Delhi District Court
Judgment Passed In Case Of Rangappa vs Mohan Air 2010 Sc 1898 Are on 30 August, 2014
IN THE COURT OF MS. JASJEET KAUR
CIVIL JUDGEI/ METROPOLITAN MAGISTRATE
NEW DELHI
CC No.206/11
Unique ID No.
Sh. Ravinder Singh
s/o Sh. Jodha Singh
R/o H.No. A4, Churiya Mohalla,
Village Madan Pur Khadar,
New Delhi110076 ... Complainant
Versus
Sunita Devi
w/o Sh. Jagbir Singh
r/o House No. 524, Jatav Mohalla,
Village Madanpur Khadar,
New Delhi110076 ... Accused
Date of Institution: 19.11.2011
Date of Reserving Judgement: 30.08.2014
Date of Judgment: 30.08.2014
JUDGEMENT
1. Brief facts of the case from the perspective of the complainant as discernible from the complaint are that the complainant had entered into an agreement to sell with one Krishan Kumar, a relative of accused Sunita Devi whereby the said Krishan Kumar had agreed to sell a property ad measuring 100 sq. yards to the complainant and had taken a sum of Rs.60,000/ from the complainant pursuant to the said agreement by showing forged receipts purported to be issued in the name of said Krishan Kumar by one Sandeep Properties. It is the case of the complainant that the said piece of land allegedly sold to him by the relative of accused Sunita Devi, namely, Krishan Kumar was nonexistent (bogus) and, therefore, complainant had made a complaint to local police at Sarita Vihar Police Station alleging CC NO. 206/11 1/26 therein that accused Sunita Devi, her husband and one of her relatives, named, Krishan Kumar had in conspiracy with each other cheated him of a sum of Rs.60,000/ by selling to him a nonexistent plot.
2. It has further been alleged in the present complaint that during the course of investigation of the complaint filed by the complainant at Sarita Vihar Police Station, accused Sunita Devi had arrived at a settlement with him and had issued one cheque bearing number 741681 dated 07.05.2008 Ex. CW 1/B in the sum of Rs.52,000/ drawn on account no. 11334 maintained by her at Punjab & Sind Bank, Sarita Vihar in favour of the complainant and as per the assurance of accused the complainant had presented the said cheque for encashment at his own bank, that is, at Punjab & Sind Bank, Sarita Vihar on 07.05.2008. However, the said cheque was dishonoured on presentation due to insufficiency of funds in the account of the accused vide return memo dated 13.08.2008 Ex. CW 1/C. Consequent upon the dishonour of the said cheque, the complainant has claimed to have issued a legal notice dated 21.08.2008 Ex.CW1/D U/s 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as N. I. Act) calling upon the accused to make payment of the cheque amount and has claimed to have dispatched the same vide registered AD Card Ex. CW 1/G and UPC (Under Postal Certificate) vide postal receipts Ex. CW 1/E and F respectively. It is the alleged case of complainant that the accused had failed to make payment of cheque amount of Rs.52,000/ within 15 days of receipt of legal notice and consequent upon the failure of the accused to make the payment of cheque amount within 15 days of receipt of legal notice, the complainant was compelled to file the present complaint against accused Sunita Devi for the alleged commission of offence punishable U/s 138 of N. I. Act.
3. Upon receipt of the present complaint, the learned Predecessor Court had directed the complainant to lead presummoning evidence and in CC NO. 206/11 2/26 compliance of the directions given by the court, complainant Ravinder Singh had examined himself as CW1 in his presummoning evidence and had proved on record the cheque issued by the accused Ex, CW 1/B, return memo Ex. CW 1/C vide which the cheque in question was dishonoured, legal notice Ex. CW 1/D whereby the complainant had demanded payment of the cheque amount from the accused, registered AD card Ex. CW 1/G and postal receipts of dispatch of legal notice through UPC as Ex. CW 1/E & F. After perusal of complaint and documents placed on record ,accused Sunita Devi was summoned to face trial for the commission of offence punishable U/S 138 of N I Act by the learned Predecessor Court vide order on summoning dated 15.09.2008.
4. During the course of trial, notice of accusation U/S 251 of the Code of Criminal Procedure, 1973 ( hereinafter referred to as CrPC) was served upon accused Sunita Devi on 09.03.2010 for the alleged commission of offence punishable U/S 138 N I Act to which the accused had pleaded not guilty and had claimed trial.
5. Upon the accused pleading not guilty to the notice U/S 251 CrPC served upon her, an opportunity was given to complainant to prove his case by leading evidence in support of the same. Complainant examined himself as CW 1 in support of his case. A brief account of the deposition made by the complainant is reproduced below.
