Delhi District Court
Savita Gupta vs Arti Kakkar on 4 March, 2025
CC NI ACT NO.: 844/2022
CC NI ACT NO.: 874/2022
CC NI ACT NO.: 881/2022
SAVITA GUPTA Vs. ARTI KAKKAR
IN THE COURT OF MS. POOJA KUMARI, JMFC (NI ACT),
DIGITAL COURT-02, SOUTH, SAKET COURTS, DELHI
CC NI ACT NO.: 844/2022
CNR No. DLST02-002130-2022
CC NI ACT NO.: 874/2022
DLST02-002131-2022
CC NI ACT NO.: 881/2022
CNR No. DLST02-002129-2022
IN THE MATTER OF:
SAVITA GUPTA
W/o Sh. Naveen Bindal
R/o A-298, 2nd Floor, Shivalik, Malviya Nagar
New Delhi-110017
....Complainant
Versus
ARTI KAKKAR
Rivaaz Boutique
F-3, Kalkaji, Near Golchakkar
Delhi-110019.
.... Accused
POOJA
KUMARI
Page 1 of 30
(POOJA KUMARI) Digitally signed
by POOJA
KUMARI
JMFC (NI ACT) Digital Court-02 Date:
(South)/Saket Courts, New Delhi 2025.03.04
18:43:40
+0100
CC NI ACT NO.: 844/2022
CC NI ACT NO.: 874/2022
CC NI ACT NO.: 881/2022
SAVITA GUPTA Vs. ARTI KAKKAR
Date of institution : 09.02.2022
Summoned on : 23.04.2022 (In CC NI Act No.:844/2022)
&
25.03.2022 (In CC NI Act No.: 874/2022
& CC NI Act No.: 881/2022)
Offence Charged : U/s 138 of Negotiable Instrument Act,
with 1881
Notice u/s 251 of : 25.07.2022
CrPC
Plea of accused : Pleaded not guilty
Date of judgment : 04.03.2025
Final order : Acquittal
JUDGMENT
1. The abovementioned three (3) cases are connected matters and have arisen out of same nature of transactions, between same parties for an offence under Section 138 Negotiable instrument POOJA KUMARI Page 2 of 30 (POOJA KUMARI) Digitally signed by POOJA KUMARI JMFC (NI ACT) Digital Court-02 Date: 2025.03.04 (South)/Saket Courts, New Delhi 18:43:36 +0100 CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR Act, 1881 ((hereinafter referred as NI Act). Therefore, this court will decide the all above-mentioned three (3) cases against above-mentioned accused vide this judgment.
Complainant Case in brief:
2. Complainant and accused are known to each other and was having a friendly relation with each other. Accused was taking financial assistance from complainant and some of the amounts were duly returned to complainant which inculcate faith in the complainant. Therefore, complainant extended financial help to accused for Rs. 30 Lakhs from time to time i.e. from 2015 to 2019. After repeated requests and persuasions, in order to repay the debt, accused issued cheques bearing no. 00004 dated 25.11.2021 for Rs. 5,00,000/-, Cheque bearing no. 00005 dated 30.11.2021 for Rs. 5,00,000/-, Cheque bearing no. 00006 dated 06.12.2021 for Rs. 4,00,000/- & Cheque bearing no. 00007 dated 10.12.2021 for Rs. 4,00,000/- (In CC NI Act NO. 844/2022), Cheque bearing no. 890833 dated 30.11.2021 for Rs. 5,00,000/- (In CC NI Act NO. 881/2022) and Cheque bearing no. 000022 dated 30.11.2021 for Rs. 3,50,000/-/- (In CC NI Act NO. 874/2022) (hereinafter referred as cheques in POOJA Page 3 of 30 KUMARI (POOJA KUMARI) Digitally signed by JMFC (NI ACT) Digital Court-02 POOJA KUMARI Date: 2025.03.04 (South)/Saket Courts, New Delhi 18:43:45 +0100 CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR question).
3. The complainant presented the above-mentioned cheques in question in her bank, which got dishonoured vide return memos dated 24.12.2021 and 05.01.2022. Therefore, complainant sent a legal demand notice dated 10.01.2022, through speed post and e-mail, calling upon accused to pay the amount of cheque in question, which was duly served to accused. Since, the accused failed to pay the amount of the cheques in question within 15 days of receiving of legal demand notice, the complainant filed the present complaints under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "NI Act").
4. Upon prima facie consideration of the pre-summoning evidence, the accused was summoned vide order dated 23.04.2022 (In CC NI Act No.:844/2022) & 25.03.2022 (In CC NI Act No.: 874/2022 & CC NI Act No.: 881/2022).
