Delhi District Court
Ct No.23946/2019 Jimli Dev Nath vs . Radha Dass @ Anuradha Dass Page No. 2 Of ... on 11 July, 2023
IN THE COURT OF
METROPOLITAN MAGISTRATE (NI ACT) - 08
SOUTH WEST DISTRICT, DWARKA COURTS, DELHI
Presided by : Sh. Apoorv Bhardwaj
In case of:-
JIMLI DEV NATH ... Complainant
VERSUS
RADHA DASS @ ANURADHA DASS ... Accused
JUDGMENT
a) Sl no. of the case : 23946/2019 b) CNR of the case : DLSW02-0334652019 c) Date of institution 03.07.2019
d) Name, parentage and address Smt. Jimli Dev Nath of the complainant : W/o Sh. Viman Dev Nath R/o RZ-94/12, Gali No.7, Madan Puri, New Delhi-110046
e) Name, parentage and address Smt Radha Dass @ Anuradha Dass of the accused persons: W/o Sh. Sanjay Dass R/o RZ-322/323, Gali No.8 Madanpuri, West Sagarpur, New Delhi-110046
f) Offence complained of : 138 NI Act
g) Total cheque amount : Rs.2,45,000/-
h) Plea of the accused : Pleaded not guilty i) Arguments heard on : 22.06.2023 j) Final order : Acquitted k) Date of Judgment : 11.07.2023
BRIEF STATEMENT OF FACTS FOR THE DECISION
1. Vide this judgment, I shall decide the present complaint filed under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') by the complainant against the accused.
Factual Matrix
2. The case of the complainant in a nutshell is that in the first week of June 2016, the accused had approached her for a friendly loan of Rs 6,00,000/- on account of their close friendly relations. The accused needed this amount since she was working on some stage programs and singing/dancing competitions with one Sh. Ranjit Kumar Biswas. Thereafter, the complainant had advanced a loan of Rs 3,50,000/- to the accused for a period of one and a half year on 16.06.2016 and a loan of Rs 2,10,000/- on 30.11.2017. Total loan advanced by the complainant to the accused was Rs 5,60,000/-
3. Thereafter, the accused repaid some amount to the complainant in the following manner:-
Amount (in Rs) Date Mode
65,000/- 31.03.2018 Cheque of husband
of accused Sh
2,40,000/- 05.05.2018 Sanjay Das
Total : 3,05,000/-
4. Thereafter, upon persistent demands made by the complainant, in October, 2018, the accused issued three post dated cheques for payment of the remaining amount i.e. cheque bearing no. 192866 Ct No.23946/2019 Jimli Dev Nath vs. Radha Dass @ Anuradha Dass page no. 2 of 19 dated 16.05.2019 for a sum of Rs 99,000/-, cheque bearing no. 192867 dated 20.05.2019 for a sum of Rs 99,000/- and cheque bearing no. 192868 dated 20.05.2019 for a sum of Rs 47,000/- all drawn on Bank of Maharashtra. It is pertinent to observe here that total cheque amount of all the three cheques combined is 2,45,000/-. Thereafter, the complainant presented the aforementioned cheques to her bank i.e. Canara Bank, Janak puri Branch, New Delhi which were returned unpaid for the reason "Funds Insufficient" vide returning memo dated 21.05.2019. Thereafter, despite issuance of legal demand notice to the accused, the accused failed to pay the total cheque amount within 15 days thereof and hence the present case.
5. Upon a prima facie consideration of pre-summoning evidence, cognizance of offence under section 138 NI Act was taken and the accused was summoned. Thereafter, separate notice explaining the accusation was put to the accused under section 251 of The Code of Criminal Procedure, 1973 (hereinafter referred to as 'CrPC') to which she pleaded not guilty and claimed trial. At this stage the following aspects were admitted/denied by her:-
5.1. Signatures on the cheques in question - Admitted. 5.2. Filling up of material particulars on the cheques in question :- Denied 5.3. Receiving the legal demand notice - Admitted. 5.4. Whether the legal demand notice is sent on the correct address : Admitted 5.5. Genuineness of postal receipt and returning memo :-
Admitted In her defence she stated that :-
Ct No.23946/2019 Jimli Dev Nath vs. Radha Dass @ Anuradha Dass page no. 3 of 19 "I had only taken a loan of Rs 2.5 lakhs in November, 2017 from the complainant. I had already repaid Rs 3,05,000/- to the complainant. I am not liable towards the cheques in question. The complainant has misued my blank signed security cheques given at the time of availing loan of Rs 2.5 lakhs"
Thereafter, cross-examination of the complainant's witnesses under section 145(2) NI Act was permitted.
