Delhi District Court
Naresh Sharma vs Smt Radha on 8 December, 2023
IN THE COURT OF SH. SNEHIL SHARMA, METROPOLITAN
MAGISTRATE, NI ACT DIGITAL COURT, NORTH EAST
DISTRICT, KARKARDOMA COURT, DELHI
JUDGMENT
NARESH SHARMA VS RADHA CC NO: 221/22 P. S. Gokul Puri U/s 138 NI Act CNR No. of the case : DLNE020005272022 a b Cheque number and dated : 141067 dt. 06.12.2021 c Date of institution of the case : 11.08.2023 d Name of the complainant : Naresh Sharma s/o Sh. Laxmi Narayan Sharma R/o 210A, Gali no.5, Prem Nagar, Karawal Nagar, Delhi e Name of the accused and her : Smt. Radha w/o Sh. Tula Ram parentage R/o E-29, gali no.3, Pt. Jodha Ram Gali, Nehru Vihar, Dayalpur, Delhi f Offence complained of : 138 NI Act g Plea of accused : Not guilty h Orders reserved on : 26.10.2023 i Final order : Accused Radha is CONVICTED for the offences punishable under sections 138 NI Act.
j Date of judgment : 08.12.2023
1. Vide this judgment the present complaint case for an offence punishable U/S.138 of the Negotiable Instruments Act, 1881 (hereinafter "the NI Act") is being decided.
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2. It is case of the complainant that the accused and her husband/family members were having friendly relations with the commplainant and used to share good and bad days with each other. In the month of November, 2020 the accused was facing financial crises due to Covid-19 as her husband has become jobless and it was difficult to meet the basic requirement of family of the accused and as such the accused requested the complainant to help financially. Keeping in mind the old relations, the complainant advanced a friendly loan of Rs.2 lacs on 01.12.2020 for one to the accused. At the time of taking loan the accused not only executed a promissory note of receipt of Rs. 2 lacs in cash as well as the accused promised to return the said loan on or before on 06.12.2021. At the time of taking loan the husband of the accused was also with the accused who had given his adhar card and election card duly signed by him as an guarantor to the said loan amount. The husband of accused has also given an electricity bill as a proof of his residence. The accused while taking loan also issued a post dated cheque duly filled and signed by the accused bearing no. 141067, dt. 06.12.2021 drawan on Union Bank of India, Branch Sherpur, Delhi-94 of Rs.2lacs with the assurance that the same shall be duly honoured on its presentation.
3. On the assurance of the accused, the complainant company presented the abovesaid cheque for encashment with his banker Punjab National Bank, C-7, Johripur, Shiv Vihar, Delhi-110094 but the said cheque was dishonoured and returned unpaid with remarks "Funds Insufficient" vide return memo dated 07.12.2021.
4. The complainant through its counsel sent a statutory notice dated 05.01.2022 which was delivered on 07.01.2022. The said legal notice was duly served upon the accused through speed post. Despite the service of CC No. 221/22 Naresh Sharma vs Radha Page 2 of 20 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2023.12.08 16:55:13 +0530 legal notice the accused has failed to make payment in lieu of the dishonoured cheque even after expiry of the statutory period of 15 days.
5. On being satisfied of the prima facie ingredients of Section 138 of the NI Act, cognizance was taken and summons were directed to be issued against the accused vide order dated 14.03.2022.