6. CW 1 complainant Ravinder tendered his evidence by way of affidavit Ex. CW 1/X wherein he had reiterated the facts set out in the complaint Ex.CW 1/H by alleging that accused Sunita Devi as well as her husband and a relative of accused Sunita Devi, namely, Krishan Kumar had cheated him by taking advance deposit of Rs.60,000/ from him for purchase of a bogus plot. He deposed that accused Sunita Devi and seller Krishan Kumar, a relative of the accused had taken a sum of Rs.60,000/ from him by CC NO. 206/11 3/26 showing him forged receipts purportedly issued in favour of the said Krishan Kumar by one Sandeep Properties despite being aware that the 100 sq. yards plot, which they were selling to him (to the complainant) did not even exist. CW 1 had further deposed that during the course of investigation of a criminal complaint for the offence of cheating filed by him against accused Sunita Devi and her accomplices at Sarita Vihar Police Station, the accused had arrived at a settlement with him and had issued cheque bearing no. 741681 Ex. CW 1/B1 in the sum of Rs.52,000/ in his favour towards the settlement amount. However, the said cheque was dishonoured upon presentation vide return memo Ex. CW 1/C due to insufficiency of funds in the bank account of the accused and, thereafter, the accused had failed to make payment of the cheque amount within 15 days of receipt of legal notice dated 21.08.2008 Ex.CW 1/D issued by him whereby he had demanded payment of the cheque amount from the accused.
7. In his crossexamination by Sh. Bhupinder Singh, learned counsel for the accused, CW 1 deposed that the agreement between himself and Krishan Kumar, the accomplice of accused Sunita Devi was signed by the accused as a witness. He produced the original agreement between himself and the accomplice of Accused Sunita Devi, namely, Krishan Kumar Ex. CW 1/I, the complaints dated 02.10.2008 and 07.10.2008 made by him to SHO, PS Sarita Vihar Ex. CW 1/J and Ex. CW 1/K respectively. He also produced the copy of complaint dated 19.02.2008 Ex. CW 1/H made by him to SHO PS Sarita Vihar. CW1 denied the suggestion given to him by the learned defence counsel to the effect that he was not entitled to recover the sum of Rs.60,000/ from the accused as the same was not legally recoverable from the accused or that the cheque Ex. CW 1/B received by him at PS Sarita Vihar was in fact issued by the accused under coercion of police officials. He further denied the suggestion that the accused had not received CC NO. 206/11 4/26 the legal notice Ex. CW 1/D.
8. After the complainant closed his evidence, statement of accused Sunita Devi U/S 313 CrPC was recorded on 02.03.2012 in which an opportunity was given to the accused to explain all the incriminating circumstances that had appeared against the accused in the evidence of the complainant. The accused denied all the incriminating circumstances that were put to her. Accused Sunita Devi had claimed in her defence that her husband had met the complainant through one Sh. Dharmender and her husband had introduced the complainant to Sh. Krishan Kumar. The accused further claimed that she herself had no knowledge of the transaction between complainant and Krishan Kumar. Accused Sunita Devi further claimed in her defence that she had handed over the cheque Ex. CW 1/B to the complainant under pressure from a Constable, SI G S Rawat as well as from Inspector Subodh Kumar, Addl. SHO of PS Sarita Vihar. Accused had also claimed that she had not received the legal notice Ex. CW 1.D and had rather received a plain paper. Accused preferred to lead evidence in her defence and had examined herself as DW 1 in her defence.
9. DW 1 Sunita Devi deposed that the complainant was known to her husband through a common friend, named, Boxer @ Dharmender. She further deposed that complainant Ravinder Singh belonged to her village and her husband had introduced complainant to one Krishan Kumar who was a colleague of her husband and was interested in selling a plot owned by him and after visiting the plot of Krishan Kumar, complainant Ravinder Singh had entered into an agreement with Krishan Kumar for purchase of the said plot. DW 1 further stated that complainant Ravinder Singh had handed over a sum of Rs.52,000/ to the Krishan Kumar in her presence as well as in the presence of her husband and she along with her husband had signed the agreement between complainant Ravinder Singh and Krishan Kumar as CC NO. 206/11 5/26 witnesses. However, subsequently, the complainant had learnt that the installments slips shown to him by Krishan Kumar in respect of plot in question were forged and, therefore, the complainant had abused her and her husband for obtaining refund of the cheated amount due to which she had filed a complaint against complainant Ravinder Singh at PS Sarita Vihar as well as at Crime against Women Cell, ITO. She further deposed that after 34 days of her filing the complaint, she was summoned by the SHO of PS Sarita Vihar and on being inquired by the SHO about the whereabouts of Krishan Kumar as well as her husband Jagbir Singh, she had informed the SHO that her husband Jagbir Singh was at home whereas Krishan Kumar was absconding and thereafter, she had been pressurized by Ct. Geeta Raghuvir and SI G S Rawat to issue a cheque in favour of the complainant and when she had informed SI G S Rawat that she did not have sufficient funds in her account for issuance of a cheque book then SI G S Rawat had himself arranged for a sum of Rs.500/ with the help of which the police officials had got issued a cheque book in her favour pertaining to her bank account. DW 1 further deposed that the said cheque book was handed over to her at the check post of PS Madanpur by SI G S Rawat after a period of about 15 days and thereafter she was made to issue a post dated cheque bearing date of 07.05.2008 in favour of the complainant by the police officials.