6. The complainant was examined as CW-1 and she relied on pre-summoning evidence as post summoning evidence i.e on evidence by way of affidavit Ex CW1/A and on the following documents i.e. 6.1. Ex CW1/1 to Ex CW1/3 (the cheques in question) 6.2. Ex CW1/4 (the returning memo) 6.3. Ex CW1/5 (legal notice) 6.4. Ex CW1/6 (postal receipt) 6.5. Ex CW1/7 (proof of service) 6.6. Ex CW1/8 (Certificate u/s 65-B Evidence Act)
7. Thereafter, she was cross-examined. During her cross examination she stated that 7.1. She is GM (Sales) in a private company.
7.2. Her in-laws have known the accused for the past 35 years and on this basis she had also been acquainted with the accused.
7.3. She had not mentioned the specific date-time, place and mode when the accused approached her for a friendly loan in the first week of June 2016.
7.4. No receipt/acknowledgement/agreement was executed at the time of advancing the alleged loan Ct No.23946/2019 Jimli Dev Nath vs. Radha Dass @ Anuradha Dass page no. 4 of 19 either on 16.06.2016 or on 30.11.2017. Voluntarily, she stated that she trusted the accused. She had asked the accused to give her a receipt or a stamp but the accused never executed any document. The accused had also informed her that she is keeping a written record of all the loan advanced by her in a diary.
7.5. The alleged loan amounts of Rs.3,50,000/- and Rs.2,10,000/- was arranged by her after withdrawing from the bank and also from the amount already available with her in cash.
7.6. The alleged loan amounts were advanced at her residence on both occasions i.e. 16.06.2016 and 30.11.2017. On 16.06.2016 the loan was advanced in presence of her husband. On 30.11.2017 no one else was present apart from her and the accused when the loan was advanced.
7.7. She also placed on record certain other documents during her cross-examination.
7.7.1. Her bank account statements pertaining to year 2015-2016, 2016-2017 and 2017-2018. as Ex. CW1/D-1 (Canara Bank) and Ex.CW1/D-7 (colly). (HDFC Bank) 7.7.2. ITR for A.Y. 2018-2019 as Ex. CW1/D-2 (OSR) and her ITR for A.Y. 2019-2020 as Ex.
CW1/D-3 (OSR).
7.7.3. Computation for ITR filed for the year 2019-2020 as Ex. CW1/D-4 (colly 2 pages).
7.7.4. Balance sheet/ledger account is now Ex.
CW1/D-5 (colly 5 pages) 7.7.5. Some other documents pertaining to Mark CW1/D-6 (colly 6 pages).
Ct No.23946/2019 Jimli Dev Nath vs. Radha Dass @ Anuradha Dass page no. 5 of 19 7.8. The loan advanced to the accused is not mentioned in the ITR but it was duly reflected in ledger maintained by her.
7.9. She admitted that the alleged loan advanced to the accused is not mentioned anywhere in computation sheet Ex.CW1/D-4.
7.10. Upon being shown page no.3 of Ex.CW1/D-5) she stated that she has prepared it specially for the accused since she was sensing that she is getting trapped.
7.11. Internal page 3 of Ex.CW1/D-5 was prepared by accountant. She could not tell any specific date when this document was prepared but it was prepared some time in the year 2018-2019 when she was sensing that she was getting trapped and she wanted to prepare some documentary proof in her favour.
7.12. She admitted that there is no withdrawal of Rs.3,50,000/- around the month of June 2016 in any of her bank accounts and that there is no withdrawal of Rs.2 lakhs anywhere in any of her bank accounts around the month of November, 2017.
