused under Section 313 read with Section 281 Cr.P.C was recorded on 17.01.2023 whereby the entire incriminating evidence was put to him. At this stage, the accused primarily maintained his plea of defence raised at the stage of framing of notice under Section 251 Cr.P.C. He further stated that in 2005, he had bought a plot in Nagli Dairy and by the year 2015, construction of his house was complete and since then he has been living in Nagli Dairy. He further stated that he never bought any flat either in Nagli Dairy or in Noida and when he asked Harish Kumar to return his cheque he did not return the same. Since, Harish Kumar was not returning his cheque, he visited his bank and got all his cheques cancelled 5-6 years ago. He also mentioned that the demand Digitally CC No.6393/2021 Leela Wati Vs. Meera Poddar NISHTHA signed by 5 MEHTANI NISHTHA MEHTANI notice was sent on the Whatsapp of his son and the address was incorrectly mentioned.
12.Since the accused chose to lead defence evidence, the application under section 315 CrPC was allowed on 02.03.2023. Witness no. 2 Alok Ranjan was allowed on the same day. Witness no.3 Munna Khan and Witness no. 4 The Senior Bank Manager of the complainant and accused's bank was allowed on 21.04.2023. Witness no.5 Ravi Kant Gautam was thereafter allowed on 08.12.2023.
13.At the stage of defence evidence, accused examined himself as DW-1 and additionally examined four other witnesses in order to establish his defence. He was duly cross-examined by Ld. Counsel for the complainant and discharged.
14.Accused also examined her son Sh Alok Ranjan as DW-2 who deposed in her favour. During his examination in chief, he relied upon a video recording i.e. Ex. DW-2/1 and the certificate under section 65-B of the Indian Evidence Act i.e. Ex.DW-2/2.He was duly cross examined by the Ld. Counsel for the complainant and discharged. Accused then examined one Munna Khan as DW- 3, who deposed in her favour. He was duly cross-examined by Ld. Counsel for the complainant and discharged.
15.Accused then examined the Senior Manager from his bank i.e. Canara Bank, Munirka Branch as DW-4. During the course of his examination-in-chief, DW-4 relied upon the bank statement for the period 01.04.2017 to 31.03.2021 and the account opening form of the complainant which was taken on record as Ex. DW4/1 (Colly). He also relied upon the bank statement for the same period and the account opening form of the accused which was taken on record as Ex. DW4/2 (Colly). Despite opportunity, the witness was not cross examined. He was then discharged.
Digitally CC No.6393/2021 Leela Wati Vs. Meera Poddar NISHTHA signed by 6 MEHTANI NISHTHA MEHTANI
16.Accused lastly examined one Sh. Ravi Kant Gautam as DW-5 who deposed in her favour. During his examination in chief, he relied upon the receipts qua the loan i.e. Ex. DW-5/1 (colly 3 pages) and the certified copy of the evidence of the AR recorded in CC No. 15800/20128 i.e. Ex.DW-5/2.He was duly cross examined by the Ld. Counsel for the complainant and discharged.
17.Since no other witness was sought to be examined in defence, DE was closed vide separate statement of the accused dated 08.12.2023 . Thereafter, the matter was adjourned for advancement of final arguments.
18.Final arguments were heard on 24.05.2024 and 13.08.2024.Time was sought by the accused to file witten arguments. Written submissions were filed on behalf of both the complainant and the accused.
19.Rival submissions have been considered and record of the case has been carefully perused.
20.Defence of the accused primarily is two fold. Firstly, that there is no legally enforceable debt or liability to the tune of the amount of the cheque in question in favour of the complainant and against the accused as on the date of its drawl or presentation as there was no loan that was ever advanced to the accused and secondly, that the AR did not have the authority to file the present complaint
21.Before delving into the facts of the present case, it is relevant to discuss the law applicable to the present proceedings.