5. Accused appeared and accusations under Section 251 of Cr.P.C. was explained to her in vernacular language on 25.07.2022. Accused pleaded not guilty and claimed trial. At this stage, Accused admitted being the drawer of the cheques in question and signatures therein. Accused has stated her plea POOJA Page 4 of 30 KUMARI (POOJA KUMARI) JMFC (NI ACT) Digital Court-02 Digitally signed by (South)/Saket Courts, New Delhi POOJA KUMARI Date: 2025.03.04 18:43:48 +0100 CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR of defence as follows:
"I have understood the notice put forward to me and I plead not guilty and claim trial. I admit the amount mentioned and signatures on all the cheques in question but the date and payee name was not filled in by me. I know the complainant and she used to visit my shop frequently. I have a boutique and the complainant has a jewellery business. We have done several exhibitions together as well. In 2018-19, i used to keep certain signed cheques with amount filled in for the purpose of making payment of a flat in Gaur city. The complainant used to visit my boutique frequently and spend a lot of time there. Some of her jewellery used to get sold through my boutique for which i have maintained a record and i used to give the cost price of the jewellery to her as agreed before by the complainant herself. I had no transaction with the complainant in 2020- 21. i did receive the legal demand notice from the complainant, however the complainant had also sent me another legal demand notice which had completely different details. I will produce copy of that notice at the time of my evidence. I do not know how my cheques landed in the possession of the complainant but i believe she may have taken them from my boutique as i was not visiting my boutique regularly due to my poor health around May- June, 2019. I only have a liability of approximately Rs. 50,000/- to the complainant regarding some of her jewellery which was sold from my boutique. I am willing to pay her that amount if she comes to settle the account for the same."
Complainant Evidence:
6. In the Post-summoning evidence, complainant namely Savita POOJA KUMARI Page 5 of 30 (POOJA KUMARI) Digitally signed by POOJA KUMARI JMFC (NI ACT) Digital Court-02 Date:
2025.03.04 (South)/Saket Courts, New Delhi 18:43:50 +0100 CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR Gupta was examined on affidavit being Ex.CW1/A. Complainant has tendered evidence by way of affidavit of evidence, documents exhibited and reiterated the facts as stated in her complaint.
7. Complainant was examined and duly cross examined by the ld.
counsel for accused and complainant evidence was closed vide separate statement dated 14.08.2023.
Thereafter, Complainant filed an application u/s 311 of CrPC on 02.09.2023 for adducing additional documental evidence and electronical evidence, which was allowed vide order dated 05.10.2023. Complainant got exhibited the additional document as Ex. CW-1/5 (colly.) in CC NI Act No. 874/2022 CC NI Act No. 881/2022 and Ex. CW-1/11 (colly.) in CC NI Act No. 844/2022 and further cross-examined on 30.11.2023, 09.12.2023 & 03.02.2024. After that, the complainant evidence was closed on 03.02.2024.
8. Complainant has relied on following documents to prove case:
Documents lead as evidence in CC NI Act No. 844 /2022 Sr. Documents Exhibits No.
1. Cheque bearing no. 00004 dated Ex. CW-1/1 POOJA KUMARI Digitally signed by POOJA Page 6 of 30 KUMARI Date: 2025.03.04 18:43:53 +0100 (POOJA KUMARI) JMFC (NI ACT) Digital Court-02 (South)/Saket Courts, New Delhi CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR 25.11.2021 for Rs. 5,00,000/- drawn on Bandhan Bank, Greater kailash, Delhi-48
2. Cheque bearing no. 00005 dated Ex. CW-1/2 30.11.2021 for Rs. 5,00,000/- drawn on Bandhan Bank, Greater kailash, Delhi-48
3. Cheque bearing no. 00006 dated Ex. CW-1/3 06.12.2021 for Rs. 4,00,000/- drawn on Bandhan Bank , Greater kailash, Delhi-48
4. Cheque bearing no. 00007 dated Ex. CW-1/4 10.12.2021 for Rs. 4,00,000/- drawn on Bandhan Bank , Greater kailash, Delhi-48
5. Cheque return memo dated Ex. CW-1/5 24.12.2021 with respect to Cheque no.
000004.
6. Cheque return memo dated Ex. CW-1/6 24.12.2021 with respect to Cheque no. 000005.
7. Cheque return memo dated Ex. CW-1/7 24.12.2021 with respect to Cheque no. 000006.
8. Cheque return memo dated Ex. CW-1/8 24.12.2021 with respect to Cheque no. 000007.
9. Legal demand notice dated Ex. CW-1/9 10.01.2022.
10. Speed post alongwith tracking report, Ex. CW-1/10 POOJA KUMARI Digitally signed Page 7 of 30 by POOJA KUMARI Date: 2025.03.04 (POOJA KUMARI) 18:43:56 +0100 JMFC (NI ACT) Digital Court-02 (South)/Saket Courts, New Delhi CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR print out of WhatsApp service proof (colly) and email service proof .