6. Accordingly, on 27.07.2022 notice under Section 251 Cr.PC r/w Section 263(g) Cr.P.C was framed and served upon the accused to which she pleaded not guilty and claimed trial. While putting forth her plea of defence, accused admitted her signatures upon the cheque in question and denied other particulars being filed by her and it was a blank signed cheque. She had admitted that she had received the legal demand notice. She has further stated that she know the complainant but she had not taken any loan from him. Complainant used to give loan to the people. She had given the cheque in question to one Bhawna as she was the agent of complainant for availing loan. However, she had not given any loan by the complainant as his file was returned back stating the loan could not be given as the adhar card of his husband is of UP address and herself is of Delhi address. She demanded her cheque back from the complainant. However, the complainant did not return the same stating that the same is in possession of Bhawna. She has further stated that she had not taken back her cheque from Bhawna. She does not owe the liability of cheque amount towards the complainant. Complainant has misused her cheque. She does not want to say anything else. The statement of accused was recorded under section 294 Cr.P.C qua the admitted facts.CC No. 221/22 Naresh Sharma vs Radha Page 3 of 20 Digitally signed by SNEHIL
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7. In Complainant's evidence, the complainant (CW-1) tendered his evidence affidavit in post summoning evidence (as the solitary witness) and relied upon the following documents:
i) Ex. CW-1/A : Evidence of complainant by
way of affidavit.
ii) Ex. CW-1/1 : Promissory note
(Admitted by accused in her statement recorded Under Section 294 Cr.P.C)
iii) Ex. CW-1/2 : Original cheque bearing no. 141067 dt. 06.12.2021 (Admitted by accused at the time of her statement recorded Under Section 294 Cr.P.C)
iv) Ex. CW1/3 : Original Cheque Return Memo dtd. 07.12.2021 (Admitted by accused at the time of her statement recorded Under Section 294 Cr.P.C)
v) Ex. CW1/4 : Legal demand notice dt.
05.01.2022 sent by Complainant to accused through counsel (Admitted by accused in her statement recorded Under Section 294 Cr.P.C).
vi) Ex. CW1/5&6 : Postal receipt &
Tracking report
8. Complainant was cross examined on behalf of the accused. During cross examination, complainant has stated that he is working as a farmer as well as dairy farm. Accused Radha is his neighbor and he know her from five years. He did not remmeber whether he had filed his bank statement with the complainant . NO loan agreement has been executed between him and the accused regarding the loan in question. He has voluntarily stated that the accused had given a cheque in question and the CC No. 221/22 Naresh Sharma vs Radha Page 4 of 20 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2023.12.08 16:55:00 +0530 pronote and the copy of the adhar card and electricity bill). He did not pay the income tax. He had PAN card. He filed the Zero (nil) tax return. He had filed the nil ITR in the year 2020. He had given the money to accused as she needed the same, however it was not a loan. He had not shown the amount given to the accused, in his Nil ITR 2020. He does not know what was his monthly income in 2020 but he was earning by selling the buffalo milk as he was rearing 6-7 buffalos at that time and he had a agricultural land also. He had not filed written document with respect to the same. He had given the money to accused out of the money collected at his home in cash. He does not remember the time as it has been two years. Husband of the accused was also present at that time. He had admitted that the date of promissory note is not written in his legal demand notice sent to the accused which is Ex. CW1/1.
9. CW1 had admitted that currently he is running a company in the name of NHS Benefit Nidhi. He had been running the company for last one year. The nature of business of his company creating the membership of people and collecting funds and advancing the loan to the members of the company in case of need. He did not remember the current number of members in his company. His company has its own PAN Number. The company has its own current account also. His company is a new company, he is not aware of the ITR of the company. However, his CA can tell the same. CW1 has further stated that for becoming the member of the company, a person needs to give its pan card, adhar card and cheque. He has again stated that these documents are required for the loan to be taken for the company and for becoming the member in the company only the copy of PAN card and adhar card is required. He is Director in the Company. The loan amount below Rs. 20,000/- is advance in cash however, the amount more than Rs. 20,000/- is advance through cheque.
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10. CW1 had admitted that he had filed one case for Section U/s. 138 NI Act against one Anju Sagar but he cannot say if he had filed any case against Nazia. His company has the licence to advance the loan. However, he can not say if the said licence is issued by RBI or any other authority. He has voluntarily stated that his CA can tell about the same. No lady with the name of Bhawna wokrs in his company. He had denied all the suggestions put to him during cross examination.