LEGAL POSITION:
22.In order to constitute an offence u/s.138 of the Negotiable Instruments Act, 1881, the following legal requirements must be satisfied from the averments in the Complaint as well as the evidence of the Complainant: -
CC No.6393/2021 Leela Wati Vs. Meera Poddar Digitally 7 NISHTHA signed by MEHTANI NISHTHA MEHTANI
(a) a person must have drawn a cheque, on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge, in whole or in part, of any legally enforceable debt or other liability;
(b) that the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(c) that the cheque has been returned by the drawee bank unpaid, either for the reason that the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank;
(d) that the payee or the holder in due course of the cheque has made 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 from the bank regarding the return of the cheque as unpaid;
(e) that the drawer of such cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice.
23.The legal requirements mentioned hereinabove are cumulative in nature, i.e. only upon fulfillment of all the aforementioned ingredients, the drawer of the cheque is deemed to have committed an offence under s. 138 of the Negotiable Instruments Act.
Digitally CC No.6393/2021 Leela Wati Vs. Meera Poddar NISHTHA signed by 8 MEHTANI NISHTHA MEHTANI
24.The provision of Sec.138 is further supported by Sec.139 and Sec.118 of the Act. Sec. 139 of the Act provides presumption in favour of the Complainant and mandates that the court shall presume, that the holder of a cheque received the cheque of the nature referred to in Sec.138 for the discharge, wholly or in part of any debt or other liability. Sec.118 of the Act provides presumptions as to negotiable instruments; 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.
25.Elaborating further on this point, the Apex Court in Basalingappa v. Mudibasappa(2019) 5 SCC 418 summarised the law. The following was laid down in para 25: (SCC p. 433-434) "25. We have noticed the ratio laid down by this Court in the above cases on sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:
25.1. Once the execution of cheque is admitted section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2 The presumption under section 139 is a rebuttable presumption and the onus is on the Accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3 To rebut the presumption, it is open for the Accused to rely on evidence led by him or the Accused can also rely on CC No.6393/2021 Leela Wati Vs. Meera Poddar Digitally 9 NISHTHA signed by MEHTANI NISHTHA MEHTANI the materials submitted by the Complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
25.4 That it is not necessary for the Accused to come in the witness box in support of his defence, section 139 imposed an evidentiary burden and not a persuasive burden. 25.5 It is not necessary for the Accused to come in the witness box to support his defence.
26.What emerges from the abovesaid discussion is that the offence u/s 138 of the Negotiable Instruments Act operates on reverse onus of proof theory; once a given set of facts are shown to exist, the presumptions u/s 139 and Sec.118 of the Act mandate the court to draw them. The same is evident by the language used, i.e., "Shall Presume". However, the said presumptions are in the nature of rebuttable presumptions, i.e. it is open for the defence to shift the onus on the Complainant by raising a probable/ plausible defence.
APPRECIATION OF EVIDENCE AND FINDINGS:
27. I shall now proceed to analyse the legal elements involved in this case, evaluating whether the oral and documentary evidence satisfy the legal requirements. Concerning ingredients no. two and three, these are evidently satisfied by examination of the cheque in question (Ex. CW1/1) dated 14.08.2021 for Rs. 6,00,000/- and the return memo (Ex. CW1/2) dated 07.09.2021 indicating "funds insufficient" as one of the reasons for the CC No.6393/2021 Leela Wati Vs. Meera Poddar Digitally 10 NISHTHA signed by MEHTANI NISHTHA MEHTANI dishonour of the cheque. The defence has presented no contrary evidence; hence, these ingredients stand established against the Accused.
28.It is a trite law that in order to maintain a complaint u/s-138 NI Act, serving of legal demand notice to the Accused before filing the case is imperative. As regards the service of legal demand notice, the Complainant has sent the same, being Ex. CW1/3 dated 27.09.2021 to the Accused on the whatsapp messenger.
The accused at the time of the framing of notice under section 251 Cr.P.C, in his statement under section 313 Cr.P.C and also at the time of his examination in chief as DW-1, has admitted the receipt of the same on the whatsapp number of his son but the address on the same has been stated by him to be only partially correct.
29. Even otherwise, in the precedent set by the Hon'ble Supreme Court in C.C.Alavi Haji vs. Palapetty Muhammed [2007 (6) SCC 555] it has been categorically held that a person who does not pay the amount of cheque within 15 days of receipt of the summons from the Court along with a copy of the complaint under Section 138 of the Act, cannot contend that there was no proper service of notice as required under Section 138. Resultantly, the fourth ingredient stands fulfilled as against the Accused.