11. Hand-written documents, Ex. CW-1/11 receipts/parchi, bank statement, (colly) screen-shots of whatsapp chats, audio clip in pendrive and certificate u/s 65 B of IEA Documents lead as evidence in CC NI Act No. 874/2022 Sr. Documents Exhibits No.
1. Cheque bearing no. 890833 dated Ex. CW-1/1 30.11.2021 for Rs. 5,00,000/- drawn on Yes Bank, Greater Kailash-II, Delhi-48
2. Cheque return memo dated 05.01.2022 Ex. CW-1/2 with respect to Cheque no. 890833
3. Legal demand notice dated 10.01.2022. Ex. CW-1/3
4. Speed post alongwith tracking report, Ex. CW-1/4 print out of WhatsApp service proof and (colly) email service proof .
5. Hand-written documents, receipts/parchi, Ex. CW-1/5 bank statement, screen-shots of whatsapp (colly) chats, audio clip in pendrive and certificate u/s 65 B of IEA Documents lead as evidence in CC NI Act No. 881/2022 Sr. Documents Exhibits No. POOJA KUMARI Page 8 of 30 Digitally signed (POOJA KUMARI) by POOJA JMFC (NI ACT) Digital Court-02 KUMARI (South)/Saket Courts, New Delhi Date: 2025.03.04 18:44:00 +0100 CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR
1. Cheque bearing no. 000022 dated Ex. CW-1/1 30.11.2021 for Rs. 3,50,000/- drawn on Yes Bank, Kotak Mahindra Bank, South Extn. Part-II, Delhi-49.
2. Cheque return memo dated Ex. CW-1/2 24.12.2021 with respect to Cheque no. 000022
3. Legal demand notice dated Ex. CW-1/3 10.01.2022.
4. Speed post alongwith tracking report, Ex. CW-1/4 print out of WhatsApp service proof (colly) and email service proof.
5. Hand-written documents, Ex. CW-1/5 receipts/parchi, bank statement, (colly) screen-shots of whatsapp chats, audio clip in pendrive and certificate u/s 65 B of IEA
9. After conclusion of complainant evidence, Statement of accused under Section 313 read with Section 281 Cr.P.C was recorded on 23.02.2024, whereby the entire incriminating evidences were put to accused. At this stage, the accused reiterated her plea of defence recorded during the framing of notice u/s 251 of CrPC and additionally stated that she does not know about the transaction mentioned in Ex. CW-1/10 (colly) and she stated these documents as incorrect. She further stated that she had not received any payment as alleged by the POOJA KUMARI Digitally signed by Page 9 of 30 POOJA KUMARI (POOJA KUMARI) Date: 2025.03.04 18:44:03 +0100 JMFC (NI ACT) Digital Court-02 (South)/Saket Courts, New Delhi CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR complainant. She accepted the WhatsApp chats from 24.02.2020 to 09.10.2021 and submitted that the chats for which payments were discussed are regarding the jewelry business transactions.
Defence Evidence
10. At this stage, accused examined and cross-examined herself on oath as DW-1 on 02.07.2024 & 17.09.2024. Accused also examined Bank witness as DW-2 on 30.11.2024 & 11.12.2024 to substantiate her plea of defence. Accused placed and relied on following documents to prove plea of defence.
S.No. Name of Document Dated Exhibit
1. Copy of agreement for 23.06.2018 Ex. DW-1/1 sell between accused and (OSR) M/s Gaursons Hi-Tech Infrastructures Pvt. Ltd.
2. Copy of Register - Ex. DW-1/2 maintained by accused (OSR)(colly.)
3. Statement of Account of - Ex. DW-2/A accused
4. Images of cheques - Ex. DW-2/B POOJA KUMARI Page 10 of 30 Digitally signed (POOJA KUMARI) by POOJA KUMARI JMFC (NI ACT) Digital Court-02 Date: 2025.03.04 18:44:05 +0100 (South)/Saket Courts, New Delhi CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR through which accused made payment to M/s Gaursons Hi-Tech Infrastructures Pvt. Ltd
