Delhi District Court
Pritam Singh vs . Meera Adhikari on 30 April, 2012
CC.No. 402/A/10
Pritam Singh vs. Meera Adhikari
IN THE COURT OF VIPLAV DABAS
METROPOLITAN MAGISTRATE
DISTRICT-NORTH, TIS HAZARI COURTS, DELHI
Sh. Pritam Singh Date of institution of case : 10.01.2007
Vs Date of decision of case : 30.04.2012
Ms. Meera Adhikari
Unique ID No.02401R0014892007
CC.No. 402/A/10
P.S.- Kirti Nagar
U/S 138 Negotiable Instrument Act
JUDGMENT
1. Date of the commission of offence : 05.12.2006
2. Name & address of the complainant : Ms. Pritam Singh,
R/O 15/23, Tilak Nagar,
Delhi-110018.
3. Name & address of the accused : Ms. Meera Adhikari
D/o Brig S. N. Adhikari,
R/O Q- 319, Jalvayu Vihar,
Sector-21, Noida,
Gautam Budh Nagar, U.P.
4. Offence complained of : U/s.138 of Negotiable Instruments
Act
5. Plea of accused & examination if any : Pleaded not guilty.
Examination U/s. 313 and 315 Cr.P.C.
Defence evidence was led
6. Final order : Acquitted
7. Date of such order : 30.04.2012
1/20
CC.No. 402/A/10
Pritam Singh vs. Meera Adhikari
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, this court shall decide the complaint case under section 138 Negotiable Instruments Act, 1881 (as amended upto date) filed by the complainant Pritam Singh against the accused Meera Adhikari.
2. Brief facts necessary for the disposal of the present case as per the allegations in the complaint, are as follows :-
That the accused approached the complainant for a friendly loan in order to meet her needs. The complainant on the assurance of the accused to repay the same advanced a cash loan of Rs. 1,00,000/- (Rupees One Lakh only). On the repeated request of the complainant, the accused issued the cheque bearing no. 714764 dated 10.10.2006 for a sum of Rs. 1,00,000/- drawn on " Central Bank, Ashoka Hotel, Delhi-110021" for the repayment of the said loan. That the complainant presented the above said cheque with his banker i.e. "P. & S. Bank Mansarover Garden, New Delhi" and the said cheque was dishonored on 30.10.2006 with the remarks "FUNDS INSUFFICIENT". The complainant issued a legal notice of demand dated 18.11.2006 to the accused through his lawyer which was sent by Registered post & UPC on 18.11.2006 thereby calling upon the accused to make the payment of the cheque amount. It is alleged that accused has failed to pay any sum in response to the legal notice of demand. As a result of which the complainant filed the instant complaint for prosecution of the accused under section 138 of the Negotiable Instruments Act, 1881.
3. After considering the entire material and documents on record, summons were issued my Ld. Predecessor against the accused vide order dated 17.10.2007 for the offence punishable u/s 138 of the Negotiable Instruments Act, 1881. On appearance of the accused, a separate notice u/s.251 of the Code of Criminal Procedure, 1973 was served upon the accused on 18.08.2008, to which accused pleaded not guilty and claimed trial.
2/20CC.No. 402/A/10 Pritam Singh vs. Meera Adhikari
4. In order to prove the case, Sh. Pritam Singh complainant got himself examined as CW1 by filing an affidavit of evidence EX.CW-1/Z and relied upon the duly exhibited documents i.e original cheque, cheque returning memo, legal notices of demand dated 18.11.2006, postal receipt and promissory note. Sh. Pritam Singh, complainant was cross examined by learned counsel for the accused. The complainant preferred to examine Sh. Parminder Singh S/o Sh. Sardar Harbans Singh, who was examined, cross examined and discharged. Thereafter, the complainant's evidence was closed upon the statement of the learned counsel for the complainant.
5. Subsequent to this the statement of accused was recorded u/s 313/281 of the Code of Criminal Procedure, 1973 in which all the incriminating evidence alongwith exhibited documents were put to the accused Ms. Meera Adhikari. The accused stated that she had taken a loan of Rs. 50,000/- from Mr. Parminder Singh who was the proprietor of Rajdhani Financial services. Accused stated that she had repaid Rs. 20,000/- to Mr. Parminder Singh of which she had documentary proof and the amount of Rs. 30,000/- has been paid to him by cash. Accused further stated that the promissory Note EX.CW-1/5 was taken blank from her and the same was neither filled by her nor in her presence. It is further stated by the accused that she even did not know the complainant prior to the present complaint and there is no transaction whatsoever with the complainant. Accused further stated that the complainant has filed the present complaint to extort money from her.