10. In her crossexamination by Sh. Hamid Ali, learned counsel for the complainant, DW 1 deposed that while the rest of the contents of cheque Ex. CW 1/A were written by her, however, the cheque amount and date in cheque Ex. CW 1/B were written by SI G S Rawat. She admitted that she had received the legal notice Ex. CW 1/D at her residence. However, she claimed that for a period of about one month from the date of receipt of legal notice, she was not aware whether she was supposed to reply to the said legal notice or not and, thereafter, she had consulted one Advocate namely CC NO. 206/11 6/26 Mr. Diwakar who had sent a reply to the legal notice received by her. After perusing the court record, DW 1 had stated that no reply to the legal notice had been placed on record by her. She deposed that she had neither signed the said reply nor she had seen her Advocate dispatching the alleged reply to the legal notice received by her. DW1 also admitted her signatures on acknowledgment card Ex. CW 1/G in respect of receipt of legal notice. She deposed that she had signed the agreement between complainant Ravinder Singh and the person named Krishan Kumar as a witness at the request of the complainant. She denied the suggestion that she had not filed any complaint against Ravinder Singh at the Crime against Women Cell and, therefore, she had not placed on record any copy of the said complaint. She deposed that neither her husband nor the person, named, Krishan Kumar had appeared at PS Sarita Vihar in respect of complaint of cheating filed against them by the complainant. DW 1 had admitted that she had not made any complaint against Ct. Geeta Raghuvir, SI G S Rawat and Addl SHO of PS Sarita Vihar despite having been pressurized by them to issue cheque Ex. CW 1/B. She further admitted that she had no proof of having received Rs.500/ from SI G S Rawat as help for getting issued a cheque book in her name. She, however, claimed that the details of her bank account could prove that a cheque book was issued to her during the period when she was under pressure from SI G S Rawat for issuing a cheque in favour of the complainant. She denied the suggestion that she had made a false phone call to police control room about kidnapping of Krishan Kumar at number 100 and therefore complainant Ravinder Singh had made a complaint dated 10.02.2008 bearing DD No. 35 B to the local police in this context. She clarified that on receipt of phone call from the said Krishan Kumar about his kidnapping and about the extension of a threat to kill him (Krishan Kumar), she had made phone call at number 100. She deposed that she had not CC NO. 206/11 7/26 made any complaint to police about the fact that cheque in question was got issued from her in favour of the complaint under pressure of the complainant as well as under pressure of police officials named constable Geeta Raghuvir, SI G.S. Rawat and additional SHO of PS Sarita Vihar. After examining herself as DW1, accused Sunita Devi closed her defence evidence.
11. Final arguments have been heard from Sh. Hamid Ali, learned counsel for the complainant and Sh. Manoj Kumar, learned counsel for the accused on 25.08.2014 as well as today on 30.08.2014. Learned counsel for complainant has argued that by examining himself as CW1, complainant Ravinder Singh has proved that the cheque in question issued by accused Sunita in discharge of liability to pay a sum of Rs.52,000/ to the complainant towards the settlement amount was dishonoured due to insufficiency of funds in the bank account of the accused. Learned counsel for complainant has further submitted that after dishonour of cheque Ex.CW1/B vide return memo Ex. CW1/C due to insufficiency of funds in the account of the accused, the complainant had also issued a legal demand notice Ex. CW1/D to the accused calling upon the accused to make payment of the cheque amount. However, the accused had failed to make payment of the amount stipulated in the dishonoured cheque within 15 days of receipt of legal notice and therefore, accused has committed an offence punishable under section 138 of Negotiable Instruments Act 1881.
12. Learned counsel for complainant has also submitted that the complainant has also established the liability of the accused to pay the cheque amount by explaining that the accused had in connivance with her relative Krishan Kumar and her husband Jagbir Singh cheated the complainant of a sum of Rs.60,000/ which an accomplice of the accused, namely, Krishan Kumar had taken from the complainant as an advance CC NO. 206/11 8/26 deposit for purchase of one plot belonging to the said Kishan Kumar. However, subsequently, it was discovered that the said Kishan Kumar was not the owner of any such plot and had cheated the complainant of a sum of Rs. 60,000/ in connivance with accused Sunita by selling to him a bogus or a nonexistent plot. Therefore, in discharge of her liability to refund the cheated amount to the complainant, accused Sunita had issued cheque Ex.CW1/B in favour of the complainant. Learned counsel for the complainant has submitted that in the light of the abovementioned explanation given by the complainant, accused Sunita Devi should be held guilty for the commission of offence punishable u/s 138 NI Act as she had issued the cheque in question in favour of the complainant despite being aware that she did not have sufficient funds in her account to pay the cheque amount.
13. Learned counsel for the accused has on the other hand argued that accused Sunita Devi was not a beneficiary of the cheated amount as she had merely signed the agreement Ex.CW1/I between the complainant and Krishan Kumar as a witness and Krishan Kumar was the person who had received a sum of Rs.60,000/ from the complainant vide agreement Ex.CW1/I. Therefore, she was not duty bound to refund the cheated amount to the complainant. Moreover, learned defence counsel has submitted that the cheque in question was got issued from the accused under pressure from police officials of PS Sarita Vihar including SI G.S. Rawat, Ct. Geeta Raghuvir and Inspector Subodh Kumar, the then Additional SHO of PS Sarita Vihar. Learned defence counsel has further submitted that although the cheque in question was signed by the accused, however, the particulars on the cheque including the cheque amount and the date were not filled by her and the same had infact been filled by SI G.S. Rawat of PS Sarita Vihar. Therefore, the cheque in question had been manipulated and forged by the complainant.
CC NO. 206/11 9/2614. I have considered the rival submissions of parties and I shall now examine the argument advanced by learned defence counsel.