11. The accused was then examined under Section 313 Cr.PC, 1973 wherein all the incriminating evidence were put to the accused and she deposed that she know the complainant through a lady namely Bhawna who promised her to arrange a loan from one Naresh Pandit as he did not know Naresh Pandit and Bhawna knew him and in the garb of the same, Bhawna took two unsigned cheques including the cheque in questoin and got her signature on the blank pronote and receipt and also took the adhar card, pan card and the copy of electricity bill from her. They also took the adhar card of her husband. He has never taken any loan from the complainant, even they have not arranged any loan from the nationalised bank as promised. Moreover, they had not returned her documents till date. Bhawna had informed her that her loan has been cancelled due to the adhar card of her husband being address of UP.
12. Acused has further deposed the promisory note and the receipt were blank and the complainant and Ms. Bhawna took her signature and thumb impression on the same on the pretext of getting a group loan. The same have been misused by the complainant in the present case and she has not taken any loan from the complainant. She had signed the pronote and CC No. 221/22 Naresh Sharma vs Radha Page 6 of 20 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2023.12.08 16:54:47 +0530 recepits which were blank, at the office of complainant in the presence of complainant. She has further deposed that Bhawna took the unsigned cheque i.e. the cheque in question on the pretext of arranging the loan. In fact, she cannot read and write in English and the particulars of the cheque in question are not written by her. As she had not taken any loan from the complainant, she had no legal liability against the complainant, therefore, there was no need to answer the legal notice and in fact the cheque in question been misused by the complainant. Accused opted to lead defence evidence.
13. Smt. Bhawna is examined as DW1. She has deposed that she had put the loan file of 4 members to Naresh Sharma. The name of 4 members are Ms. Sharda, Ms. Salma, Ms. Radha and herself. Three loans were admitted and Radha's loan file got cancelled because of address issue. She had address of U.P. She asked for her documents but he kept on delaying. Then her husband met with an accident then they forgot to ask for the file in return from Naresh. She does not want say anything.
14. DW1 was cross examined on behalf of the complainant. During cross examination, DW1 has stated that the date on which she filed the loan file was 15 Nov 2020. The file was printed file. She has voluntarily deposed that the cheque on the file was original. No receipt, letter, notice was given by Sh. Naresh Sharma with regard to alleged cancellation of loan of Ms. Radha. She has admitted that she had not sent any letter, receipt, notice with regard to asking for documents/file. She has voluntarily stated that she visited the office of Sh. Naresh in regard to returning of file/documents. She visited the office of Sh. Naresh in regard to returning of file/documents on last week of Nov 2020 but she cannot tell the exact date. She had not filed any complaint/F.I.R against Sh. Naresh nor she had ever sent any legal notice CC No. 221/22 Naresh Sharma vs Radha Page 7 of 20 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2023.12.08 16:54:42 +0530 to get the said file in return. She had not brought any document related to the accident of her husband. Radha hasn't asked her about the legal notice served by Sh. Naresh Sharma to Radha. She had admitted that Radha did not file any complaint against her or Naresh Sharma regarding not returning her documents. She is not aware whether Radha had paid loan amount till date or not and only because of this reason the present case has been filed against her.
15. Smt. Salma is examined DW2. She has deposed that Ms.Bhawna was agent for filing the loan. She took 4 files. Three loan files were passed and Radha's loan file got cancelled. Radha didn't took the loan from Naresh Sharma as her file didn't get passed because of some issue. She did not want to say nothing.
16. DW2 was cross examined. During cross examination she has deposed that she did not remember date, month and year however it was 2.5 years ago when Bhawna has taken 4 loan files and given to Sh. Naresh Sharma. There was no company such as N.H.S Nidhi Benefits Ltd. She has admitted that she had taken the loan of Rs 20,000/- and that has been repaid by her. She did not take any clearance slip after repaying the loan. She hadnot taken any loan from N.H.S Nidhi Benefits Ltd. and what to say Rs 30,000/-. She had taken a loan of Rs 30,000/- from Sh. Naresh Sharma. Radha did not say anything about the loan or document filed to DW2. She had denied all the suggestions put to her during cross examination. Thereafter, DE stands closed.