30.The fifth ingredient also stands satisfied against the Accused as in the instant case, it is an admitted position that the Accused has failed to pay the amount due under the cheque in question, on the ground that he does not owe any liability towards the Complainant.
31. In view of the above, the only point for determination in the present matter remains is that of existence of legally enforceable debt or liability for which the cheque in question was issued by the Accused, i.e., the first ingredient.
32.As per the ratio laid down by Hon'ble Supreme Court of India in Basalingappa CC No.6393/2021 Leela Wati Vs. Meera Poddar 11 Digitally NISHTHA signed by MEHTANI NISHTHA MEHTANI Vs. Mudibasappa (2019) 5 SCC 418 supra., the presumption under Section 118(a) r/w 139 of the Act, has to be compulsorily raised against the accused once the execution of cheque by the accused is either admitted or proved by the complainant, and thereafter, the burden shifted upon the accused to prove otherwise. These presumptions shall be rebutted only when the contrary is proved by the accused i.e the cheque was not issued for consideration, and in discharge of any debt or liability.
33.In the present case, accused has admitted his signatures on the cheque in question. Reference in this regard can also be made to judgement of the Hon'ble Apex Court in Rangappa Vs. Mohan AIR 2010 SC 1898, that once the signatures in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can be legally inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability.
34.In view of the foregoing discussions, this Court is of considered opinion that a presumption under Section 139 r/w 118(a) NI Act duly be raised against the accused.
35.Since the above said two presumptions have duly been raised against the accused, our next point of determination is that whether the accused is able to rebut the abovesaid presumptions or not. It is now settled law that accused can rebut these presumptions on a scale of standard of preponderance of probabilities, or to rebut these presumptions, it is open for the accused to rely upon the direct evidence led by himself, or in exceptional cases, the accused can also rely on materials submitted by the complainant in order to raise a probable CC No.6393/2021 Leela Wati Vs. Meera Poddar Digitally12 NISHTHA signed by MEHTANI NISHTHA MEHTANI defence. Reliance in this regard, can be placed on judgement of Hon'ble Supreme Court of India in the case of Hiten P.Dalal Vs. Bratindranath Banerjee (2001) 6 SCC, wherein it was stated that :
"............Because both sections 138 and 139 require that the Court 'shall presume' the liability of the drawer of the cheque for the amount for which the cheque are drawn,.... 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 shift the onus on the accused. Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court 'may presume' a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of non-existence of the presumed fact.
In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against who the presumption is drawn from rebutting it and proving the contrary. The rebuttal does not have to be conclusively established but such evidence must be a dude before the court in support of the defence that the court must either believe the defence to exist or consider its CC No.6393/2021 Leela Wati Vs. Meera Poddar 13 Digitally NISHTHA signed by MEHTANI NISHTHA MEHTANI existence to be reasonably probable, the standard of reasonability being that of a 'prudent man'."
36.As regards the rebuttal of mandatory presumptions, it is also settled law that the presumption under Section 139 of the NI Act cannot be rebutted upon a mere denial but only by leading cogent evidence. Same was held by the Hon'ble Supreme Court of India in the decision cited as K.N. Beena Vs. Muniyappan and Another; (2001) 8 SCC 458. Further, the presumptions may be rebutted by the accused either by leading direct evidence and in exceptional cases, from the case set out by the complainant himself i.e. from the averments in his complaint, in the statutory notice and even the evidence adduced by the complainant during the trial. The burden of proof is to be discharged by the accused on a scale of 'preponderance of probabilities'. Same was held by the Hon'ble Supreme Court in the decision cited as M/s Kumar Exports Vs. M/s Sharma Carpets; 2009 AIR (SC) 1518. It is also a settled law that the statements made by the accused in reply to notice under Section 251 Cr.P.C. or in his examination under Section 281 read with Section 313 Cr.P.C. are not on oath and hence are not substantive pieces of evidence. At best, they may be an explanation of the incriminating circumstances against the accused but are devoid of any presumption as to their truthfulness. Support is drawn from the decision of the Hon'ble High Court of Delhi cited as V.S. Yadav Vs. Reena; 172 (2010) DLT
561. Supra
37.In the backdrop of legal position as enunciated above, it is now to be examined by this Court that whether the accused on a scale of preponderance of CC No.6393/2021 Leela Wati Vs. Meera Poddar Digitally 14 NISHTHA signed by MEHTANI NISHTHA MEHTANI probabilities has been able to rebut the presumptions which has been raised against him and in favour of the complainant, or has been able to demolish the case of the complainant to such extent to shift the onus placed upon the accused back again on the complainant, and if the Court comes to the conclusion that accused has not been able to rebut the presumptions raised against him by failing to bring on record direct evidence or by even failing to sufficiently perforate the case of the complainant, the complainant is entitled to a decision in his favour. The fundamental issue to be addressed is whether the Accused has effectively put forward a credible defense to overturn the presumption against him. The Defences taken by the accused are as follows:-
ABSENCE OF A LEGALLY ENFORCEABLE DEBT/LIABILITY.