15. Before embarking upon an appreciation of the evidence led by the parties, that is, the complainant and the accused, it is imperative to examine the provisions of Sections 138 & 139 of Negotiable Instruments Act in the light of law of precedents. In this context, it is pertinent to mention that section 138 of NI Act makes the drawer of a cheque liable to make payment of the amount stipulated in the cheque drawn by him by incorporating a presumption in favour of the holder of the cheque and against the drawer of the cheque in section 139 of N.I. Act. The relevant provisions of sections 138 & 139 NI Act are reproduced below : Section 138. Dishonour of cheque for insufficiency, etc., of funds in the account Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of 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, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
139. Presumption in favour of holderIt shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
CC NO. 206/11 10/2616. From a perusal of the abovecited provisions of Section 138 and 139 NI Act, it can be safely concluded that in order to constitute an offence punishable under section 138 N.I. Act, the following ingredients must be satisfied:
(i) the cheque must be drawn or issued by an account holder in respect of his account maintained in any bank.
(ii) the cheque must be presented for encashment within the period of its validity computed from the date of issuance.
(iii) the cheque must be dishonoured either on account of insufficiency of funds to the credit of the drawer or on account of the fact that the cheque amount exceeded arrangements made by the drawer for encashment or clearance of cheques with his banker.
(iv) the holder of cheque or the beneficiary of the cheque must issue a legal demand notice, calling upon the accused or drawer to make the payment of the cheque amount.
(v) the drawer must fail to make payment of the cheque amount within 15 days or receipt of legal notice.
17. Section 139 of the N.I. Act on the other hand contains a presumption in favour of the holder of the cheque and against the drawer whereby it is presumed that the drawer had issued the cheque in question in discharge of a debt or liability to pay the cheque amount to the holder of the cheque. However, the said presumption is a rebuttable presumption and it has been time and again reiterated by Hon'ble Supreme Court of India that it is upon the accused to raise a probable defence to challenge or demolish the presumption of the existence of a legally enforceable debt or liability against which a cheque is deemed to have been issued by drawer or accused as per the provisions of section 139 of NI Act and when the accused is called upon to rebut the presumption under section 139 N.I. Act, the standard of proof for doing so cannot be equivalent to the standard of proof which rests upon prosecution in a criminal trial. The accused merely has to prove his defence on the scale of preponderance of probabilities whereas the complainant or CC NO. 206/11 11/26 prosecution is required to establish its case beyond reasonable doubt. Observations made by Hon'ble Supreme Court of India in Para14 of the judgment passed in case of Rangappa Vs Mohan AIR 2010 SC 1898 are noteworthy in this context and are reproduced below : "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. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under section 139 is a device to prevent undue delay in the course of litigation. 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 clause and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clause 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."
18. Applying the ratio of the aforesaid judgment to the facts of the present case, it can be safely concluded that since in the present case, it has CC NO. 206/11 12/26 been admitted by accused that she had signed the cheque in question, therefore, presumption can be drawn that the complainant had lawfully obtained the cheque in question from the accused in relation to refund of amount cheated by the accused and her accomplice Krishan Kumar from the possession of the complainant on the pretext of selling to the complainant a plot purportedly belonging to the said Krishan Kumar despite being aware that the said Krishan Kumar was not the owner of any such plot being sold to the complainant. However, the said presumption is a rebuttable presumption and the accused has to raise a probable defence to rebutt the presumption that the cheque in question was issued by her in discharge of legally enforceable liability to repay the cheated amount. The presumption under section 139 of Negotiable Instruments Act can be rebutted by an accused person by raising a probable defence. However, the standard of proof expected from the accused to establish the probability of her defence is not the same as the standard of proof expected from prosecution or complainant in a criminal trial. While the complainant or prosecution is expected to prove its case beyond reasonable doubt. The accused is on the other hand expected to merely prove her defence on the scale of preponderance of probabilities. Also, for the purpose of raising a probable defence to rebut the presumption contained in section 139 of NI Act, the accused can either lead evidence of her own or the accused can rely upon the evidence and materials placed on record by the complainant. In the light of this legal proposition, I shall now examine the probability of the above mentioned defence taken by the accused.
19. In the present case, the accused has raised two defences to the presumption under Section 139 NI Act raised against the accused on account of the admission made by accused Sunita Devi of the factum of having signed and issued cheque in question in favour of the complainant. Firstly, it CC NO. 206/11 13/26 is the defence of the accused that she had only signed the cheque in question and the particulars on the said cheque including the cheque amount and the date had been filled by SI G.S. Rawat at the behest of the complainant.
20. In this context, it is pertinent to mention that the accused has led no evidence to prove any of the defences taken by her. Although it is the main defence of the accused that the cheque in question was handed over by her in partly blank condition to the complainant and she had not filled the cheque amount and the date in the same. However, accused has not got the cheque in question examined from any handwriting expert in support of her claim that the handwriting on the cheque in question in the columns pertaining to cheque amount and the date did not belong to her. It is therefore, noteworthy that the accused has merely alleged that the cheque in question had been forged by SI G.S. Rawat at the instance of the complainant but has not supported her allegations that the cheque in question was a forged or manipulated cheque either by leading independent evidence of her own or by pointing to any evidence led by the complainant or also by relying upon any material or document placed on record by the complaint whereby an inference can be drawn that the cheque amount and date on the cheque in question Ex. CW1/3 had not filled by the accused and the same had been filled or inserted by SI G.S. Rawat on behalf of the complainant.
