Delhi District Court
Smt. Asha Rani vs Bajrang Lal Meena on 28 June, 2023
1
IN THE COURT OF DR. SATINDER KUMAR GAUTAM
PRESIDING OFFICER SPECIAL COURT(NI ACT) SOUTH WEST,
DWARKA
CC NO. 25378/2017
CNR No. DLSW02035508/2017
SMT. ASHA RANI VS BAJRANG LAL MEENA
P.S NAJAFGARH
s.no
1 Name and address of the Smt. Asha Rani w/o Sh. Devender
complainant singh, R/o GM-57, Gupta Market,
Near Anaj Mandi, Najafgarh, New
Delhi
2 Name and address of accused Sh. Bajrang Lal Meena s/o Sh. Naru
Ram Meena R/o RZ-A 111, Room
No. 4, Gali no. 10 ,Mahipal Pur New
Delhi
ASI, Belt No. 5735/D, P.S No.
28810024, C/o DCP Police Control
Room, Model town-II, Delhi
3 Offence complained of u/s 138 r/w section 142 of NI Act as
amended up to date
4 Plea of accused Pleaded not guilty.
5 Date of institution 12.12.2017
6 Final Order Acquitted
CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 1 /26
2
7 Date of such order 28.06.2023
JUDGMENT
INTRODUCTION
1. Vide this judgment, the present case filed by complainant Asha Rani against accused Bajrang Lal Meena for offence u/s 138 of Negotiable Instrument Act,1881 shall be disposed off.
Factual Matrix of the case
2. The basic facts as alleged by complainant are that the accused approached her for friendly loan of Rs.3,50,000/-. On 16.6.2017, complainant paid Rs. 1,50,000/- through NEFT from her bank and Rs.50,000/- in cash and remaining Rs.1,50,000/- was paid by the complainant through NEFT on 17.6.2017 from her account in account of accused. The accused in discharge of his liability issued three cheques bearing no. 002940, 002928, of Rs.1,50,000/- each and cheque 002921 of Rs. 50,000/- all dated 07.11.2017 all drawn on Axis Bank Asaf Ali Road, New Delhi.
3. Thereafter, the complainant presented the said cheques issued by accused in his bank. Cheque no. 002921 was returned with the reason " Funds Insufficient" and cheques no. 002928 abd 002940 returned with the reason "Drawer Signature Differs vide cheques returning memo dated 10.11.2017. Thereafter, the complainant sent a legal notice dt. 13.11.2017 CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 2 /26 3 which was returned back as remark "Refused" on dated 14.11.2017. It is further averred despite having knowledge of legal notice, the accused failed to pay the cheque amount. Thus the present complaint.
Pre-summoning evidence.
4. On 12.12.2017 pre-summoning evidence lead by complainant as CW1 ( complainant witness) and tendered her evidence by way of affidavit Ex.CW1/1 along with documents Ex,CW1/A to Ex. CW1/E and thereafter, Pre-summoning evidence was closed.
Cognizance taken
5. Considering Pre-summoning evidence of complainant and material on record court summoned the accused vide order 12.12.2017 for facing trial u/s 138 cr.p.c.
FRAMING OF NOTICE.
6. On 30.05.2018 notice u/s 251 cr.p.c was framed against the accused to which he pleaded not guilty and claimed for trial. In defence , the accused stated as under :
" I have no acquaintance with the complainant. I have not issued the cheques in question to the complainant. The cheques in question does not bear my signatures. The cheques in question were lost while I was traveling in a bus.
CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 3 /26 4 The accused has misused the cheques in question. I had also lodged an on line report regarding the loss of cheques in question on 10.11.2017." The accused further stated that he has not received legal notice.
COMPLAINANT EVIDENCE
7. On 28.8.2018 application u/s 145 (2) Negotiable Act ( herein after referred as NI ACT) filed and was allowed considering defence taken in reply to notice u/s 251 cr.p.c and matter was listed for cross examination. Thereafter, on 23. 10.2018 the complainant step in witness box as CW1 in post summoning evidence and adopted her pre-summoning evidence by way of affidavit Ex. CW1/1 and was cross examined at length by ld. Counsel for the accused. and thereafter, complainant evidence was closed. Matter was listed for statement of accused.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE.