7.13. Ld Counsel for the accused asked her that what was the gap between the first payment of Rs.3,50,000/- and the second payment of Rs.2,10,000/-. He also apprised her that he was asking this question since she kept on giving money to the accused even though she did not repay any amount to her. To this she responded that she did so since there was not a huge time gap between the payments of Rs.3,50,000/- and Rs.2,10,000/- and these amounts were advanced in a gap of around five months.
Ct No.23946/2019 Jimli Dev Nath vs. Radha Dass @ Anuradha Dass page no. 6 of 19 7.14. Upon being shown her affidavit, in which she had stated that an amount of Rs.3,50,000 was given on 16.06.2016 and the amount of Rs.2,10,000/- was given on 30.11.2017 i.e. in a gap of more than 17 months; she stated that she gave Rs.2,10,000/- to the accused because she used to plead for money and make several phone calls to her every day. She had an emotional attachment with the accused.
7.15. She admitted that she had received a sum of Rs.305000/- from the husband of the accused on behalf of the accused.
7.16. She did not insist much on the remaining amount of Rs.10,000/- as she was of the view that she should first realize whatever amount the accused is paying.
7.17. She denied various suggestions given by Ld. Counsel for the accused.
8. In the statement of the accused under section 313 CrPC, she elaborated on her defence disclosed at the stage of framing of notice. She admitted friendly relations with the complainant. She stated that she had approached the complainant for a loan of Rs 6 lakhs in June 2016 but the complainant had provided her only Rs 2,50,000/-. She had repaid Rs 3,05,000/- to the complainant. The complainant had misused blank signed security cheques given at the time of availing the abovesaid loan. She did not lead defence evidence.
9. During the course of final arguments Ld counsel for the complainant Sh S K Tomar submitted that the complainant has duly proved her case by placing on record the entire documentary evidence. He also submitted that the accused has failed to rebut Ct No.23946/2019 Jimli Dev Nath vs. Radha Dass @ Anuradha Dass page no. 7 of 19 the presumption against her and has admitted all of the ingredients of section 138 NI Act. It was submitted that the accused has failed to explain that why did she return Rs 3,05,000/- to the complainant when she had taken a loan of only Rs 2,50,000/- from her. He also submitted that the version of the accused cannot be believed because she did not issue any 'stop payment' instructions to her banker
10. Per contra, Ld Counsel for the accused Sh Pradeep Mishra submitted that the accused has sufficiently rebutted the presumption against her and deserves acquittal. The crux of his arguments are as follows :-
10.1. It is highly imporbable that a person would advancce a fresh loan when the previous loan was not paid. 10.2. The complainant failed to bring her relevant ITRs on record.
10.3. The complainant failed to explain that why she accepted cheques worth Rs 2,45,000/- only when she had a sum of Rs 2,55,000/- was allegedly pending to be realised from her.
10.4. The complainant has created false and fabricated evidence in her favour like balance sheets and ledger statement.
10.5. The complainant has failed to substantiate advancing of the alleged loan from her bank account statement.
Legal Position:-
11. Before proceeding further to reflect upon the defence and evaluation of evidence, the foremost check point is whether the Ct No.23946/2019 Jimli Dev Nath vs. Radha Dass @ Anuradha Dass page no. 8 of 19 facts averred by the complainant fulfil the basic statutory requirement for constituting an offence under section 138 NI Act. To establish the offence under Section 138 of the NI Act against the accused, the complainant must prove the following:-
11.1. The accused must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
11.2. The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
11.3. That cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier;
11.4. That cheque is returned by the bank unpaid, either because of 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;
11.5. 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 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
11.6. The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder Ct No.23946/2019 Jimli Dev Nath vs. Radha Dass @ Anuradha Dass page no. 9 of 19 in due course of the cheque within 15 days of the receipt of the said notice.
Being cumulative it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under section 138 NI Act.
12. It is apt to discuss that a negotiable instrument including a cheque carries following presumptions in terms of Section 118 (a) and Section 139 of the NI Act.
Section 118 of the NI Act provides :
"Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made:
(a) of consideration :- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows:
"Presumption in favour of holder:- it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability"
Thus, the combined effect of Section 118(a) and Section 139 of NI Act raises a presumption in favour of the holder of the cheque that he has received the same for discharge, in whole or in part of any debt or other liability.