5. Authority letter by bank - Ex. DW-2/C to witness appeared on behalf of bank
11. Further, DE was closed vide separate statement dated 08.01.2025. Thereafter, case was fixed for final arguments.
12. Final arguments were advanced by both the parties and heard.
Submissions by Ld. Counsel for Complainant
13. Ld. Counsel for the complainant submitted that the accused has already admitted her signature over the cheques in question hence presumption of the cheques in question having been issued in discharge of debt or other liability arises in favour of the complainant in terms of Section 118(a) read with Section 139 of NI Act. He further argued that the accused has also admitted the genuineness and correctness of the cheques in question, return memos, legal demand notice, speed post receipt and delivery report. Ld. Counsel of complainant further argued that the complainant received no payment within 15 POOJA KUMARI Page 11 of 30 Digitally signed by (POOJA KUMARI) POOJA KUMARI JMFC (NI ACT) Digital Court-02 Date: 2025.03.04 (South)/Saket Courts, New Delhi 18:44:08 +0100 CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR days of the service of the legal demand notice coupled with the admission of the accused, duly proves all the ingredients of the offence under Section 138 NI Act. Ld. Counsel for the complainant submitted that the mandatory presumption under Section 139 of the NI Act cannot be rebutted on a bare denial but only when cogent evidence is led by the accused which has not been led in the instant case. Ld. Counsel for complainant has further submitted that complainant has placed WhatsApp chats and audio clips, wherein accused had admitted her liability towards the complainant and also documents, receipt/parchi of jeweler and account statement to show the financial capacity of complainant for the advancement of financial assistance to accused. Thus, submitted that since all the ingredients laid down under Section 138 NI Act are fulfilled and accused has failed to rebut the presumption, therefore, the accused is liable to be convicted. Ld. Counsel for complainant has referred following rulings to counter the arguments of Ld. counsel for accused and substantiate claims of complainant:
A) Hiten P.Dalal Vs. Bratindranath Banerjee (2001) 6 SCC 16 B) Basalingappa vs Mudibasappa 2019 (5) SCC 418 C) Rangappa Vs Mohan ((2010) 11 SCC 441) POOJA KUMARI Page 12 of 30 Digitally signed by POOJA (POOJA KUMARI) KUMARI JMFC (NI ACT) Digital Court-02 Date: 2025.03.04 (South)/Saket Courts, New Delhi 18:44:12 +0100 CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR D) Tedhi Singh vs Narayan Dass Mahant {CRIMINAL APPEAL NO.362 OF 2022 (Arising out of SLP (Crl) No.1963 OF 2019)} Submissions by Ld. Counsel for Accused
14. Per contra, Ld. Counsel for accused has submitted that complainant has failed to substantiate her claims of advancement of loan to accused in cash between 2015 to 2018.
Ld. Counsel highlighted that complainant has not mentioned the details regarding the dates, purpose, or circumstances under which the alleged loans were advanced as well as has also not filed any documentary evidence to prove the advancement of loan. Ld. Counsel argued that these facts cast serious doubts about the existence of the alleged transactions in absence of such crucial particulars, and strongly suggest that no such loans were advanced to accused as claimed by the complainant.
15. Ld. Counsel submitted that accused has admitted that there was business transaction between the parties and an amount of Rs.50,000/- was due and the same has been substantiated by the WhatsApp chats produced by the complainant herself. Ld. counsel pointed to page No. 33 and 42 of the WhatsApp chats, wherein an admission that the outstanding balance was only ₹33,500/- as on 24th of April 2019. Ld. counsel argued that this POOJA KUMARI Page 13 of 30 Digitally signed by POOJA KUMARI (POOJA KUMARI) Date:
2025.03.04 JMFC (NI ACT) Digital Court-02 18:44:14 +0100 (South)/Saket Courts, New Delhi CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR crucial piece of evidence, originating from the complainant, directly contradicts complainant allegations and confirmed the accused statement made at the time of framing of notice under section 251 of the CrPC.
16. It is argued on behalf of accused that accused has categorically denied the diaries entries, asserting that they are forged and were created after complainant's cross-examination, as all entries appeared on the same page of the diary, despite being purportedly from different years. Further submitted that the entries in question are found on page 69 of the diary, whereas details pertaining to them are written on pages 65 to 68. This is inherently illogical, as transactions from year 2015, 2016, 2017 and 2018 are all recorded on the same page, without any sequential order or prior endorsement by the accused. Ld. Counsel argued that such an arrangement is impossible, as the year 2015 should precede 2016, followed by subsequent years and this anomaly clearly indicates that the diary was fabricated by the complainant after her cross-examination, making it a forged document created solely to bolster her case.
17. Ld. counsel for accused submitted that the account statement relied upon by the complainant is an irrelevant, as it merely reflects withdrawal of money without any evidence to establish that the said amount was given to accused and complainant has Digitally signed by POOJA POOJA KUMARI Page 14 of 30 KUMARI Date: 2025.03.04 (POOJA KUMARI) 18:44:17 +0100 JMFC (NI ACT) Digital Court-02 (South)/Saket Courts, New Delhi CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR not examined any witness in support of her case. Ld. counsel also indicated towards income tax return of complainant, which does not contain any entry corroborating the alleged transaction. Ld. counsel further submitted that the certain slips purportedly as receipts for the sale of ornaments exhibited by complainant are not reliable for the reason that these do not bear the name of jeweler, date or specific details regarding the transactions and also highlighted that slip at page No. 12 bears the date as "4 May 2022", while several other slips merely contain numerical figures without any relevant particulars.