8. On 1.4.2019, statement u/s 313 cr.p.c of the accused was recorded wherein he denied all the incriminating evidence put to him. He reiterated his plea of defence as taken in notice u/s 251 cr p.c that he is not acquainted with complainant so question of demanding loan from her does not arose. He further stated that he did not hand over the cheques in question to the complainant and the said cheques were lost for which he has alreday lodged on line complaint on 10.11.2017. Regarding dishonour of cheques, it is matter of record. He did not refuse to accept legal demand CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 4 /26 5 notice sent by the complainant. The cheques in question do not bear his signature therefore he wants to examine bank official to prove this fact. The accused opted to lead defence evidence.
9. In order to prove his defence, accused examined as many as three DWs.
Sh. Anmol Bhatnagar, Branch Manager of Axis Bank Mahipal pur was examined as DW1 on 01.11.2019 who deposed that no account of accused is maintained in their branch but the account of accused is in Asaf Ali Road, New Delhi Branch. He further stated that they had verified signatures of the accused with the specimen signatures as they were authorized to do so and account opening form of accused is in custody of home branch of the bank of the accused.
10. Thereafter, On 17.3.2020, accused examined DW2 Sh. Sagar Singh, Sales Officer, Axis Bank, Asaf Ali Road. He stated that he is a summoned witness and do not know anything about documents EX CW2/A. He further stated that Bank Manager Sh. Anurag Garg asked him to take the said documents and give in the court.
11. Thereafter, accused examined third witness but number of the witness was given inadvertently as DW2 Sh. Anikit Tewatiya, Assistant Manager, Axis Bank Ltd. ( Number of this witness was to be as DW3 in place of DW2). This witness simply placed on record documents i.e account opening form of accused and proved as Ex. DW2/A, Specimen signature of accused and his account statement for the period of 1.11.2017 to 10.11.2017 alongwith cheque clearing return memo and proved the CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 5 /26 6 same as Ex. DW2/B, Ex. DW2/C and Ex. DW2/D respectively. Thereafter witness was discharged after giving opportnity to the complainant for cross examination. Thereafter, defence evidence was closed vide separate statement of the accused and matter was listed for final arguments.
12. Having heard the contention of learned counsel's and pursued the material on record as well as judgement as cited. Ld. Counsel for parties also filed written submissions.
CONTENTIONS OF COMPLAINANT
13. Ld. Counsel for complainant reiterated the averments made in her complaint and further contended in the written submission that as per statement of account of complainant CW1/D1 amount of Rs.3 lacs was credited in the account of wife of accused on two dates i.e 16.6.2017 and 17.6.2017. It is further contended that the accused could not prove that he had not issued the cheques in question towards liability nor the accused prove as to how his cheques came into possession of the complainant or her husband. It is further contended that no document placed on record by the accused to prove that the cheques in question were lost while travelling in bus though, he took plea of defence that he had lodged complaint with regard to loss of cheques online but no online report has been filed. Apart from this, even after receiving legal notice, the accused did not take any legal action against the complainant or her husband about misusing his cheques in question. It is further contended that statment of account Ex. CW1/D-1 filed by the complainant clearly shows firstly Rs.1,50,000/- was CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 6 /26 7 tried to transfer in the account of accused from the account of complainant but transaction could not be completed thus, at the request of the accused said amount was transferred in the account of wife of accused. It is further contended that accused failed to provide any reason with regard to transaction of transferring amount of Rs.1,50,000/- which failed and later on transferred in account of wife of accused. It is further contended that it is admitted fact and crystle clear that Rs.3,00,000/- was transferred from the account of complainant in the account of wife of accused . The accused has no where stated that as to why Rs.3,00,000/- has been credited in account of wife of accused. Not only this, accused remained kept mum while reply to notice u/s 251 and statement u/s 313 cr.p.c that in fact amount of Rs.3 lac was credited in account of his wife from the account of complainant at his instance .