6. Opportunity for leading the defence evidence was given to accused. The accused herself entered into witness box and was examined, cross examined and discharged. Accused summoned her banker also who was cross examined and discharged. Defence evidence was closed upon recording the statement of the accused.
7. The court heard the arguments advanced by the learned counsels and perused the entire record of the case file as well as evidence on record.
3/20CC.No. 402/A/10 Pritam Singh vs. Meera Adhikari Legal Discussion
8. Before proceeding further, it would be appropriate to quote the Hon'ble Supreme Court in Rangappa Vs. S.Mohan arising out of SLP (Crl) No.407/2006 (2010) NSC 373 decided on 07.05.2010. :
"Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by section 139 of the Act."
8.1 In order to bring home the conviction of the accused, the complainant has to prove the ingredients of the offence complained of. The main ingredient of Section 138 of the Negotiable Instruments Act, 1881 are as follows:
i. The accused issued cheque on an account maintained by him with a bank.
ii. The said cheque has been issued in discharge of any legal debt or other liability.
iii. The cheque has been presented to the bank within the period of six months from the date of the cheque or within the period of its validity.
iv. When the aforesaid cheques were presented for encashment, the same were returned unpaid/dishonoured.
v. The payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
vi. The drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.
If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/s. 138 of the Negotiable Instruments Act, 1881.4/20
CC.No. 402/A/10 Pritam Singh vs. Meera Adhikari Offence u/s 138 Negotiable Instruments Act is a technical offence, which involves a reverse onus clause and the reverse onus can be rebutted by raising a mere preponderance of probability.
8.2 Nature and Extent of Rebuttal
a) A three judges bench of Hon'ble Supreme Court while dealing with presumptions under Prevention of Corruption Act has observed in Trilok Chand Jain vs State Of Delhi 1977 AIR 666 as under:
"The presumption however, is not absolute. It is rebuttable. The accused can prove the contrary. The quantum and the nature of proof required to displace this presumption may vary according to the circumstances of each case. Such proof may partake the shape of defence evidence led by the accused, or it may consist of circumstances appearing in the prosecution evidence itself, as a result of cross-examination or otherwise. But the degree and the character of the burden of proof which s. 4(1) casts on an accused person to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof which under s. 101, Evidence Act rests on the prosecution.. While the mere plausibility of an explanation given by the accused in his examination under s. 342, Cr.P.C. may not be enough, the burden on him to negate the presumption may stand discharged, if the effect of the material brought on the record, in its totality, renders the existence of the fact presumed, improbable. In other words, the accused may rebut the presumption by showing a mere preponderance of probability in his favour; it is not necessary for him lo establish his case beyond a reasonable doubt- see Mahesh Prasad Gupta v. State of Rajasthan.
Another aspect of the matter which has to be borne in mind is that the sole purpose of the presumption under s. 4(1) is to relieve the prosecution of the burden of proving a fact which is an essential 5/20 CC.No. 402/A/10 Pritam Singh vs. Meera Adhikari ingredient of the offences under s. S (1) (2) of the Prevention of Corruption Act and s. 161, Penal Code. The presumption therefore can be used in furtherance of the prosecution case and not in derogation of it. If the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception, if out of judicial courtesy it cannot be rejected out of hand as still born."
b) To what extent a mere reliance upon the presumptions of law can help the complainant is being discussed in the following paragraphs:-
Hon'ble High Court of Bombay in Peter Mascarenhas Vs. Monsabre Ashley Oswald Dias, CCC X-2010(4) 234 has dealt with the above aspect in great detail. This was also a case of friendly loan of Rs. 12 lakhs which the complainant had lent to the accused after collecting the same from several other persons. Complainant had examined the persons from who he collected the amount. There was also an agreement executed by the accused person. However, after a detailed factual and legal discussion, Hon'ble High Court has acquitted the accused primarily on the ground that complainant has failed to discharge his onus to establish accumulation of money. It has been observed therein that:
"In juxtaposition though the Complainant was faced with the aforesaid material which has come through the cross examination of Cw.2, Cw. 3 and Cw.4, the Complainant did not choose to lead any further evidence to discharge the burden of proving the existence of the liability when the burden again shifted to him. Applying the principles that the Complainant has to prove the offence beyond reasonable doubt but the Accused has to only probabilise his defence, in my view, the test has been satisfied by the Accused then the Complainant. The Complainant as can be seen has not led any further cogent evidence to prove the factum of the lending of the money to the Accused and thereby has not discharged the burden which had shifted to him on 6/20 CC.No. 402/A/10 Pritam Singh vs. Meera Adhikari account of the evidence which has come in cross examination of the Complainant and his witnesses."