21. In this context, Hon'ble Supreme Court of India had observed in the case of Fakruddin Vs. State of M.P. AIR 1967 SC 1326 that as per the provisions of Section 45, 47 and 73 of the Indian Evidence Act 1872 there were three different modes of proving the handwriting of any person in a litigation. Firstly, the handwriting on any documents can be proved by the admission of person responsible for writing or executing the document in CC NO. 206/11 14/26 question. Also, the handwriting of any person on a document can be proved through the testimony of a witness in whose presence the executor of the document had written or signed the same. Secondly, the handwriting of a person on a document can be proved by the testimony of a person who is familiar with the handwriting of the person whose handwriting is in dispute. Besides, as per the provisions of Section 45 of the Indian Evidence Act the handwriting of a person on a document can be proved by the opinion of a handwriting expert. Thirdly, Section 73 of the Indian Evidence Act also provides scope for comparison by the court concerned of a handwriting made in the presence of the court or of any admitted or duly proved handwriting of the person concerned with the handwriting in dispute. Observations made in this context by the Hon'ble Apex Court in the case of Fakruddin Vs. State of M.P. AIR 1967 SC 1326 in para 10 of the judgement are noteworthy in this context and are reproduced below:
"10. Evidence of the identity of handwriting receives treatment in three sections of the Evidence Act. They are Sections 45, 47 and
73. Handwriting may be proved on admission of the writer, by the evidence of some witness in whose presence he wrote. This is direct evidence and if it is available the evidence of any other kind is rendered unnecessary. The Evidence Act also makes relevant the opinion of a handwriting expert (Section 45) or of one who is familiar with the writing of a person who is said to have written a particular writing. Thus besides direct evidence which is of course the best method of proof, the law makes relevant two other modes. A writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert competent to the comparison of handwritings on a scientific basis. A third method (Section 73) is comparison by the Court with a writing made in the presence of the Court or admitted or proved to be the writing of the person."
22. Applying the ratio of the above cited decided case of Fakruddin Vs. State of M.P. AIR 1967 SC 1326 to the facts of the present case, I am of the considered opinion that if there are three modes of proving the CC NO. 206/11 15/26 handwriting of any person on a document, then the same three modes can be used for disproving the hand writing of any person on any document. If the accused wanted to disprove her handwriting on the cheque in question, then she should have ideally got the cheque in question examined from a handwriting expert. In the alternative, the accused could have produced the person responsible for writing the particulars on the cheque in question or with the admitted handwriting of the said person responsible for writing the particulars of the cheque in question, namely, SI G.S. Rawat for a comparison by the Court during the recording of evidence. Even, if the accused was not able to produce SI G.S. Rawat or his admitted handwriting then also accused should have at least produced her own admitted or duly proved handwriting for comparison with the questioned handwriting by this court or by any handwriting expert. However, the accused has chosen neither to get the cheque in question examined from a handwriting expert to prove that the cheque in question had not been filled by her and the particulars on the cheque including the cheque amount and the date were not in her handwriting nor has the accused produced any admitted or duly proved handwriting of her own for comparison with the questioned handwriting of herself on the cheque in question for comparison by the Court.
23. In these circumstances, accused has made a bald assertion that she had signed a partly blank cheque and had handed over the same to the complainant, which is not substantiated by any oral, ocular or documentary evidence including the opinion of handwriting expert. Besides, the defence of the accused has also not been sustained or proved from the evidence led by the complainant. Therefore, neither any inference can be drawn from the evidence produced by the complainant that the particulars on the cheque in question were not filled by the accused nor the accused has led any independent evidence of her own in support of her claim that the CC NO. 206/11 16/26 particulars on the cheque in question had been filled by SI G.S. Rawat at the instance of the complainant. Hence, the probability of defence of accused that the cheque in question was handed over by her in partly blank condition to the complainant who had got the same filled from SI G.S. Rawat has not been proved on the scale of preponderance of probabilities.
24. In the present case, it is the second defence of the accused that she had issued the cheque in question only due to pressure exerted upon by the police officials despite the fact that she was not liable to pay any amount to the complainant. It has been submitted on behalf of the accused that she was not the beneficiary of the cheated amount and therefore, she was not liable to refund the same. In this context, it is noteworthy that although, accused has examined herself in her defence, however, she has merely stated that SI G.S. Rawat, Ct. Geeta Raghuvir of PS Sarita Vihar as well as Inspector Subodh Kumar, the Addl. SHO of PS Sarita Vihar had pressurized her to issue the cheque in question in favour of the complainant. However, she has not led any evidence in support of her claim that she had issued the cheque in question under police pressure. Accused Sunita Devi had not made any complaint to higher police authorities or to the Court in respect of alleged pressure exerted upon her by the police officials for getting a cheque issued from her. She has merely made a bald assertion that she had signed the cheque Ex.CW1/B under police pressure. Therefore, the abovementioned defence of the accused has neither been proved by the accused by leading independent evidence of her own nor substantiated from the evidence of the complainant. In this context, a perusal of testimony of the accused further reveals that during her cross examination as DW1, accused Sunita had admitted that her husband had introduced the complainant to Krishan Kumar, that is, the person who had cheated the complainant of a sum of Rs.60,000/ by selling to him a bogus plot. Besides, she had also admitted in her cross CC NO. 206/11 17/26 examination that on one occasion, she had made a call at 100 number informing police that Krishan Kumar had been kidnapped and one Suresh Pandit had been called to kill him. Specific extract of her testimony in this context is reproduced below : "It is incorrect to suggest that I had made a false complaint in respect of kidnapping of one Sh. Krishan Kumar at number 100 and therefore, complainant had made complaint dated 10.02.2008 bearing DD No. 35B Ex.CW1/J in this context. Vol. I had given the abovementionied information at number 100 at receipt of a call from the said Krishan Kumar who told me that he had been kidnapped and one Suresh Pandit had been called from Madanpur Khadar Village to kill him and the said Suresh Pandit had been directed to throw his body on the railway track."