18. Ld. counsel further argued that audio recordings have not been admitted by the accused as there was no date or details given in the transcript also more it appears to be edited and there is no mention of amount as alleged in by the complainant. Further submitted that audio recording is not admissible in evidence as the same is not as per section 65 B of the Indian evidence act. It is further submitted that in her statement under section 313 of CrPC as well as during framing of notice under section 251 of CrPC and during her depositions, accused has consistently stated that the amounts written on the cheques were filled in by her at the instance of her husband for the purpose of purchasing a flat in Gaur city. However, during that time, a matrimonial dispute arose between them and accused was not able to visit POOJA KUMARI Page 15 of 30 Digitally signed by (POOJA KUMARI) POOJA KUMARI JMFC (NI ACT) Digital Court-02 Date: 2025.03.04 (South)/Saket Courts, New Delhi 18:44:19 +0100 CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR her shop due to her ill-health and subsequently husband of accused passed away. Ld. counsel further argued that there existed a business relationship between complainant and accused and to substantiate her version accused has exhibited the agreement to sale and shop register containing details of transactions. Further submitted that accused has examined staff from yes Bank to verify the transaction made with the builder and husband of accused was responsible for handling the flat agreement. The accused was not privy to the specific payment arrangement and seemingly filled in the amounts on the cheques as per the instruction of husband. Ld. counsel further argued that it is evident from the cheques that name of the complainant and the date were not filled in by the accused as confirmed by the perusal of cheques, therefore accused claimed that she was not involved in filling out the details of the cheques. Finally, Ld. counsel for accused concluded his argument and submitted that the lack financial capacity of complainant, absence of documentary evidence to prove the alleged loan, unreliability of documents that is diary entries, account statement, WhatsApp chats, audio recording produced by the complainant duly established plea of defence of accused. Thus, ld. counsel for accused submitted that accused has successfully rebutted the presumption lying against the POOJA Page 16 of 30 KUMARI (POOJA KUMARI) Digitally signed by JMFC (NI ACT) Digital Court-02 POOJA KUMARI (South)/Saket Courts, New Delhi Date: 2025.03.04 18:44:22 +0100 CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR cheques in question. Therefore, in the interest of justice and equity, accused is liable to be acquitted.
Counter Submissions by Ld. counsel for complainant
19. Per contra, Ld. counsel for complainant has submitted that complainant has discharged its initial burden and established the ingredients of offence u/s 138 of NI act. The presumption lies in favour of complainant which has not been rebutted by accused either by leading cogent evidence or from the case set out by complainant. It was further submitted that the mere denial cannot be held sufficient to rebut the presumption under section 139 of the NI act. Ld. counsel pointed out that the self- harming suggestion regarding ITR was put to complainant, which proves the advancement of loan. Further submitted that complainant has duly stated the amount advanced to accused by producing documents, account statement and jeweler receipts and documentary evidence would prevail over the oral evidence. Complainant has withstood during cross- examination and there is no contradiction in her deposition. It has been further submitted that jeweler receipts are duly proved as no question regarding whether the gold was sold or not and those were not of gold and silver. Further, complainant has duly Page 17 of 30 POOJA (POOJA KUMARI) KUMARI JMFC (NI ACT) Digital Court-02 Digitally signed by POOJA KUMARI (South)/Saket Courts, New Delhi Date: 2025.03.04 18:44:25 +0100 CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR explained why the receipts were not on letter head. It was further submitted that no police complaint was made regarding the stolen and misuse of cheques in question, neither payment was stopped, therefore, accused version of defence is not plausible. Ld. counsel further submitted that the bank witness has not submitted the certificate u/s 65B of IEA, therefore the photos of cheques are not admissible. On financial capacity, Ld. counsel argued that complainant need not to show at first instance that she has the capacity in 138 NI act cases. It is further submitted that in audio clips and chats, accused has duly accepted the debt and had undertaken to repay it on several occasions. On point that loan being time-barred, Ld. counsel argued that the same proves the loan advanced to accused and the same is not applicable in 138 NI act cases. Accused has failed to bring out any material contradiction in the statement of the complainant and accused is making a false claim to evade legal liability for the cheques in question. Thus, Ld. counsel submitted that complainant has proved her case beyond reasonable doubt against accused and accused is liable to convicted in the present case.
20. Heard the submissions of the Ld. counsels of the both parties and meticulously perused materials on record.
POOJA
KUMARI
Page 18 of 30 Digitally signed
(POOJA KUMARI) by POOJA
JMFC (NI ACT) Digital Court-02 KUMARI
(South)/Saket Courts, New Delhi Date: 2025.03.04 18:44:30 +0100 CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR Findings:
21. Before delving into the facts of the present case, it is relevant to discuss the law applicable to the present proceedings. To bring home a liability under Section 138 of the NI Act, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, which are:
"(a) The accused issued a cheque on an account maintained by him with a bank.
(b) The said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability, which is legally enforceable.
(c) The said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
(d) The aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
(e) The payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
(f) The drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand."