17. It has been argued by Ld. Counsel for the complainant that case of the complainant is proved and cheque is also in the favour of the complainant, therefore, accused must be convicted and amount should be recovered. On CC No. 221/22 Naresh Sharma vs Radha Page 8 of 20 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2023.12.08 16:54:36 +0530 the other hand, Ld. Counsel for accused has argued that accused has been falsely implicated in this case and that complainant has not been able to prove its case beyond reasonable doubt against the accused.
18. I have heard ld counsel for the complainant and Ld. Defence counsel for accused & considered the respective arguments as well as gone through case file very carefully.
19. The essential ingredients in order to attract Sec. 138 of NI Act, 1881 are as following:
i) The cheque for an amount is issued by the drawer to the payee/complainant on a bank account being maintained by him.
ii) The said cheque is issued for the discharge, in whole or in part of any debt or liability.
iii) The cheque is returned by the bank unpaid on account of insufficient amount to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with the bank.
iv) The cheque is presented within 3 months from the date on which it is drawn or within the period of its validity.
v) within 30 days a legal demand notice is issued by the payee or the holder in due course to the drawer of the cheque on receipt of information by him from the bank regarding the dishonour of the cheque.
vi) The drawer of the said cheque fails to make payment of the said amount of the money as demanded in the legal demand notice to the payee or the holder in due course within 15 days of the reciept of said notice.CC No. 221/22 Naresh Sharma vs Radha Page 9 of 20 Digitally signed by SNEHIL
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vii) The debt or other liability against which the cheque was issued is legally enforceable.
20. Now, coming to the facts of the present complaint case keeping in view the essential ingredients of section 138 of NI Act. In this case, it is not disputed and duly admitted by the accused that the cheque in question bears her signatures, however she denies the other particulars fulfilled by her but admits that the same was given to the complainant through Bhawna as a security cheque in lieu of procuring loan from the complainant. Pronote Ex. CW1/1 which also admitted by the accused. Therefore, it can be said that the cheque was drawn by her in favour of the complainant. Therefore, the essential ingredient (i) as discussed in the preceding paragraph stands fulfilled. Accused has further admitted the fact of dishonour of the cheque in question, hence, another essential ingredients (iii) and (iv) also stand proved by the complainant.
21. Accused has further admitted the fact of receiving the legal demand notice sent to her by complainant during notice, her statement recorded under section 294 Cr.P.C. and also during statement of accused and submits that there was no need to answer the legal notice. Also as the accused has appeared before the court and matter came in her knowledge and documents were supplied to her after summoning, still accused chose not to reply back the legal notice or to pay the due amount. Moreover, the address mentioned at legal notice is same as mentioned by the accused in her bail bond and postal receipts also show that legal demand notice were served at the given address. So it can be rightly said that she has received the legal notice. Hence, essential ingredients (v) and (vi) also stand proved.
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22. In the landmark decision of Hon'ble Supreme Court of India in matter of "C. C. Alavi Haji Vs. Palapetty Mohd. & Anr." reported in (2007) 6 Supreme Court Cases 555 held that as under:-
"Any drawer who claims that he did not received the notice sent by post, can, within 15 days of receipt of summons from the court in respect of complaint Under Section 138 of the Act, make the payment of the cheque amount and submit to the court that he had made the payment within 15 days of the receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complainant is liable to be rejected. A person who does not pay within 15 days of receipt of summons from the court along-with the copy of complaint Under Section 138 of the Act, can not obviously contend that there was no proper service of notice as required Under Section 138, by ignoring statutory presumption to the contrary Under Section 27 of G. C. Act and 114 of the Evidence Act."