c) Hon'ble Supreme Court in K. Prakashan vs P.K. Surenderan decided on 10 October, 2007 has also dealt with the aspect of friendly loan and scope of presumptions of law. The facts of the case were:
"3. Respondent herein allegedly, on diverse dates, advanced a sum of Rs. 3,16,000/- to the appellant who issued a cheque for the said amount on 18.12.1995. The said cheque was dishonored on the ground of insufficient fund. Allegedly, when the matter was brought to the notice of the appellant, he undertook to remit the amount on or before 30.01.1996. The cheque was again presented but the same was not enchased on the ground payment stopped by the drawer.
5. The complainant in support of its case led evidence to show that he had advanced various sums on the following terms: On 31-1-94 a sum of Rs. One lakh; on 8-6-94, Rs. 86,000/-; on 12-6-94, Rs. 28,000/-; on 23-4-95, Rs. 50,000/- on 18-6-95, Rs. 40,000/- and on 7-8-95, Rs. 12,000/-.
6. Defence of the appellant, on the other hand, was that he had issued blank cheques for the purpose of purchase of spare parts, tyres, etc. in connection with the business of transport services run in the name of his brother. The blank cheques used to be returned by the sellers of spare parts, etc. when the amounts were paid. According to the appellant, the complainant lifted the impugned cheque book put in the bag and kept in his shop. Appellant in support of his case examined the Bank Manager of the Bank concerned. "
Hon'ble High Court having reversed the judgment of acquittal, accused approached the Hon'ble Supreme Court. Hon'ble Supreme Court has observed therein that:
7/20CC.No. 402/A/10 Pritam Singh vs. Meera Adhikari "14. The learned Trial Judge had passed a detailed judgment upon analysing the evidences brought on record by the parties in their entirety. The criminal court while appreciating the evidence brought on record may have to weigh the entire pros and cons of the matter which would include the circumstances which have been brought on record by the parties. The complainant has been found to be not man of means. He had allegedly advanced a sum of Rs. 1 lakh on 13.01.1994. He although had himself been taking advances either from his father or brother or third parties, without making any attempt to realize the amount, is said to have advanced sums of Rs. 86,000/-
on 8.06.1994. Likewise he continued to advance diverse sums of Rs. 28,000/-, Rs. 50,000/-, Rs. 40,000/- and Rs. 12,000/- on subsequent dates. It is not a case where the appellant paid any amount to the respondent towards repayment of loan. He even did not charge any interest. He had also not proved that there had been any commercial or business transactions between himself and the appellant. Whey the appellant required so much amount and why he alone had been making payments of such large sums of money to the appellant has not been disclosed. According to him, he had been maintaining a diary. A contemporaneous document which was in existence as per the admission of the complainant, therefore, was required to be brought on records. He failed to do so. He also did not examine his father and brothers to show that they were men of means and in fact advanced a huge sum to him only for the purpose of grant of loan by him to the appellant. The learned Trial Court not only recorded the inconsistent stand taken by the complainant in regard to the persons from whom he had allegedly borrowed the amount, it took into consideration the deposit of the cheques in the bank commenting: Ext. D1 the counterfoil of the cheque book issued to the accused from that bank, was proved through him. It contains the counterfoils of the cheques 782451 to 782460. Ext. D2 is the pass book issued to the accused from that bank. SW1 is the Branch Manager of Syndicate Bank, Koyilandy. He would say that in Ext. P4 ledger extract, cheque No. 782460 reached the bank for collection on 30.12.93. The net 8/20 CC.No. 402/A/10 Pritam Singh vs. Meera Adhikari transaction in that account was in the year 1996. Cheque No. 782451 reached the bank on 8.1.96. Ext. D1 shows that is the first cheque in that book. 782460 is the lost cheque in that book. If the lost cheque i.e. 782460 reached the bank for collection on 30.12.93 in normal and reasonable course the first cheque i.e. 782451 might have been issued even prior to that date. Case of the complainant is that Ext. P1 cheque was given to him by the accused on 5.10.95 and the cheque was dated 18.12.95. Ext. P4, D1 and D2 substantiate the case of the accused that the allegation of the complainant that Ext. P1 cheque was given to him on 18.12.95 is not genuine."