22. Once the other ingredients mentioned in the foregoing paragraph are established by the complainant, then as soon as Page 19 of 30 POOJA KUMARI (POOJA KUMARI) JMFC (NI ACT) Digital Court-02 Digitally signed by POOJA (South)/Saket Courts, New Delhi KUMARI Date:
2025.03.04 18:44:34 +0100 CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR the execution of cheque in question is admitted by the accused, a factual base is established to invoke the presumption of cheque having been issued in discharge, in whole or in part, of any debt or other liability by virtue of Section 118(a) read with Section 139 of NI Act. This is a reverse onus clause, which means that unless the contrary is proved, it shall be presumed that the cheque in question was drawn by the accused for a consideration and that the complainant had received it in discharge of a debt/ liability from the accused. In the case titled Bir Singh Vs. Mukesh Kumar, (2019) 4 SCC 197, it was held by Hon'ble Supreme Court of India that once the accused has admitted the signatures on the cheque in question, then the court is bound to raise presumption under Section 139 NI Act.
23. In the present case, in order to discharge initial burden to prove the above-mentioned ingredients, complainant relied upon her own evidence affidavit marked as Ex. CW1/A and placed on record several documents being Ex. CW-1/1 to Ex. CW-1/11 (colly.).
24. In the case at hand, since the complainant who deposed as CW-
1 has discharged initial burden on the basis of the documents mentioned hereinbefore and the admission of signatures of the accused, all the other ingredients of the offence under Section POOJA KUMARI Digitally signed by Page 20 of 30 POOJA KUMARI Date: 2025.03.04 18:44:37 +0100 (POOJA KUMARI) JMFC (NI ACT) Digital Court-02 (South)/Saket Courts, New Delhi CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR 138 of the NI Act stand successfully established. Further, since the accused has admitted signatures on the cheques in question and the fact of issuance of the same from her account, thus, the presumptions under Sections 118(a) and 139 of the NI Act arise against the accused with respect to the existence of legally enforceable debt/liability in favour of the complainant. The onus is now upon the accused to rebut the mandatory presumptions under the NI Act by raising a probable defence to show that the cheques in question were not issued in discharge of a debt/ liability.
25. Upon perusal of the record and hearing the parties at length, apropos the defence of the accused, the question which need to be decided is as follows:
Whether the accused has able to rebut the presumption lying against her for the cheques in question?
26. Complainant has placed on record cheques in question bearing signatures of accused, return memos of those cheques in question, legal demand notice, hand-written documents to show the transactions alongwith receipts/parchi for selling of gold and silver jewelry, WhatsApp chats & Audio recordings and bank statement to establish her case. On the other hand, to substantiate plea of defence accused has appeared in witness POOJA KUMARI Digitally signed by POOJA KUMARI Date: Page 21 of 30 2025.03.04 18:44:39 +0100 (POOJA KUMARI) JMFC (NI ACT) Digital Court-02 (South)/Saket Courts, New Delhi CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR box and placed on record agreement for sell of M/s Gaursons Hi-tech Infrastructures Private Limited and register depicting receiving of payment by complainant and business transaction between accused and complainant. Accused has also examined bank witness and placed on record the account statement to show that the payment to M/s Gaursons Hi-tech Infrastructures Private Limited was done through cheques. Now, by perusing of the handwritten documents i.e., Ex. CW- 1/5 (colly.) page no.- 4 to 6, it is evident that there is no receiving of accused to prove the fact that accused has received such amount on such dates. Also, it is apparent that these pages are in running number. Therefore, these documents cannot be considered as evidence for advancement of loan to accused. Further, the receipts/parchi on record i.e., Ex. CW-1/5 (colly.) page no.- 8 to 18 neither bears signature nor any stamp. These receipts/parchi appears to be simply calculations. There is no date on receipts/parchi except at page no. 12, in which date is mentioned as 4 May 2022. Therefore, these receipts/parchi also cannot be relied upon as a proof of selling of jewelry at the relevant period of time. Further, the account statement of complainant i.e., Ex. CW-1/5 (colly.) page no.- 19 to 28 mentions the amount of withdrawal as Rs. 100000/- on 14th May 2015, ₹ 50000 on 6th of June 2016, ₹ 50000 4th of March POOJA Page 22 of 30 KUMARI (POOJA KUMARI) Digitally signed by POOJA KUMARI JMFC (NI ACT) Digital Court-02 Date: 2025.03.04 (South)/Saket Courts, New Delhi 18:44:42 +0100 CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR 2017, Rs. 100000/- on 11th of April 2018 and so on. The account statements only depict ₹ 50,000 to ₹1,00,000 as withdrawal amount in a year whereas the alleged claim of advancement of loan by complainant is much higher than that. Now, complainant during cross-examination dated 14.08.2023 has deposed as follows:
"I am earning monthly ₹ 60,000/- (vol. loan was advanced to the accused after selling my jewelry and after withdrawal from my bank account), my household expenses of per month are Rs.60,000/-. It is correct that fact of selling my jewelry and withdrawal is not mentioned in my complaint, evidence affidavit and legal demand notice......................... I have business transaction with accused since 2015. The cheques in question were given to me by the accused during Navratra in the month of October 2021 against the aforesaid transactions."