23. Now coming to the last and the remaining core ingredients (ii) and
(vii) of Section 138 of NI Act as discussed above and the real issue of controversy herein i.e. whether the cheque in question was issued in discharge of any debt or liability, whole or in part and whether the same is a legally enforceable debt.
24. In the present case, it is submitted by the accused as argument that the cheque was given for security purpose to the complainant through Bhawna and not in lieu of the loan amount as her loan was rejected. But the accused has not deposed that why she has executed the promissory note and why she has not given the reply to legal notice. It is also on record that even after filing a case the accused has not repaid the total amount to the complainant and choose to contest the case. During the case while framing the notice she has failed to inform the ultimate date of the payment.
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25. With respect to the point of blank cheque raised by the accused, it is pertinent to mention that Section 20 of the NI Act talks about inchoate instruments. As per this provision if a person gives a duly signed cheque which is either blank or partly filled then he is deemed to have given implied authority to the holder to fill up the particular in it and complete the cheque, thus making the draw liable for the payment mentioned in it. It is immaterial that the cheque may have been filled in by any person other than the drawer, when the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provision of section 138 would be attracted. At this stage, reference may be sought from the decision of Hon'ble Supreme Court in the case of Bir Singh vs. Mukesh Kumar (2019) 4 SCC 197 wherein the Apex Court while upholding the validity of blank signed cheque in a proceeding u/s 138 of the Act has interalia held the following:
"If a signed blank cheque is voluntarily presented to a payee,towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence."
26. It is a settled of the proposition of law that a cheque issued as security, pursuit of financial transaction, cannot be considered as a worthless piece of paper. It is given to ensure the fulfilment of an obligation undertaken. If a cheque issued to secure repayment of a loan advanced and if the loan is not repaid on or before the due date, the drawee would be entitled to get the cheque for payment, and if such a cheque is disordered, the consequences contemplated under section 138 NI act would follow. Reliance is placed upon Sripati Singh v. State of Jharkhand,2021 SCCOnline1002 . Further as to CC No. 221/22 Naresh Sharma vs Radha Page 12 of 20 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2023.12.08 16:53:54 +0530 the plea of cheque being a security cheque, it was held in ICDS v. Beena Shabir & Anr. (2002)6 SCC 426, that security cheques would also fall within the purview of section 138 NI Act and a person cannot escape is liability unless he proves that the debt or liability for which cheque was issued as security is satisfied otherwise.
27. In this case, the statutory presumptions under section 118(a) and 139 would be raised in favour of the complainant. Since, the accused has admitted the execution of impugned cheques and signatures on cheque in question, the aforementioned statutory presumptions would be raised in favour of the complainant regarding the fact that the impugned cheques have been drawn for consideration and issued by the accused in discharge of legally enforceable debt.
28. It has been held by a three-judge bench of the Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption contemplated under Section 139 of NI Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence. The principles pertaining to the presumptions and the onus of proof were recently summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 as under:
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarize the principles enumerated by this Court in the following manner:
25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.CC No. 221/22 Naresh Sharma vs Radha Page 13 of 20 Digitally signed by SNEHIL
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2023.12.08 16:53:46 +0530 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come in the witness box to support his defence."
It is explicit in the NI Act that the said presumption shall remain untill contrary is proved.
29. Perusal of record shows that CW1 has deposed that accused was facing financial crises in November 2020 and he advanced a loan of Rs. 2 lacs on 01.12.2020 for one year and the accused executed a promissory note and promise to return the said loan before 06.12.2021. These dates are never challenged by the accused in cross examination. Accused has not objected the financial crises faced by her as deposed by the complainant. Same is also corroborated by DW1 by stating that she has put the loan file of accused Radha to the complainant on 15.11.2020. Also accused always admitted that she was in need of the loan.
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30. Perusal of record also shows that during framing of notice, accused herself has submitted that cheque in question bears his signature, however at the time of statement of accused she has deposed that two unsigned cheques including the cheque in question were taken by Bhawna. Therefore, there are contradiction in the defence taken by the accused herself, moreover the reason of return of cheque shows that it was returned due to "insufficient funds" and not because of "signature differ".