Hon'ble Supreme Court has observed therein that the High Court, as noticed herein before, on the other hand, laid great emphasis on the burden of proof on the accused in terms of Section 139 of the Act.
The question came up for consideration before a Bench of this Court in M.S. Narayana Menon (supra) wherein it was held:
"38. If for the purpose of a civil litigation, the defendant may not adduce any evidence to discharge the initial burden placed on him, a fortiori even an accused need not enter into the witness box and examine other witnesses in support of his defence. He, it will bear repetition to state, need not disprove the prosecution case in its entirety as has been held by the High Court."
A presumption is a legal or factual assumption drawn from the existence of certain facts. It was furthermore opined that if the accused had been able to discharge his initial burden, thereafter it shifted to the second respondent in that case.
The said legal principle has been reiterated by this Court in Kamala S. v. Vidhyadharan M.J. and Another [(2007) 5 SCC 264] wherein it was held:
9/20CC.No. 402/A/10 Pritam Singh vs. Meera Adhikari "The Act contains provisions raising presumption as regards the negotiable instruments under Section 118(a) of the Act as also under Section 139 thereof. The said presumptions are rebuttable ones. Whether presumption stood rebutted or not would depend upon the facts and circumstances of each case."
The nature and extent of such presumption came up for consideration before this Court in M.S. Narayana Menon Alias Mani V. State of Kerala and Anr. [(2006) 6 SCC 39] wherein it was held:
"30. Applying the said definitions of proved or disproved to the principle behind Section 118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration dos not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.
"This Court clearly laid down the law that standard of proof in discharge of the burden in terms of Section 139 of the Act being of preponderance of a probability, the inference therefore can be drawn not only from the materials brought on record but also from the reference to the circumstances upon which the accused relies upon. Categorically stating that the burden of proof on accused is not as high as that of the prosecution, it was held; Presumption drawn under a statute has only an evidentiary value. Presumptions are raised in terms of the Evidence Act. Presumption drawn in respect of one fact may be an evidence even for the purpose of drawing presumption under another."10/20
CC.No. 402/A/10 Pritam Singh vs. Meera Adhikari Reliance is also placed upon a decision of this Court in Goaplast (P) Ltd. v. Chico Ursula DSouza and Another [(2003) 3 SCC 232] wherein this Court opined:
"The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. This presumption coupled with the object of Chapter XVII of the Act which is to promote the efficacy of banking operation and to ensure credibility in business transactions through banks persuades us to take a view that by countermanding payment of post-dated cheque, a party should not be allowed to get away from the penal provision of Section 138 of the Act. A contrary view would render Section 138 a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts which in other words can be said to be taking advantage of ones own wrong. If we hold otherwise, by giving instructions to banks to stop payment of a cheque after issuing the same against a debt or liability, a drawer will easily avoid penal consequences under Section
138. Once a cheque is issued by a drawer, a presumption under Section 139 must follow and merely because the drawer issued notice to the drawee or to the bank for stoppage of payment it will not preclude an action under Section 138 of the Act by the drawee or the holder of the cheque in due course. This was the view taken by this Court in Modi Cements Ltd. v. Kuchil Kumar Nandi. On same facts is the decision of this Court in Ashok Yeshwant Badave v. Surendra Madhavrao Nighojakar. The decision in Modi case overruled an earlier decision of this Court in Electronics Trade & Technology Development Corpn. Ltd. v. Indian Technologists & Engineers (Electronics) (P) Ltd. which had taken a contrary view. We are in respectful agreement with the view taken in Modi case. The said view is in consonance with the object of the legislation. On the faith of payment by way of a post-dated cheque, the payee alters his position by accepting the cheque. If stoppage of payment before the due date of the cheque is allowed to take the transaction out of the purview of Section 138 of the Act, it will shake the confidence which a cheque is 11/20 CC.No. 402/A/10 Pritam Singh vs. Meera Adhikari otherwise intended to inspire regarding payment being available on the due date."