Complainant has categorically admitted that she is earning Rs. 60,000/- per month and her expenditure is also ₹ 60,000/-per month. Complainant has mentioned in his complaint that she is known to accused since last 9 years that is around since 2014 to 15. It is quite astonishing that someone will advance money such a huge amount of money to somebody without any paperwork. It is also quite unbelievable that a person will keep advancing loan continuously to someone every year without receiving the previous paid due amount. It is also admitted fact POOJA KUMARI Page 23 of 30 Digitally signed by POOJA (POOJA KUMARI) KUMARI Date:
JMFC (NI ACT) Digital Court-02 2025.03.04 18:44:44 +0100 (South)/Saket Courts, New Delhi CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR that complainant and accused are known to each other since around 2014 to 15 only, now a reasonable doubt appears in mind is that in such short span of time, complainant had so much trust that she advanced this huge amount without any paperwork. Complainant has also not mentioned the reason for which she has advanced loan to accused sans paperwork. It is also hard to believe that a person will sell out his/her jewelry to advance loan without knowing the reason of loan and that is also not once but multiple times. During cross-examination dated 03.02.2024, the complainant had an opportunity explain the purpose for alleged loan extended to accused, but she simply replied that it is matter of record. It is also quite unusual that a person will issue cheques of three different banks, after so many years of loan i.e., also with intention to get it dishonor.
In the present case neither any security was taken nor any paperwork had been done by the lender, therefore it is hard to believe that a borrower will issue the cheques, if that person had no intention to pay back the loan. Now, the WhatsApp audio clips cannot be relied upon for the reason that the certificate u/s 65 B of evidence act is not as per the law. The same does not bears the description of computer from where it was downloaded, serial number of computer, the mobile number of parties, the hash-value of the audio etc. as Page 24 of 30 Digitally signed by (POOJA KUMARI) POOJA POOJA KUMARI JMFC (NI ACT) Digital Court-02 KUMARI Date:
(South)/Saket Courts, New Delhi 2025.03.04 18:44:47 +0100 CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR mandated by Section 65B (2) & (4) of Indian Evidence Act.
(support is drawn from the judgment of Hon'ble Supreme Court in "Arjun Panditrao Khotkar vs Kailash Kushanrao GorantyalAIR {2020 SUPREME COURT 4908}"). It is also seen that in pen drive, the audio clips are of one person only whereas the transcript contains the conversation of two persons. Sans the certificate u/s 65 B of evidence act as per the mandate of law and denial of accused, the WhatsApp audio clip cannot be read into evidence.
Further, the whatsApp chats nowhere mention about the alleged loan transaction between complainant and accused. This court has gone through whole chats and have observed at page 42 of said whatsApp chats that it mentions only 33,500/- as balance. It is also observed that at page no. 70 of said whatsApp chat there are some cheque related conversations in January 2020, however the complainant has deposed in her cross-examination dated 14.08.2023 that she received the cheques in question in the month of October 2021. Thus, whatsApp chats have not revealed any material thing to establish the case complainant.
Now, to rebut the presumption and to substantiate plea of defence, accused has appeared in witness box and deposed that she has not taken any loan from the complainant and neither Page 25 of 30 POOJA (POOJA KUMARI) KUMARI JMFC (NI ACT) Digital Court-02 Digitally signed by POOJA KUMARI (South)/Saket Courts, New Delhi Date: 2025.03.04 18:44:50 +0100 CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR handed over the cheques in question to complainant. Accused brought on record agreement for sale dated 23rd of June 2018 i.e., Ex. DW-1/1 (OSR) and exhibited two pages of register wherein transaction between complainant and accused was recorded i.e., Ex. DW-1/2 (OSR). It is interesting to observe that the register bears the receiving of complainant wherein she has received payment from accused and same was not disputed by the complainant by putting question regarding the receiving, however there is no documentary proof to prove the fact of advancement of loan that is also multiple times. This fact further creates doubt in the mind that accused is taking receiving for the payments of ₹33,700/- on her register, on the other hand complainant has not taken any receiving from the accused for such amount of alleged loan. Further, accused has deposed that these whatsApp chats and payment regarding conversations are for business transaction between them and denied that alleged loan.