38.In order to rebut the mandatory presumptions, the accused has raised a defence that there is no legally enforceable debt or liability to the tune of the amount of the cheque in question against him and in favour of the complainant as on the date of its issuance or presentation.
39.Ld. Counsel for the accused argued that the AR of the complainant used to run a chit fund society namely hare Krishna society from last 20 years and the cheque in question was given by the accused to him for becoming the member of this said society back in the year 2006. He further stated that no loan amount was ever given by the complainant to the accused and the whole case is based on false hood as the son of the complainant i.e. the AR has misused the cheque in question. Ld. Counsel for the accused further argued that the source of the funds and the financial capacity to advance the supposed loan amount has not been explained by the complainant. He further pointed out that in the complaint, the Digitally NISHTHA signed by CC No.6393/2021 Leela Wati Vs. Meera Poddar MEHTANI NISHTHA 15 MEHTANI complainant has stated that the alleged loan amount was given to the accused from her fixed deposits. However no documentary proof whatsoever has been placed before the court to establish that the fixed deposits were withdrawn by the complainant from her bank which strengthens the defence of the accused that no loan was ever given to the accused.
40.The ld Counsel for the accused further tried to show the improbability of the case of the complainant by highlighting the discrepancies in the legal demand notice sent by the complainant to the accused. He stated that as per the legal demand notice the complainant helped the accused by granting him loan for purchasing a house in nangli vihar extension. However the complaint mentions that the complainant granted the loan to the accused for purchasing a flat in Noida. The counsel for the accused stated that such contradictions in the case of the complainant further confirms that the entire case of the complainant is based on a concocted story. The counsel for the accused further argued that no date ,month or year of the advancement of the alleged loan is mentioned in the complaint which makes the story of the complainant all the more doubtful.
41. He relied upon the following judgments:-
i) A.S. Duraisami Chettiar Sons vs. Ratnaswami Gounder . AIR 1992 MAD
132.
ii) Kishore Samrite vs. State of U.P. 2012 AIR SCW 5802.
iii) Amzad Pasha vs. H.N. Lakshmana. AIR 2011 (NOC) 75 (KAR)
iv) Vipul kumar Gupta vs. Vipin Gupta. Crl.L.P.No. 461/2011 passed by Hon'ble High Court of Delhi.
v) Rangappa vs. Sri Mohan AIR 2010 SC 1898,
42.Per contra, Ld. Counsel for the complainant argued that non production of the bank account statements of the complainant is not fatal to the case of the Digitally NISHTHA signed by CC No.6393/2021 Leela Wati Vs. Meera Poddar MEHTANI NISHTHA MEHTANI 16 complainant. He also submitted that the accused has made false assertions with respect to the existence of a society namely Hare Krishna society being run by the complainant just to evade his liability towards the complainant and has not been able to prove his membership in the same. He also argued that all the contradictions in the complaint and the legal demand notice are minor contradictions due to lapse of time and are not material contradictions which may render his entire testimony untrustworthy. He further argued that the mandatory presumption regarding the existence of a legally enforceable debt or liability to the tune of the amount of the cheque in question is resting in favour of the complainant which the accused has failed to rebut and hence he deserves to be convicted.