No exception to the aforementioned legal principle can be taken. What, however, did not fall for consideration in the aforementioned case was as to how the said burden can be discharged.
It is now trite that if two views are possible, the appellant court shall not reverse a judgment of acquittal only because another view is possible to be taken. The appellate courts jurisdiction to interfere is limited. [See M.S. Narayana Menon (supra) and Mahadeo Laxman Sarane & Anr. v. State of Maharashtra, 2007 (7) SCALE 137]. The High Court furthermore has not met the reasons of the learned Trial Judge. It proceeded on the premise that the appellant had not been able to discharge his burden of proof in terms of Section 139 of the Act without posing unto itself a further question as to how the said burden of proof can be discharged. It furthermore did not take into consideration the legal principle that the standard of proof upon a prosecution and upon an accused is different. "
Hon'ble Supreme Court in Kamala S vs Vidyadharan M.J. & Anr Appeal (crl.) 233 of 2007, decided on 20.02.2007 observed that:
"The Act contains provisions raising presumption as regards the negotiable instruments under Section 118(a) of the Act as also under Section 139 thereof. The said presumptions are rebuttable ones. Whether presumption stood rebutted or not would depend upon the facts and circumstances of each case.
This Court clearly laid down the law that standard of proof in discharge of the burden in terms of Section 139 of the Act being of preponderance of a probability, the inference therefor can be drawn not only from the materials brought on record but also from the reference to the circumstances upon which the accused relies upon......."12/20
CC.No. 402/A/10 Pritam Singh vs. Meera Adhikari Hon'ble Supreme Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde 2008 AIR SCW 738 has observed that:
"30. The proviso appended to the said section provides for compliance with legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.
31. The courts below, as noticed herein before, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct.
32. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of the accused and that of the prosecution in a criminal case is different.
34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of the accused is 'preponderance of probabilities'. 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 he relies.13/20
CC.No. 402/A/10 Pritam Singh vs. Meera Adhikari
45. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have been rebutted. Other important principles of legal jurisprudence, namely, presumption of innocence as a human right and the doctrine of reverse burden introduced by Section139should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same."
d) It may be pertinent to mention here that a three judges bench of the Hon'ble Supreme Court in Rangappa Vs. S. Mohan (2010) 11 SCC 441 has considered the dictum of Krishna Janardhan Bhat (supra) and overruled the view so far as existence of liability is concerned, however, has not dissented with other parameters observed and laid down in the said case. It has been observed therein that:
"14. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein."
e) This court is of the opinion that an accused has a right to rebut the presumption by placing reliance upon the circumstances brought and material placed 14/20 CC.No. 402/A/10 Pritam Singh vs. Meera Adhikari by the complainant. Hon'ble Supreme Court in Rangappa Vs. S. Mohan (2010) 11 SCC 441 has further held that:
"However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
9. Version of the accused :-
It is the case of the accused that she had taken a loan of Rs. 50,000/- from Mr. Parminder Singh who was the proprietor of Rajdhani Financial services. Accused stated that she had repaid Rs. 20,000/- to Mr. Parminder Singh of which she had documentary proof and the remaining amount of Rs. 30,000/ - has been paid to him by cash. The interest on the said loan was also paid to Mr. Parminder Singh from time to time. Accused further stated that she had given one blank cheque and one promissory Note to Mr. Parminder Singh as security for the abovementioned loan amount. It is also the case of the accused that she neither knew the complainant nor met him at any time prior to her appearance before this court and had no dealing whatsoever with the complainant nor had taken any loan of Rs. 1,00,000/- from the 15/20 CC.No. 402/A/10 Pritam Singh vs. Meera Adhikari complainant as mentioned in the complaint. The accused further deposed that when she demanded back the cheque in question issued as security, Mr. Parminder Singh declined to return the same and handed it over to the complainant. Mr. Parminder Singh got the same filled for Rs. 1,00,000/- by the complainant and got the same deliberately dishonoured without any intimation to her and the complainant has filed the present complaint to extort money from her at instance of Mr. Parminder Singh.