31. Also, the entire defence of the accused is based upon the lady Bhawna and as per the accused Lady Bhawna was working as agent of the complainant and to establish the same the counsel for the accused has asked the questions from the complainant in cross examination, which complainant had denied. It is pertinent to mention there that the said lady Bhawna appeared in witness box as DW1 and had not produced any document or salary statement or any whatsapp chat or any authority letter or ID proof issued by the complainant to prove that she had worked for the complainant at some point of time. Therefore, the defence of the accused is not giving any benefit to her.
32. It is further found from the statement of accused that she knew the complainant through Bhawna and Bhawna promised her to arrange a loan from the complainant and in regard of the same Bhawna took cheque in question and her documents. Therefore, it is not deposed/stated by the accused at any point that when, where and how Bhawna took cheque in question from her. It is also not stated/mentioned by accused and DW1/ Bhawna that when and where she has provided the same to the complainant.CC No. 221/22 Naresh Sharma vs Radha Page 15 of 20 Digitally signed by SNEHIL
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33. It is also submitted by DW1 that no receipt, letter, notice was given by complainant with regard to alleged cancellation of loan of the accused and she visited the office of the complainant in last week of November 2020 with regard to return of the documents of the accused. However, no proof of the said facts is brought by the accused in evidence.
34. Perusal of record including the evidence affidavit of complainant shows that loan was advanced to accused in month of December and pronote was also executed in the month of December.
Therefore, no question arise with respect to cancelling of loan in November 2020. Further, accused herself has admitted that she has given a signed pronote to Bhawna which also bears the date of December 2020 including the signed and thumb impression of the accused which accused did not challenge. There is one more contradiction regarding the pronote found in the statement of the accused as firstly accused deposed that Bhawna took the unsigned cheque and blank pronote and documents from her. While in other answers during her statement U/s. 313 Cr.P.C. she had signed the pronote and receipts at the office of the complainant and in the presence of the complainant. Furthermore, accused has nowhere deposed that when she visited the office of the complainant. Also accused has not shown that she has arranged the loan from somewhere else after her loan got rejected by the complainant because as per her, she needed the loan at that time.
35. No message or notice or complaint or application is shown by the accused or defence witness to prove that they had shown any protest to the complainant with regard to cancellation of the loan and also with regard to not returning of the documents. Rather it is correctly admitted by DW1 that she has not filed any complaint/FIR and sent any legal notice to CC No. 221/22 Naresh Sharma vs Radha Page 16 of 20 Digitally signed SNEHIL by SNEHIL SHARMA SHARMA Date: 2023.12.08 16:53:28 +0530 complainant. It is also correctly admitted by DW1 that accused has not filed any complaint against her or the complainant. This fact is also not digestable as why the accused has not made the complaint against DW1 Bhawna, through whom and with whom all the transaction took place.
36. It is also deposed by DW1 that she is not aware accused Radha had paid loan amount or not and only because of this reason the present case has been filed against her. This fact is contradictory with earlier statement made by DW1 as per which no loan amount is provided to her.
37. Some contradiction is also found in the statement of DW2 Salma who also stated that DW1 Bhawna was agent for filing the loan and she took 4 files. As per the DW1 Bhawna, the fourth file was of her only. Therefore, it is hard to believe that DW1 Bhawna herself has told to DW2 Salma that she has taken 4 files including herself for the loan. It is also deposed by DW2 that three loan files were passed and accused's loan file got cancelled. However, she nowhere deposed that how and where she came into knowledge that accused file got cancelled because during the cross examination DW1 deposed that accused Radha did not say anything about the loan and documents filed to her.