25. From the above mentioned extract of testimony of accused Sunita Devi, it is evident that accused was not only known to Krishan Kumar and the accused along with her husband had introduced the said Krishan Kumar to the complainant. On the contrary, the aforementioned extract of the deposition of the accused has also established that the accused was constantly in touch with Krishan Kumar even after the commission of offence of cheating by the said Krishan Kumar and had made a call to police control room for giving false information to police officials about kidnapping of Krishan Kumar on the instructions of the said Krishan Kumar. The conduct of accused before the commission of offence of cheating by Krishan Kumar as well as after the commission of the said offence by the said Krishan Kumar shows that the accused was hand in gloves with the said Krishan Kumar in committing the offence of cheating against the complainant. Moreover, even if it is a defence of the accused that she was not beneficiary of the cheated amount and she had issued the cheque in question under police pressure, then the accused should have explained why police officials had pressurized her to issue the cheque in question in favour of the complainant as it is not the defence of the accused that the police officials were either related or known to the complainant or had any other personal interest in the dispute CC NO. 206/11 18/26 between herself and the complainant. It is settled law that although the standard of proof of the defence taken by an accused to the presumption u/s 139 of NI Act is different from the standard of proof expected from prosecution in a criminal trial. However, the burden to prove the probability of his or her defence is squarely on the accused. It was held by the Hon'ble Supreme Court of India in the case of K.N. Beena vs Muniyappan and another Criminal Appeal No. 1066 of 2001 decided on 18 October 2001 that section 118 of NI Act provides that unless the contrary is proved it should be presumed that a Negotiable Instrument was issued in lieu of some consideration and section 139 of NI Act provides that a Court has to presume that the holder of the cheque had received the same in discharge of some liability unless the contrary is proved by the drawer of the cheque. Therefore, the burden of raising a probable defence to the presumption of section 139 of NI Act always lies on the accused in a trial for the commission of the offence punishable u/s 138 of NI Act. Relevant extract of observations made by Hon'ble Supreme Court of India in the said judgement are reproduced below : "In our view the impugned Judgment cannot be sustained at all. The Judgment erroneously proceeds on the basis that the burden of proving consideration for a dishonored cheque is on the complainant. It appears that the learned Judge had lost sight of Sections 118 and 139 of the Negotiable Instruments Act. Under Sections 118, unless the contrary was proved, it is to be presumed that the Negotiable Instrument (including a cheque) had been made or drawn for consideration. Under Section 139 the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. Thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebutable. However the burden of proving that a cheque had not been issued for a debt or liability is on the accused. This Court in the case of Hiten P. Dalal vs. Bratindranath Banerjee reported in (2001) 6 S.C.C. 16 has also taken an identical view.
In this case admittedly the 1st Respondent has led no evidence except some formal evidence. The High Court appears to have CC NO. 206/11 19/26 proceeded on the basis that the denials/averments in his reply dated 21st May, 1993 were sufficient to shift the burden of proof onto the Appellant/Complainant to prove that the cheque was issued for a debt or liability. This is an entirely erroneous approach. The 1st Respondent had to prove in the trial, by leading cogent evidence, that there was no debt or liability. The 1st Respondent not having led any evidence could not be said to have discharged the burden cast on him. The 1st Respondent not having discharged the burden of proving that the cheque was not issued for a debt or liability, the conviction as awarded by the Magistrate was correct. The High Court erroneously set aside that conviction."
26. Applying the ratio of the abovecited judgement of the facts of the present case, it can be safely concluded that as per provisions of section 118 of NI Act, it can be presumed that the cheque in question was issued by the accused in lieu of some consideration, that is, towards refund of the cheated amount obtained from the complainant by Mr.Krishan Kumar and herself in conspiracy with each. Hence, in the light of abovecited observations of Hon'ble Supreme Court of India, it can be safely concluded that it was not the duty of the complainant to establish that the cheque in question had been issued by the accused of her own will without any threat, pressure or coercion. On the contrary, the accused was required to prove on the scale of preponderance of probabilities that the cheque in question had been issued by her under pressure from SI G.S. Rawat, Ct. Geeta Raghuvir and Inspector Subodh Kumar, the additional SHO of PS Sarita Vihar. Mere statement of the accused that she had been pressurized by above named police officials is not sufficient to prove the probability of defence of the accused on the scale of preponderance of probabilities. Accused has claimed in her cross examination that SI G.S. Rawat had lent her a sum of Rs. 500/ for getting issued a cheque book in respect of her bank account from which the cheque in question had been drawn. However, she has not produced any request form filled by her at the relevant time for getting issued a new cheque CC NO. 206/11 20/26 book from her banker, that is, Punjab and Sind Bank, Sarita Vihar. No official of the bank has been summoned as a witness to prove that a new cheque book had been issued in favour of accused Sunita Devi at the relevant time when she had issued the present cheque in favour of the complainant. Besides, accused Sunita Devi has not produced any complaint filed by her to higher police authorities or to any Court of law against the police officials of PS Sarita Vihar who had allegedly pressurized her to issue a cheque in favour of the complainant. In these circumstances, there is no material on record to prove the probability of defence of the accused.