10. Reasons for decision :-
A. Presentation of cheque, issuance of legal notice and filing of the complaint have done within the validity/statutory period of limitation. The fact that cheque bearing the signature of the accused allegedly issued by her pertains to an account maintained with her banker and that the same has been dishonoured for the reason as mentioned in the cheque return memo are not disputed by the accused rather the same have been admitted by the accused during her examination as well as in her statement u/s 313 of code of crimincal procedure. As the facts duly admitted need not be proved so, the aforesaid ingredients of offence U/s 138 of Negotaible Instruments Act stand established and the same need not be proved.
B. Legal Notice Aspect :- Complainant deposed by way of para 9 of his affidavit filed in his evidence that legal notice was duly dispatched to the accused through his counsel on 18.11.2006 by registered AD and UPC which was duly served upon the accused. The accused denied of having received any legal notice dispatched by and on behalf of the complainant. However, the perusal of the postal receipt reveals that the notice was addressed at R/O Q- 319, Jalvayu Vihar, Sector-21, Noida, Gautam Budh Nagar, U.P., which is admittedly the address of the accused as mentioned by the accused during her defence evidence and also admitted by her during her cross examination. It is also not the case of the accused that the notice was addressed to wrong address. It shows that the accused and or her family members were available on the addresses at which the legal notice was dispatched and the accused had received the legal notice. As the said legal notice has been dispatched at the correct address, presumption of deemed service u/s 27 General Clauses Act is bound to arise.16/20
CC.No. 402/A/10 Pritam Singh vs. Meera Adhikari Furthermore, the accused had not disputed the service of notice by the alternate mode i.e. UPC which amounts to admission of service of legal notice on the part of the accused. Thus, it stands proved that the legal notice of demand was duly served upon the accused.
C. Issuance of cheque & Liability Aspect:- Complainant has primarily relied upon the mandatory presumption of law in respect of legal liability. The signatures on the cheque, its issuance and dishonor being admitted as above, presumption under section 118 and 139 of the Negotiable Instruments Act, 1881 has to arise. So, it must be presumed that the liability as alleged was existing at the time when cheque was given.
It is a settled law that accused is entitled to discharge the onus placed on him even on the basis of materials brought on record by the complainant. It is not obligatory on the accused to separately adduce evidence or to enter into witness box if he can successfully gather the material from the evidence of complainant which would sufficiently disprove the presumptive facts, particularly in relation to the pre- existence of legal liability or the debt for the discharge of which cheque was given. In the present case, the accused has relied on the material brought by the complainant as well as has led defence evidence. Now it has to be seen whether the accused has been able to rebut the aforesaid presumption or not:
C.1 Complainant deposed in his affidavit that the complainant advanced a cash loan of Rs. 1,00,000/- (Rupees One Lakh only) to the accused on friendly terms. However, the complainant during his cross examination admitted that the complainant had advanced loan to Mr. Parminder Singh and not to the present accused herein and at the time when cheque was given to Mr. Parminder Singh by the accused the same was blank.
Further the complainant in para 2 of his complaint admitted that the complainant had advanced a friendly loan to the accused, however in his cross examination on 18.10.2010 the complainant stated that the interest on loan was fixed at the rate of 2% P.A., but during his cross examination conducted on 20.01.2011 the complainant stated that no interest was mentioned in the pro-note Ex. CW 1/5 on which the complainant is relying heavily as the only document acknowledging the alleged loan transaction between the complainant and the accused. However CW-2, 17/20 CC.No. 402/A/10 Pritam Singh vs. Meera Adhikari Mr. Parminder Singh deposed that no interest on the loan amount was charged initially but when the accused showed her inability to arrange the funds after the dishonour of the cheque in question the interest @ 2% was charged on the loan amount, which completely contradicts the above version of the complainant and thus, raises serious doubts about the depositions of Complainant's Witnesses.
C.2 Further, the complainant is not sure about the status of the cheque in question on the basis of which the present complaint is filed by him, which is echoed from the stands taken by him during different stages of the trial in the present complaint On one hand the complainant is saying (in para 5 of the complaint) that the present cheque has been dishonoured on 30.10.2006 whereas on the other hand he is saying (during his cross examination) that he did not know about the dishonour of the present cheque.
C.3 The complainant during his cross examination on 18.10.2010 admitted of having records/documents of paying loan to the accused, for the production of which his cross examination was deferred, but during his cross examination on 20.01.2011 the complainant admitted that there is no other document of the said transaction besides the pro-note Ex. CW 1/5.