14. It is further contended that as per defence of accused, his cheques were lost in the bus and he lodged complaint to this effect on 10.11.2017. Interestingly, the accused issued the cheques dated 7.11.2017 and after knowing the fact the same have been dishonoured vide return memo dated 10.11.2017, he immediately lodged complaint on 10.11.2017 purposely for creating defence. When the cheques were with bank for encashment before 10.11.2017 then question of missing the said cheques does not arise. Second plea of accused is that cheques do not bear his signature but failed to prove that cheques do not bear his signature except document Ex.CW2/A placed by DW1 Sagar singh . The accused also failed to place on record any complaint made by him with regard to loss of cheques as such, his plea of defence is not reliable without any cogent & trustworthy CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 7 /26 8 evidence. So far as the reason for dishonour of cheque is concerned , it shows that accused with malafide intention put his signature in different way so they were returned with reason " Signature of drawer differs" The plea of defence taken by accused in notice u/s 251cr.p.c and statement u/s 313 cr.p.c that the said cheques were lost in bus is totally contrary to the suggestion put on behalf of accused to the complainant during cross examination which is not trustworty without filing any so called complaint on record. Accused even could not prove as to how the said cheques came into hands of complainant. Under the said circumstances , it may be presumed that the cheques were issued by accused towards the loan which was credited in account of his wife and the accused is taking benefit for crediting the amount in account of his wife and not in his account only to grab the money. On the other hand, the complainant by proving her statement of account vide Ex. CW1/D1 Specifically shows that Rs.1,50,000/- firstly tried to transfer in the account of accused from the account of complainant on which accused did not put any question nor disclosed that for what purpose the said transaction was made by the complainant.
15. It is further contended by ld. Counsel for complainant that mere plausible explanation is not sufficient to disprove the complainant's case. Even bank witness also did not disclose anywhere that the bank received any intimation with regard to loss of said cheques nor had any instruction to stop the payment against the loss of cheques. It means no cheque was lost and accused issued the cheques towards liability to repay the loan amount credited in the account of his wife. Reliance is placed on CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 8 /26 9 judgment of Hon'ble Supreme Court in case State of Maharastra Vs. Krishnamurti, AIR 1981 SC 617 wherein it has been held that :
" A minor discrepancy between the statement of a witness in examination in chief and in cross examination should not affect his credibility"
16. Further reliance is placed on judgment State of Punjab Vs Wassan Singh A.I.R 1981 SC 697 wherein it has been held that "Truthfulness should be tested on the whole."
17. Ld. Counsel for complainant also relied on judgment in case Komalam Gopi Vs. T.K Mohan Kumar and Anr MANU /KE/0504/2008, wife had issued a cheque in favour of payee in discharge of liability of her husband. Plea taken by her that ingredients of offence under Section 138 of the Act were not attracted, since she had not issued the cheque in discharge of her liability, was rejected. It was held as under:-
" 3......It needs to be noticed that Section 138 of the N.I. Act comes into play in relation to cheques issued by a person to another person for the discharge, in whole or in part, of any debt or other liability. The explanatin at the foot of that section provides that "debt or other liability" means a legally enforceable debt or other liability. Neither does that explanation, nor the charging provision in Section 138 confines its operation to be only in relation to cases where cheques are issued in discharge of debt or liability of the person issuing the CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 9 /26 10 cheque. The law provies for discharge of debt by a person, even if it is a debt of another. Such transactions, where one discharges debt of another , is an instance of discharge of debt or other liability. If "A" discharges a legally eforceable debt or other liability of " B" by making a payment to "C", then, if that is done by "A" issuing a cheque to " C", it becomes a cheque issued in discharge of the legally enforceable debt or other liability of "B" and is therefore, debt or other liability for the purpose of Section 138 of the N.I. Act. So much so, the arguments on behalf of the accused that she issued the cheque for discharge of liability of her husband DW4 would not save her from the penal provision of Section 138 of the NI Act."