Accused has also examined bank witness DW-2 to show the payment to M/s Gaursons Hi-tech Infrastructures Private Limited was done through cheques and said witness brought on record account statement of accused and images of cheques which were presented for the payment to M/s Gaursons Hi-tech Infrastructures Private Limited i.e., Ex. DW-2/B. POOJA KUMARI Page 26 of 30 Digitally signed by POOJA (POOJA KUMARI) KUMARI Date:
JMFC (NI ACT) Digital Court-02 2025.03.04 18:44:52 +0100 (South)/Saket Courts, New Delhi CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR Therefore, considering the overall facts in entirety, court is of view that accused has successfully casted serious doubt in the case of complainant and thereby successfully rebutted the presumption lying against the cheque in question.
The Hon'ble Supreme Court in a ruling titled as "Hiten P.Dalal Vs. Bratindranath Banerjee (2001) 6 SCC 16", has held as under :-
Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact."
Hon'ble Apex court in another case titled as Krishna Janardhan Bhatt Vs. Dattatraya G.Hegde (2008) 4 SCC 54 has observed;
"Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is 'preponderance of probabilities'. Inference of POOJA KUMARI Page 27 of 30 Digitally signed (POOJA KUMARI) by POOJA KUMARI JMFC (NI ACT) Digital Court-02 Date: 2025.03.04 18:44:55 +0100 (South)/Saket Courts, New Delhi CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies."
Succinctly, accused has raised questions regarding the capacity of complainant to advance such a huge amount to her, complainant has failed to bring on record reliable material on record for alleged factum of advancement of loan to accused, accused has duly proved the access of complainant to her shop and accused has duly explained every question put to her regarding the payments to M/s Gaursons Hi-tech Infrastructures Private Limited in her cross-examination and why the cheques in question were lying in her shop. Resultantly, these cumulative facts completely shaken the credibility of the case set by the complainant from the root.
In light of these discussions and principles laid down in above- mentioned rulings, accused has positively rebutted the presumption lying against her for the cheques in question.
27. In view of the foregoing discussion, this court has no hesitation to hold that the liability of the accused for the cheques in question is not established. Hence, this court has arrived at a conclusion that the accused has successfully rebutted the mandatory presumption resting against her. Complainant on POOJA KUMARI Page 28 of 30 Digitally signed by (POOJA KUMARI) POOJA KUMARI Date: 2025.03.04 JMFC (NI ACT) Digital Court-02 18:44:57 +0100 (South)/Saket Courts, New Delhi CC NI ACT NO.: 844/2022 CC NI ACT NO.: 874/2022 CC NI ACT NO.: 881/2022 SAVITA GUPTA Vs. ARTI KAKKAR the other hand has failed to prove her case beyond reasonable doubt qua the existence of liability of the accused cumulatively for all cheques.
28. It is imperative to understand that in order to pronounce a conviction in a criminal case, the accused 'must be' guilty and not merely 'may be' guilty. For an accused to be guilty, guilt should not be based on mere surmises and conjectures but it should be based on cogent evidence. In the present case, the accused has clearly presented a defence that is more probable than the complainant's case, on the other hand, complainant has failed to prove the alleged loans which she claims to have advanced to accused.
Since, the complainant has failed to prove her case beyond reasonable doubt qua the liability of the accused on the date of the presentation of the cheques in question being equal to the total amount of cheques, this court has arrived at the conclusion that the complainant's case does not stand on its own legs.
29. The basic ingredient which is pivotal to attract liability under Section 138 NI Act has not been proved by the complainant, accordingly, no offence of dishonor of the cheque in question under the said Section is made out.
POOJA
KUMARI
Page 29 of 30 Digitally signed
(POOJA KUMARI) by POOJA
KUMARI
JMFC (NI ACT) Digital Court-02 Date: 2025.03.04
18:45:00 +0100
(South)/Saket Courts, New Delhi
CC NI ACT NO.: 844/2022
CC NI ACT NO.: 874/2022
CC NI ACT NO.: 881/2022
SAVITA GUPTA Vs. ARTI KAKKAR
FINAL ORDER
30. In the light of discussions hereinabove, this court finds accused Arti Kakkar not guilty of the offence under Section 138 Negotiable Instruments Act, 1881 and therefore acquits her accordingly.
31. As per section 437A of the Cr.P.C the accused person is directed to furnish fresh personal bond of Rs 10,000/- and one surety of the like amount within one week from today. File be consigned to Record Room as per rule.
This judgment contains 30 pages and each page has been signed by the Presiding Officer.
Digitally signed by POOJA POOJA KUMARI
Announced in open KUMARI Date:
2025.03.04
18:45:04 +0100
Court on 04.03.2025
(POOJA KUMARI)
JMFC (NI ACT), DIGITAL COURT-02,
SOUTH DISTRICT, SAKET COURTS, DELHI 04.03.2025 Page 30 of 30 Digitally signed by (POOJA KUMARI) POOJA JMFC (NI ACT) Digital Court-02 POOJA KUMARI KUMARI Date:
(South)/Saket Courts, New Delhi 2025.03.04 18:45:06 +0100