43.He relied upon the following judgments:-
i) Vijender Singh vs. M/S Eicher Motors Limited & Anr. CRL.M.C.NO.
1454/2011 passed by Hon'ble High Court of Delhi
ii) Rohitbhai Jivanlal Patel vs. State of Gujarat & Anr. (2019) 18 SCC 106.
iii) Sumeti Vij vs. M/S Paramount Tech fab industries. Criminal Appeal No. 292/2021 passed by Hon'ble Supreme Court of India.
44.This court has patiently heard both the parties and has carefully gone through the entire record. Apropos this defence of the accused, this court has arrived at the following findings:
44.1 a) The AR of the complainant has failed to establish the financial capacity and source of funds for advancing the loan amount of Rs.6,00,000/- to the accused . In fact, the AR of the complainant categorically refused to produce the complainant's bank account statement when a question was put in this regard during the course of his cross-examination. The relevant portion of his cross-
CC No.6393/2021 Leela Wati Vs. Meera Poddar Digitally 17 NISHTHA signed by MEHTANI NISHTHA MEHTANI examination conducted on 01.12.2022 is reproduced as under;
"it is correct that my mother advanced the loan amount to the accused after withdrawing the same from her fixed deposits. Complainant has not placed any bank statement qua the withdrawal of the said money/FDR. I cannot bring the same"
An adverse inference can safely be drawn against the complainant in terms of illustration (g) under Section 114 of the Indian Evidence Act, 1872 which enunciates the rule that the evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it.
44.1.1. Also in this regard, it is pertinent to note that the accused examined the bank manager of the complainant's bank who had brought the bank account statement of the complainant from the period 01.04.2017 to 31.03.2021 i.e. Ex DW 4/1, perusal of which shows that no Fixed deposit was withdrawn by the complainant in the relevant period.
It is the settled position of law that in cases in which the debt transaction is a cash transaction, the accused can raise a probable defense by questioning the financial capacity of the complainant, and once the said question is raised, the onus shifts on the complainant to prove her financial capacity. Reliance in this regard is placed upon the decisions of Hon'ble Supreme Court in APS Forex Service Private Limited Vs. Shakti International Fashion Linkers AIR 2020 SC 945 and Basalingappa Vs. Mudibasappa, (2019) 5 SCC 418.
Thus, in the considered opinion of the court, the AR of the complainant has utterly failed in proving the financial capacity to disburse the loan amount of Rs. 6 lakhs to the accused.
44.2. b) A bare perusal of the complaint, the evidence by way of affidavit filed on behalf of CW-1 and the legal demand notice i.e. Ex.CW-1/3 reveals that the CC No.6393/2021 Leela Wati Vs. Meera Poddar Digitally 18 NISHTHA signed by MEHTANI NISHTHA MEHTANI complainant is utterly confused regarding the accusations levelled against the accused therein. In para 4 of the complaint, the complainant has categorically stated that the accused approached her for financial help with respect to the purchase of a flat in Noida and the complainant agreed to help her by giving her the loan amount. However in the legal demand notice EX. CW-1/3, it is mentioned that the complainant helped the accused financially for purchasing of a house in Nangli Vihar Extention. Such mutually exhaustive narratives set up by the complainant in the case at hand smells of something fishy and the possibility that complete and true facts have not been disclosed by the complainant can not be ruled out. A bare perusal of the complaint in contrast with the legal demand notice is itself sufficient to probablise the defence of the accused that no amount was ever given as a loan to the accused by the complainant. The contradictions as pointed out by Ld. Counsel for the accused are certainly material as they hit at they very factum of advancement of the loan in question. Hence, the version of the complainant does not inspire the confidence of the court and renders his testimony less believable and unworthy of credit.
44.3. c) The complainant has also failed to disclose the material details about the loan transaction i.e. the exact date and time of advancement , schedule of repayment etc. Relevant portion of the cross- examination of the AR of the complainant conducted on 01.12.2022 is also reproduced as under:-
"The date of advancement of alleged loan is not mentioned in the complaint as well as in legal notice."