18. It is further submitted that the accused did not give any reason to transfer of amount in the account of his wife by complainant on same dates as averred by complainant for granting loan itself. It is admitted that an amount of Rs. 3Lac in total was transferred in the account of wife of accused. It is also evidence from Ex. CW1/D1 that on 16.6.2017 an amount of Rs.1,50,000/- was also transferred in the account of accused, however same was bounced back due to some technical issues. No reason has been asserted by the accused regarding said transaction thus, the complainant proved her case by way of oral and documentary evidence placed on record. The accused lodge complaint online on the day of dishonour of cheque i.e on 10.11.2017 it means when he came to know regarding dishonour of cheque thereafter, he lodged complaint and created his false defence that cheques were lost but no complaint has been filed on CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 10 /26 11 record. If the cheques were lost then as to how the said cheques were in the bank from where it were bounced, interestly on the same day of lodging report by accused is not reliable & trustworthy. Ld. Counsel for complainant refer Section 118 of NI Act which provides :
" Presumptions as to negotiable instrument: until the contrary is proved , the following presumption shall be made:
(a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such negotiated or transferred was accepted, indorsed. Negotiated or transferred for consideration"
19. Ld. Counsel relied on Section 139 of the NI Act which says :
"Presumption in the favour of holder, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature refered to in Section 138 for discharge, in whole or part of any debt or other liability."
20. It is further contended that accused denied that he has not received legal notice but did not disputed that address mentioned on it as his incorrect address. As such reliance is placed on judgment "C.C. Alvi Haji Vs. Palapetty Muhammed & Anr. S.L.P ( Crl) No. 3910 of 2006 wherein summerized the principle related to " Service of notice" and held that :
"when notice has been sent by registered post to the address of the drawer, service of notice is deemed to have been effected under section 138 N.I Act."
CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 11 /26 12
21. Ld. Counsel for complainant also relied on judgment titled as Basalingappa Vs Mudibasappa, (2019) 5 SCC 418 wherein section 118(a) and 139 is described in detail. It is clear that for offence u/s 138 of the Act, the presumption under Section 118 (a) and Secton 139 of NI Act have to be compulsory raised as soon as execution of cheque by the accused is admitted or proved by the complainant and thereafter, burden is shifted to the accused to prove otherwise.
22. It is further contended by the complainant that accused supressed the material fact that as due to technical issue, the transaction of transfer money in his account from account of complainant failed, so the complainant transferred loan amount in account of his wife at the instance of him. Now his plea of defence is nothing but to grab the money and to get rid from his enforceable debt liability and thus, the complainant has duly proved her case that accused committed offence u/s 138 NI Act CONTENTION OF ACCUSED.
23. Per contra, ld. Counsel for accused contended that as per averments made in the complaint, the complainant avered that she paid Rs.50,000/- in cash but no date of the said cash payment is mentioned and no receipt of the said payment is filed nor disclosed CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 12 /26 13 even name of any person in whose presence she had given the said amount of Rs.50,000/- The complainant has made her averments / version which is contradictory itself with regard to approaching for loan by accused and issuance of cheques as well and disbursing of loan.
24. As per contents made in her complaint she stated at one place that " the accused is known to the complainant for last many years and having friendly relation with the complainant. The accused approached to the complainant for a friendly loan of Rs.3,50,000/-.." Per contra, she in her cross examination stated that "... I have not met the accused prior to meeting him for the first time in court. The accused had approached my husband for a friendly loan ..." Not only this, on the other hand, she stated that " the accused is known to my husband as the accused is the colleague of my husband. I know the accused for the past many years. The accused used to frequently meet my husband..." Immediately she stated that " I cannot say as to whether the accussed and my husband have ever worked together.." Further she stated that "... It is correct that the accused has not approached me directly for the availing the alleged friendly loan.." Thus her statement with regarding to known to the accused and approaching for loan is not reliable.
CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 13 /26 14
25. Further on the point of disbursing of loan, she averred in her complaint that she had paid sum of Rs.1,50,000/- on 16.6.2017 through NEFT and again paid on 17.6.2017, a sum of Rs.1,50,000/- through NEFT from her account to the account of accused. She further alleged that she paid Rs.50,000/- in cash to the accused. But she has not disclosed date of payment of said Rs.50,000/- in cash and no receipt of payment is placed on record. Again in her statment during cross examination on 23.10.2016 she stated that " Sum of Rs. 3 lacs was transferred in two installments from my bank account maintained with Oriental Bank, Najafgarh, Delhi to the bank account of the accused. My husband had transferred the above stated amont through my bank account..." In order to prove, she filed on record her statement of account showing transfer of amount through NEFT. She even denied suggestion that transfer of amount of Rs.3 lac on 16.6.2017 and 17.6.2017 has not been made in the bank account of the accused. Thereafter during her further cross examination when she filed on record a certificate issued byher bank Oriental bank of Commerce dated 12.12.2018 which was proved as Ex. CW1/D2, then she stated that she had transferred the same amount in the account of wife of accused on 16.6.2017 and 17.6.2017. Not only this, she also made contradictory statement by stating that " ..My husband had transferred the loan amount on my behalf from my bank account. I have no knowledge regarding the name of the person in whose bank account, sum of Rs.3 lacs was CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 14 /26 15 transferred from my account..." She also corroborated the plea of defence of accused that he had not taken any loan when she stated that " it is correct that sum of Rs.1,50,000/- each was not transferred in the bank accoount of the accussed..." "... I came to know that the loan amount has been credited in the bank account of the wife of the accused after the last date of hearing.." It reflects that she came to know about the same between 29.11.2018 and 25.2.2019 when her statement recorded. Earlier she was partly cross examination on 23.10.2018 and she came to know from her statement of account and certificate obtained from the bank which was filed by her on 25.2.2019 that amount was transferred in account of wife of accused. Thus, it shows that from the day of crediting the said amount till her deposition, she was not aware that in whose account, the alleged said amount was credited.
26. It is further contended by ld. Counsel for the accused that husband of complainant never appearred in witness box nor mentioned in list of witnesses. The complainant herself proved that accused and complainant are stranger and are not having any kind of relationship any point of time, CW1 during cross examination stated that " she has seen the accused first time in the court" . The complainant also failed to prodce any document that the accused was beneficiary of any alleged loan transaction as stated by her in her complaint. Further plea of defence of accused that the cheques in questin bears CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 15 /26 16 forged signature of the accused which is apparent by bank itself while dishonouring of cheques for the reasons "drawer signature differs". Even the spelling of amount is incorrect. The defence witness corroborated this fact.
27. It is further contended that prima facie on perusal of cheques shows that particulars were filled up subsequently by someone including the signatures. It is admitted fact no prudent person would issue three cheque of same date in favour of same person and same date while only one cheque may be issued for the total amont of Rs. 3.5 lacs. She also failed to prove loan transaction between complainant and accused. However, her husband did not come forward to support her story by examining himself which proves that she has made a false story, complainant also not produce any receipt for payment of Rs. 50,000/- in cash nor any witness that she had infact given the same to the accused. Even other wise, her story is contradict by her self when CW1 stated that she saw the accused first time in court it means she was not acquainted with accused nor she was having friendly relation. The complainant also did not produce "Prem" in whose account her money was transferred as per certificate as Ex. CW1/D2. The complainant failed to prove that accused issued cheque towards any liability and legal notice was served to the accused . The legal notice was received back as refused. The address shown on the legal notice is RZ A 11, whereas the address of accused is RZ-A 11, of same Mohalla. There is different of 100 houses in between the house of the accused. Complainant also failed to prove that cheques bears signature of the accused. In her cross examination, the complainant herself stated that CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 16 /26 17 "...The cheque in question was handed over by the accused to my husband and that I cannot tell as to whether the same have been filled by my husband or someother person. I cannot recall whether the cheques in question were duly filled up at the time when the same were shown to me by my husband.." The perusal of this statement shows that she even did not know whether the cheques in question were duly filled when the same were shown by her husband to her. From this, shows that the same were not filledup by accused himself.
28. Further, relied upon judgment Rangappa Vs. Sri Mohoan 2010 (3) RCR ( Criminal) 164. In the present complaint, accused has successfully able to find the hole in the complainant case. The accused is not supposed to lead any evidence in order to revert the presumption as mentioned in U/S 138 NI Act but he can rely on the documents/ statement of the complainant for the same. He also relied on judgment titled as "
Kulvinder singh Vs. Kafeel Ahmad Crl. L. P 478 of 2011" decided on 4.1.2023where Hon'ble High Court has held that the basic principle in criminal provided that the complainant has to proved it case beyond all reasonable doubts and if there is any slightest doubt about the commission of an offence, then the benefit has to accrue in favour of the accused.