C.4 The case of the complainant as per the complaint is that the loan was advanced to the accused on 10.08.2006 on friendly terms and on repeated request the accused had given the cheque of the loan amount on 10.10.2006 i.e. the date mentioned on the cheque, for the discharge of her liability. However in his cross examination the complainant admitted that the interest on loan was duly paid by the accused to Mr. Parminder Singh, who handed over the same to the complainant, only for about 6-7 months and not uptill date. Whereas CW-2, Mr. Parminder Singh deposed that no interest on the loan amount was charged initially but when the accused showed her inability to arrange the funds after the dishonour of the cheque in question the interest @2% was charged on the loan amount. From the fact that the interest was paid by the accused for about 6-7 months as per the complainant's version it is inferred that either the loan was given much prior to 10.08.2006 (i.e. the date mentioned in the pro-note Ex. CW 1/5, as the date of the advancement of the loan) and the blank signed documents of the accused i.e. the cheque and the pro-18/20
CC.No. 402/A/10 Pritam Singh vs. Meera Adhikari note have been forged and fabricated later on and were not executed at the time of the alleged advancement of the loan and the same have been misused; or that the alleged loan was given on the date mentioned in the pro-note Ex. CW 1/5 i.e. on 10.08.2010 and the cheque in question was issued on date mentioned therein i.e. on 10.10.2010 and the story of the complainant is false and fabricated. In either of these situations the version of the complainant cannot be relied upon. Thus, the complainant has shattered his own version.
C.5 The complainant admitted that the complainant had advanced loan to Mr. Parminder Singh and not to the accused and that the pronate Ex. CW 1/5 and cheque was filled by Mr. Parminder Singh as the loan was financed by Mr. Parminder Singh, which is direct admission of the fact that the loan was not granted by the complainant to the accused but to Mr. Parminder Singh, which was also affirmed by Mr. Parminder Singh during his cross examination. The same is also echoed from the admission of the complainant that the interest on loan is directly paid by the accused to Mr. Parminder Singh, who had lent money to the accused and Mr. Parminder Singh gave that interest to the complainant. However the complainant during his cross examination on 20.01.2011 resiled from his earlier deposition and stated that he had advanced loan to the accused and not to Mr. Parminder Singh. These material contradictions in the story of the complainant substaintiate the version of the accused that the accused had taken loan from Mr. Parminder Singh and not from the complainant and the same has been repaid to Mr. Parminder Singh only.
C.6 Further the stand of the complainant is contradicted by his own witness. The version of the complainant is that Ex. CW 1/5 was filled by and in the handwriting of Mr. Parminder Singh, whereas Mr. Parminder Singh denied of having filled the document Ex. CW 1/5 i.e. pro-note. The depositions of both the complainant and his witness are self-contradictory, which demolish the story of the complainant and thus cannot be relied upon.
The complainant throughout the trial of the present complaint has himself resiled from his earlier stands and has taken two mutually destructive stands at the same time which create serious doubt on his version, the benefit of which must go to the accused.
19/20CC.No. 402/A/10 Pritam Singh vs. Meera Adhikari C.7 Accused proved her version that payments were made to Mr. Parminder Singh by calling her banker as witness who consistently proved the aforesaid defence version which in turn proves the truthfullness of accused's defence.
11. In view of the aforesaid discussion, the unequivocal and unrebutted testimony of the accused and failure of the complainant to discharge the onus which has shifted upon him, this court is of the considered opinion that the complainant had failed to establish his case and the accused has successfully raised a preponderance of probability that the present cheque was without any legally recoverable liability which was not issued to the complainant and thus rebutted the necessary presumptions of law existing against him. The averments of the accused that the present complaint is filed to extort money from her seems to true and the version of the complainant is false and concocted. In these circumstances this Court is not inclined to subscribe to the version of the complainant.
12. This court accordingly returns a finding of not guilty.
13. The accused is hereby acquitted. Surety is discharged. Bail Bond/Surety Bond is cancelled. Endorsement be cancelled and FDR be returned, if any. Original documents, if any be returned after retaining its photocopy on record.
File be consigned to Record Room.
Announced in the open court VIPLAV DABAS
today i.e. 30.04.2012 Metropolitan Magistrate
North/Delhi\30.04.2012
20/20