27. In this context, it is pertinent to mention that similar defence had been taken by one of the accused i.e. Sikh gentleman named Kanwaljit Singh in the above cite case of Kanwaljit Singh vs The State (NCT of Delhi) 139 (2007) DLT 280 decided on 26 March, 2007 wherein the accused Kanwaljit Singh had claimed in his defence that he was the clerk of some advocate and had approached the ahlmad concerned i.e. coaccused Anoop Singh for the purpose of making some inquiry in respect of some case pending in the court of Ld. Metropolitan Magistrate Ms. Sukhwinder Kaur and was falsely implicated in this case despite the fact that he was only an onlooker from whom nothing had been recovered. The Hon'ble High Court of Delhi had rejected the defence of the accused on the ground that accused had not made any complaint to any senior police officer about his false implication by the police officials nor had the accused led any evidence in support of his claim that he was the clerk of some advocate in a criminal case. Observations made in this context in para 12 of the judgment are relevant to mention in this context and are reproduced as under: "12..............The only defense of the appellant Anoop Singh is that GC currency note was not recovered from him and he had not demanded the bribe. The defense of appellant Kanwaljit Singh is that he was merely an onlooker and was falsely trapped. None of the appellants made complaint to any senior police officer about CC NO. 206/11 21/26 false implication neither accused Kanwaljit Singh led any evidence in defense that he was a clerk of an advocate or had come to court for some work."
28. In another similar case pertaining to commission of offence punishable u/s 138 NI Act decided by Hon'ble High Court of Delhi in the case of Vijay Power Generators Ltd vs Annai Engineering Works & Anr decided on 22 April, 2014, wherein the accused had examined himself as DW1 in his defence and claimed that he had issued the cheque in question as a blank security cheque and since he had not received any generator from the complainant company in respect of purchase of which he had issued the cheque in question, therefore the cheque in question had been misused by the complainant company, the Hon'ble High Court of Delhi had rejected the defence of the accused on the ground that in his cross examination by the complainant, the accused had admitted that he had taken two generator sets from the complainant company whereas he had earlier taken a contrary stand in his statement u/s 313 Cr.PC by stating that he had issued cheque in question as a security for purchase of 7 generators which he had to purchase from the complainant company and therefore, the onus was on the accused to prove that he had paid the consideration amount for the generator set supplied to the accused in view of mutually contradictory stands taken by the accused particularly when the accused had not sent any notice to the complainant calling upon the complainant to return his security cheques. Observations made in para 6 of the said judgement are noteworthy in this context and are reproduced below: "6. The only evidence led by the respondent to discharge the statutory onus placed on him is his own deposition as DW1. In the examinationinchief deposition the respondent inter alia stated that there was no outstanding liability of the complainant Company towards him and the cheques in question were signed as blank, as security in reference to purchase of generators. He also claimed that he had not received any generator from the complainant Company for which cheques in question had been issued. During cross examination by the learned counsel for the complainant, DW1 CC NO. 206/11 22/26 Mr. J. Stanishlaus, Proprietor of Annai Engineering Works stated that he had taken just 12 generator sets from the complainant Company. He specifically denied the suggestion that he had purchased seven (7) generator sets from the complainant Company. Thus, the case as set out by DW1 in his deposition is that he had purchased only 12 generator sets from the complainant Company. On the other hand, in his statement under Section 313 of Cr.P.C. the respondent expressly stated that he had handed over cheques in question as blank signed cheques for the purpose of security as he had to purchase seven (7) generator sets and the complainant supplied seven (7) generator sets to him. It is, thus, evident that the respondent/accused made a false statement on oath when he claimed that only 12 generator sets were supplied to him. Having admitted the delivery of seven (7) generator sets to him the onus was on the accused/respondent to prove that he had paid for the said generator sets. It has come in the crossexamination of DW1 that he had issued demand drafts of Rs.7.75 lakh to the complainant/appellant as per Ex.DW1/6. However, a perusal of the letter Ex.DW1/6 would show that it refers to a demand draft of Rs.3.00 lakh sent on 7.11.1997, and not to one or more demand drafts of Rs.7.75 lakh. As per the statement of accounts filed by the appellant/complainant Company, it received only two (2) payments from the respondent in the financial year 19992000, i.e., between 1.4.1999 to 31.3.2000. Out of them one payment was for Rs.17,000/ and the other was for Rs.25,000/. The cheques for Rs.6,71,326/ which were deposited with the bank on 7.3.2000 were dishonoured and the amount of the aforesaid cheques was debited in the account of the respondent on 23.3.2000. The respondent/accused did not examine any bank official to prove any payment of Rs.7.75 lakh to the complainant by way of demand draft. In case any such payment was actually made, after the delivery of the generator sets was received, nothing prevented the respondent/accused from summoning the bank official(s) to prove the aforesaid payment. Moreover, no receipt evidencing payment of Rs.7.75 lakh has been filed by the respondent/accused. On receipt of notice from the complainant/appellant, admittedly no reply was sent by the respondent/accused, claiming payment of Rs.7.75 lakh by way of demand draft or alleging that the cheques in question were given as blank cheques, towards security. No notice was sent by the respondent/accused to the complainant/appellant Company at any point of time, asking for the return of the cheques in question on the ground that the payment had already been made by way of demand draft. In fact, in his examinationinchief DW1 did not even refer to any payment to the appellant/complainant by way of any demand draft and the plea of such payment cropped up only during the crossexamination of the respondent/accused. The respondent did not file his own statement of account, to show that nothing was payable by him to the appellant."