29. It is also contended that as per the settled law, what is required, as preponderance of probabilities is not a rigorous standard of proof, but only so much evidence as makes the court lean in, in favour of one side and not the other. Consequently, the benfit of doubt must go to the accused. The material on record does not suggest that the accused " must be" guilty whichever way one looks at it. Ld. Counsel for accused also relied on CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 17 /26 18 judgment Basalingappa Vs. Mudibasapa ( Supra) . The complainant could not prove that accused is having any liability and on the other side accused has been successfully in establishinga probable defence ona standard of preponderance of probabilities by rebutting the presumption u/s 118 and 139 of NI Act by punching the holes in the case of the complainant doubtful. Thus the accused may be acquitted.
30. Having considered the rival submissions, material on record and perused the judgment relied upon.
LEGAL DISCUSSION
31. To bring home a liability under section 138 of NI Act, 1881, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, viz.
1. A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability;
2. The cheque has been presented to the bank within a period of three months from the date mentioned on the cheque or within the period of its validity, whichever is earlier;
3. The cheque is returned by the bank unpaid either because the amount of money standing to the credit of the 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 the bank;
4. The payee or the holder in due course of the cheque 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 40 days of the receipt CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 18 /26 19 of information by him from the bank regarding the return of the cheque as unpaid;
5. The drawer of such cheque fails to make the payment to the payee or the holder in due course of the cheque within 15 days of the receipt of the notice.
32. Unlike the prosecution, the accused has to prove his defence on probabilities by leading cogent evidence. The onus on the accused is not as stringent and rigorous as is on the prosecution even in case of a trial which proceeds on reverse onus of proof theory. The said view is endorsed by the Hon'ble Apex court in a plethora of decisions, one being, Kali Ram v. State of Himachal Pradesh 91973) 2 SCC 808 wherein it been held that:
" ... The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal"
Burden of prove
1. GRANT OF LOAN & ISSUANCE OF CHEQUE CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 19 /26 20
33. The complainant credited sum of Rs.3.5 lacs by way of NEFT i.e Rs.1,50,000/- each on 16.6.2017 and 17.6.2017 and Rs. 50,000/- in cash as per averments made by complainant in her complaint . But no receipt of cash payment produced on record. During cross examination it was transpired from the documents filed by complanant vide Ex. CW1/D-1 and her statement of account EX. CW1/D-2 certificate which shows that said payment of Rs.3 lac was credited in account of one Prem who is neither accused nor witness in the present case. Apart from that, it has also been admitted fact that said amount was not credited in the account of accused nor accused approached the complainant for loan as deposed by complainant during cross examination, wherein she stated that "The accused had approached her husband for a friendly loan. I have no knowledge regarding the name of the person in whose bank account, sum of Rs.3 lacs was transferred from my account. .." Further she stated that ".... it is correct that sum of Rs.1,50,000/- each was not transferred in the bank account of the accused.."
"...I cannot recall whether the cheques in question were duly filled up at the time when the same were shown to me by my husband...." Thus the above statement clearly shows that the averments made by complainant are self contradictory and not trustworthy. Thus the complainant has vanished her own allegation that she had granted the amount of Rs. 3 lac by way of NFT in account of accused or that the accused issued the cheque towards CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 20 /26 21 debt or liability. Thus The complainant failed to prove that accused issued cheques towards any liability is vanished and releaved him from his liability.
34. Further, plea of defence of accused that he did not refused to accept legal demand notice is not proved. Address mentioned on envelope of legal demand notice is RZ A-11 which has been reported as "
refused" On the second envelope there is report of correct address and phone number with posting information of accused but this is not reported as "served". Thus , accused also able to prove that he did not receive any legal demand notice as complainant did not examine any official of postal authority to prove that the accused had refused to accept the legal notice personally.
35. Reliance placed on judgment titled as Kumar Exports Vs Sharma Carpets ,(2009) 2 SCC 513, " This court again examined as to when complainant discharges the burden to prove that instrument was executed and when the burden shall be shifted."
36. In the present case, the accused has taken consistent stand that the cheques in question were lost while traveling in the bus also proved from the statement of complainant when stated that she CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 21 /26 22 cannnot tell as to whether the same have been filled by her husband or some other person...." It means when husband of complainant shown the cheques in question, her husband did not disclose to her from whom and from where he got those cheque that is the reason she could not tell whether the same were filled by her husband or by some other person. If the amount was credited in account of one Prem and that Prem was not called in a witness box to prove that it was Prem who is wife of accused or someone else, however, no recovery notice was issued to him.