It is also important to note that any prudent person giving an amount of Rs. 6 Lacs as loan to someone would normally execute a document to this effect in the presence of a witness. The complainant has stated in the complaint that the accused CC No.6393/2021 Leela Wati Vs. Meera Poddar Digitally 19 NISHTHA signed by MEHTANI NISHTHA MEHTANI approached the complainant for the financial help with two common friends. It is also stated that once the loan was advanced, a single receipt of Rs 6 lakhs was issued by the accused on 30.06.2019 and the same was destroyed by the complainant when the cheque in question was handed over to the complainant at the house of the accused on 14.08.2021 in the presence of three elderly known persons and the family members of the accused. None of the above stated people were examined as a witness by the complainant and no such receipt was brought on record. Absence of a document and witnesses to the alleged loan transaction further fortifies the defence version that the alleged loan transaction to the tune of Rs.6,00,000/- never took place between the parties. Reliance is placed upon the judgment in a case titled as Vijay Vs. Laxman and Anr., (2013) 3 SCC 86, wherein the Hon'ble Supreme Court of India observed as follows:
"the absence of any details of the date on which the loan was advanced as also the absence of any documentary or other evidence to show that any such loan transaction had indeed taken place between the parties is a significant circumstance."
44.4 d) The accused has further solidified his version by examining DW-5 who has brought on record the certified copy of the cross examination of the AR of the complainant Mr. Harish Kumar conducted on 04.09.2021 in CC No. 15800/2018. Perusal of the same reflects that the AR has categorically mentioned that he has no transaction with the accused in the present or in the past. The AR has not acknowledged the disbursement of the alleged loan amount by his mother to the accused which is the basis on which the entire case of the complainant rests. Hence, this testimony of the AR of the complainant further confirms that the allegations against the accused are mere bald assertions based on falsehood.
Digitally NISHTHA signed by MEHTANI NISHTHA MEHTANI CC No.6393/2021 Leela Wati Vs. Meera Poddar 20
45.In view of the aforesaid discussion, it is clear that the case of the complainant is nothing but a flowery set of submissions put together without any cogent evidence adduced in their support. On the other hand, the accused has clearly presented a defence that is more probable than the complainant's story and as per the settled law, this is all that is required as preponderance of probabilities is not a rigorous standard of proof, but only so much evidence as makes the court lean in favour of one side and not the other. Consequently, the benefit of doubt must go to the accused.
46.In the considered opinion of this court, and in the light of the above discussion, the accused has been able to cast a shadow of reasonable doubt upon the case of the complainant on a scale of preponderance of probabilities and has thus been successful in rebutting the presumption of existence of debt or liability raised in favour of the complainant under Sections 118 and 139 NI Act.
47.The onus has now shifted back upon the complainant to prove the second ingredient of the offence under Section 138 NI Act, regarding the issuance of the cheque in question for any legal debt or other liability equivalent to the amount mentioned therein. Since the complainant has not taken any steps thereafter to prove the case beyond reasonable doubt qua the liability of the accused on the date of the presentation of the cheque in question being equal to the amount mentioned therein, this court has fairly arrived at the conclusion that the complainant's case does not stand on its own legs.
48. As this basic ingredient which is pivotal to attract liability under Section 138 NI Act has not been proved by the AR of the complainant , accordingly, no offence of dishonour of the cheque in question under the said Section is made out against against the accused. There is hence no requirement to delve into a discussion on other defences of the accused.
Digitally CC No.6393/2021 Leela Wati Vs. Meera Poddar NISHTHA signed by 21 MEHTANI NISHTHA MEHTANI FINAL ORDER
49.In view of the aforesaid discussion, accused Meera Poddar w/o Sh. Kunj Bihari Poddar is hereby acquitted of the offence under Section 138, Negotiable Instruments Act, 1881.
Digitally
NISHTHA signed by
MEHTANI NISHTHA
MEHTANI
Announced in open (Nishtha Mehtani)
Court on 10.12.2024 JMFC (First Class) (NI Act)
Digital Court-03,PHC,NEW DELHI
This judgment contains 22 signed pages and each page has been signed by the undersigned.
CC No.6393/2021 Leela Wati Vs. Meera Poddar 22