29. The case in hand is similar to the above cited case decided by Hon'ble High Court of Delhi. In the present case also the accused has made CC NO. 206/11 23/26 mutually contradictory statements by claiming in her statement u/s 313 Cr.PC that she had not received any legal notice and had no liability to pay the cheque amount as she had merely signed the agreement to sell entered into between the complainant and Krishan Kumar as a witness and had no knowledge about the transaction between the said Krishan Kumar and the complainant. However, in her cross examination by learned counsel for the complainant, the accused had taken a contrary stand by deposing that she had duly received the legal notice issued by the complainant and had also sent her reply to the same. The alleged reply of the accused to the legal notice has however not been filed by the accused on the Court record. Likewise, the statement made by the accused in her cross examination to the effect that on one occasion she had also made a call to police control room at 100 number for giving information about the abduction of the said Krishan Kumar by the complainant also shows that the accused was constantly touch with Krishan Kumar and was hand in gloves with the said Krishan Kumar in the commission of offence of cheating and dishonestly inducing delivery of Rs.60,000/ on the pretext of selling a plot to the complainant, which was nonexistent. This admission made by the accused in her cross examination is also contrary to the stand taken by the accused in her statement u/s 313 Cr.PC that she did not know the complainant and had merely signed the agreement between the complainant and the said Krishan Kumar as a witness.
30. Besides, the defence of the accused that she had issued the cheque in question under pressure from police officials is not supported by any oral, documentary or circumstantial evidence to the effect that she had infact been coerced by police officials to issue the cheque Ex.CW1/B in favour of the complainant. Neither the accused has led any independent evidence of her own to substantiate her claim that any cheque book was CC NO. 206/11 24/26 issued in her name at the relevant time by examining any witness from her banker, that is, Punjab National Bank, Sarita Vihar who could have proved that she had filled in a form for obtaining a new cheque book at the time of issuance of cheque in question in favour of the complainant nor she has imputed any motive on the police officials of PS Sarita Vihar for which the said police officials had unduly favoured the complainant and had pressurized her to issue a cheque in favour of the complainant. Hence, the second defence of accused that she had issued cheque in question in favour of the complainant under pressure from police officials of PS Sarita Vihar has not been proved on the scale of preponderance of probabilities by either producing any bank official who could have supported her contention that SI G.S. Rawat had handed over Rs.500/ to her for getting issued a cheque book to draw a cheque in favour of the complainant by deposing that in fact a cheque book had actually been issued by Punjab and Sind Bank, Sarita Vihar in the name of accused at the time when the accused had drawn cheque Ex.CW1/B in favour of the complainant nor has the accused placed on record any complaint made by her to higher police authorities or to any Court of law against SI G.S. Rawat, Ct. Geeta Raghuvir and Inspector Subodh Kumar, the then Additional SHO of PS Sarita Vihar in respect of pressure exerted by the above named police officials on her to issue a cheque in favour of the complainant.
31. Besides, the other defence of accused that she had merely signed the cheque in question and the particulars of the same including the cheque amount and the date had been filled by SI G.S. Rawat and therefore, she is not liable to make payment of the cheque on which entries had been forged and manipulated by SI G.S. Rawat at the instance of complainant has also not been proved by leading any evidence in the form of report of handwriting expert or by producing her own admitted handwriting for CC NO. 206/11 25/26 comparison with the questioned handwriting on the cheque in question. None of the two defences taken by the accused have been substantiated from the evidence led by the complainant or proved by the accused by leading any independent evidence of her own.
32. On the other hand, complainant has led sufficient evidence in support of his case by proving on record agreement Ex.CW1/I whereby he had handed over an amount of Rs.60,000/ to the accomplice of accused Sunita Devi, namely, Krishan Kumar. He has also proved on record cheque Ex.CW1/B issued by accused towards refund of part of the cheated amount, that is, a sum of Rs.52,000/ in which the dispute had been settled between the complainant and the accused. The complainant has also led evidence to prove that the cheque in question had been dishonoured on presentation due to insufficiency of funds in the account of the accused. The receipt of legal notice has been admitted by the accused in her cross examination by the complainant. Besides, the admission of accused that her husband had introduced the said Krishan Kumar to the complainant as well as the admission made by the accused of having made a call to police control room at 100 number whereby she had given false information to police about abduction of Krishan Kumar by complainant has strengthened the case of the complainant, which has been proved beyond reasonable doubt.
33. Accused Sunita Devi is accordingly held guilty for the commission of offence punishable u/s 138 of NI Act. At the request of learned defence counsel, list for arguments on sentence on 10.09.2014.
Announced in open Court (Jasjeet Kaur)
today on 30.08.2014 Civil Judge01/ Metropolitan Magistrate
New Delhi
CC NO. 206/11 26/26