37. In Rangappa Vs. Sri Mohan (2010) 11 SCC 441 it is held that:
" i. Presumption under Section 118 (a) and 139 N.I Act, as once the execution of cheque is admitted Section 139 of the Act, mandates a presumption that cheque was for the discharge of our debt or other liability ( through in this case execution is not admitted, signatures were differ) ii The presumption u/s 139 N.I Act is rebuttable pre-sumption and onus is on accused to raise the probable defence. The standard of proof for rebutting presumption is that of pre- ponderance of probabilities.
CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 22 /26 23 iii. To rebut the presumption, it is open to accused to reply on evidence led by her or the accused can also rely on the materials submitted by the compainant in order to raise probable defence. Inference of preponderance of probabilities can be drawn not only from material brought on record by the parties but also by reference to the circumstances upon which they rely.
Iv It is not necessary for accused to step into witness box in support of his defence Sec. 139 imposed on evidentiary burden and not a persuation burden, as held by Hon'ble Apex cout from time to time.
38. Accused relied upon on the material submitted by the complainant, in order to raise such dent in the complainant case. On perusal of complaint as well as legal notice shows that complainant has no where stated that her husband had shown the cheques to her without filling the same. Even, the complainant did not examine her husband to prove, it was he who had given cheques to her wife or shown by him or they were duly filled by him or by someone. Once rebuttal evidence is adduced and accepted by the Court, the evidential burden shifts back to the complainant and thereafter, the presumptions under Section 118 and 139 NI Act would not come to aid of the complainant.
CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 23 /26 24
39. The onus thus shifts on the complainant and the rebuttable presumption of law under Section139 NI Act thus vanishes. The complainant unable to prove that the accused is liable to pay the amount of cheques in question issued by him in discharge of his legally enforceable debt.
40. In the present case, cheques were dishonoured for the reason of "drawer signatures differs" also shows that the signatures were put by some one which could not telly from the bank record. One cheque which was found for the reason " Fund insufficient", the complanant did not place any statement of account or called any official from bank of accused to prove whether in fact he was having sufficient fund in the account or not. Thus it proves that lost cheques after founding same were misused by the complainant.
41. Mere assertion of the complainant does not come as a good defence, unless the complainant leads cogent & trustworthy evidence to prove the said assertion. Section 103 of the Indian Evidence Act provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is proved by any special law that the proof of that fact shall lie on any particular person. Section 103 of the Indian Evidence Act amplifies the general rule of Section 101 that the burden of proof lies on the CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 24 /26 25 person who asserts the affirmative of the facts in issue. The complainant's deposition on the issue involve does not inspire any confidence much confidence in order to prove the guilt of the accused. There is no bank official summoned by the complainant in order to prove the accused signed on the bounced cheque or file any application for expert opinion for comparison of the specimen and disputed signature of the accused. The address of the accused on legal notice also found to be different . No official of postal authority or tracking report or affidavit in support of service of legal notice was filed.
42. Keeping in view the aforesaid facts and circumstances as well as discussion and judgment cited by the ld. Counsel for the accused, the complainant failed to prove its case against the accused beyond all reasonable doubt. The ingredient of 138 NI Act could not be corroborated with the material placed on record by the complainant.
43. There is no incriminating evidence brought on record by the complainant against the accused, the influence of pre-ponderance of probability could not be drawn in favour of the complainant. As such the Court has come to the conclusion that the complainant has failed to prove its case against the accused beyond any shadow of doubt. Accordingly, accused Sh. Bajrang Lal Meena S/o Sh. Lalu Ram CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 25 /26 26 Meena is acquitted for offence puishable u/s 138 NI Act qua the cheque in question.
44. This judgment contains 26 pages in number and every page of this judgment is signed by me with dated.
Announced in the open Court on 28th day of June , 2023.
(DR. SATINDER KUMAR GAUTAM) SPECIAL COURT (NI ACT) SOUTH-WEST, DWARKA 28.06.2023 CC NO. 25378/2017 Asha Rani Vs. Bajrang Lal Meena 26 /26