38. Further, the fact that the complainant knows the accused as deposed by complainant is corroborated by the statement made by the accused during framing of notice and also in statement of accused U/s. 313 Cr.P.C. that she know the complainant. Moreover, during framing of notice the accused has stated that she demanded back the cheque from the complainant and complainant did not return the same stating that same is in possession of Bhawna and she had not taken her cheque back from Bhawna. However, she CC No. 221/22 Naresh Sharma vs Radha Page 17 of 20 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2023.12.08 16:53:22 +0530 has not deposed dates, place, complete transaction that where and when she has met the complainant and requested to return the cheque.
39. No doubt is raised upon the financial capacity of the complainant and also on the story deposed by the complainant or amount taken by the accused herself as she has admitted that she needed the loan. Mostly all the facts are admitted by the accused during the notice, U/s. 294 Cr. P.C. and in her statement recorded U/s. 313 Cr.P.C. It cannot be a ground that she does not owe the liability towards the complainant for the cheque in question, once the cheque is drawn in favour of the complainant. It was the duty of the accused to keep money in her bank account to discharge her legal liability against the complainant. Bonafide conduct of the accused can be said if accused would have paid the said due amount after receiving the legal notice, even after issuing summons or even during the trial but no such circumstances existed. Therefore, circumstances are sufficient to prove that cheque was issued in lieu of legal and enforceable debt. Denial of the liability of cheque amount by the accused during framing of notice is not a ground of acquittal without any evidence/witness/record etc. Non production of any repayment document by the accused is also suggesting adverse inference against her. Mere verbal submission of the accused is no evidence.
40. On the aspects of preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the court to conclude either that the consideration did not exist or that its non existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. As per the facts and circumstances of this case accused has not led any cogent and believable evidence to support her defence.
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41. The Hon'ble Supreme Court in Rohitbhai Jivanlal Patel vs State of Gujarat and Another 2019) 18 SCC 106 and in various other rulings have time and again, emphasized that though there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfil the requirements of rebuttal as envisaged under section 118 and 139 of the NI Act. Further, it has been held in Rajesh Agarwal v. State, 2010 SCC online Del 2501 that:-
"9. .....There is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent. If an accused has a defence against dishonour of the cheque in question, it is he alone who knows the defence and responsibility of spelling out this defence to the court and then proving this defences is on the accused....."
42. Moreover, it is also not the case of the accused that complainant is not having the financial capacity or the complainant has misused the cheque or her cheque has been misplaced/lost or her cheque has been stolen, for which a complaint has been filed or liability amount is wrongly mentioned on the cheque or the accused has not drawn the cheque in favour of the complainant or cheque was issued for some other arrangement or she has discharged her liability towards the complainant etc. No ommision or contradiction is also brought on record by the accused. No circumstances are shown which can attract benefit of doubt in favour of the accused.
43. Keeping in view the facts and circumstances of the present case and the settled position of law in this regard, the presumption of law as per section 118(a) and section 139 of NI Act clearly come in picture for the favour of complainant and his burden of proving the fact of issuance of cheque in question in discharge of legally enforceable debt stands discharged CC No. 221/22 Naresh Sharma vs Radha Page 19 of 20 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2023.12.08 16:53:10 +0530 and the accused has miserably failed to discharge her reverse onus. Accordingly, the ingredients mentioned at (ii) & (vii) of Para No. 19 of this judgment are also fulfilled.
44. In my view, the complainant has proved that the accused had issued the cheque in question in his favour for discharge of the legally enforceable liability and has proved his case against the accused for the offence under Sec. 138 Negotiable Instruments Act. Resultantly, the accused RADHA is, thus, held guilty and stands convicted for the said offence.
Digitally signed by SNEHILSNEHIL SHARMA SHARMA Date:
2023.12.08 16:52:58 +0530 Announced in Open Court (SNEHIL SHARMA) today on 08.12.2023 MM (NI Act) Digital Court, NORTH EAST,KARKARDOOMA, DELHI Copy of judgment be given free of cost to the convict.CC No. 221/22 Naresh Sharma vs Radha Page 20 of 20