Whether presumption under section 118 (a) and 139 NI Act can be drawn against the accused Ct No.23946/2019 Jimli Dev Nath vs. Radha Dass @ Anuradha Dass page no. 10 of 19
13. Evaluating the facts of the present case in the light of the above provision this court deems it fit to first consider as to whether it is prima facie proved that cheque in question was issued by the accused towards a legal liability in favour of the complainant from the account maintained by him, so as to constitute an offence under section 138 NI Act.
14. To carve out a prima facie case the complainant has filed on record original cheques as Ex. CW1/1, Ex CW1/2 and Ex CW1/3. The said cheques were presented to the bank within a period of three months from the date on which they were drawn and were returned dishonoured for the reasons "Funds Insufficient". The returning memos dated 21.05.2019 bearing the fact of dishonour of cheque in question has been exhibited by the complainant as Ex. CW1/4(colly). The complainant then sent a legal notice, Ex CW1/5 dated 06.06.2019 on 07.06.2019 i.e. within the period of statutory requirement of 30 days from the date of receipt of information of dishonour. The original postal receipt dated 07.06.2019 has been placed on record as Ex CW1/6 along with a tracking report Ex CW1/7 supported by a certificate under section 65 B Evidence Act.
15. In the present case the accused has admitted her signatures on the cheques in question. She has also admitted issuing the cheques to the complainant albeit as a security. She has denied receiving the legal demand notice but has admitted that the same has been sent on the correct address. Therefore, since the legal demand notice was properly addressed and posted, it is presumed to have been delivered under section 114 Indian Evidence Act, 1872 Ct No.23946/2019 Jimli Dev Nath vs. Radha Dass @ Anuradha Dass page no. 11 of 19 (hereinafter, "Evidence Act"). Moreover, in light of the decision of the Hon'ble Supreme Court of India in C C Alavi Haji v Palapetty Muhammad (2007) 6 SCC 555, the accused not having paid the amount of cheque in question within 15 days of service of summons to him, she cannot be allowed to take the plea that legal demand notice was never sent to her.
16. These facts suffice in raising the presumption against the accused and in favour of the complainant.
17. When the presumption is raised in favour of the complainant, the burden is shifted on the accused to disprove the case of the complainant by rebutting the presumption. The accused can displace this presumption on the scale of preponderance of probabilities. Lack of consideration or a legally enforceable debt need not be proved beyond a reasonable doubt as is the general rule in criminal cases. The accused has to make out a fairly plausible defence which is acceptable to the court. This the accused can do either by leading his own evidence or by raising doubt /demolishing the material or evidence brought on record by the complainant. Reliance can be placed on Basalingappa v Mudibasappa (2019) 5 SCC 418.
18. Further, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon Ct No.23946/2019 Jimli Dev Nath vs. Radha Dass @ Anuradha Dass page no. 12 of 19 consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. The accused may also rely upon circumstantial evidence to shift the burden again on the complainant. [Refer: Bharat Barrel and Drum Manufacturing Company v Amin Chand Pyarelal 1999 SCCOnline SC 188 and Kumar Exports v Sharma Carpets, 2008 SCC OnLine SC 1885].
19. Also, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard or proof. Presumption of innocence as a human right needs to be delicately balanced with doctrine of reverse burden contained in section 139 of NI Act. [Reference can be made to Rangappa v Sri Mohan 2010 SCC OnLine SC 583 and Krishna Janardhan Bhat v Dattatreya G Hegde 2008 (4) SCC 54].
20. Having referred to the above judicial pronouncements, I shall now analyse the record in their light.
Whether the accused has been able to rebut the presumption against her.
21. Main defence of the accused is that no loan of Rs 5,60,000/- was ever advanced to her by the complainant. Complainant has stated during her cross-examination that she arranged the loan amount Ct No.23946/2019 Jimli Dev Nath vs. Radha Dass @ Anuradha Dass page no. 13 of 19 partly by withdrawing from bank and partly by way of cash which was already available with her at her home. The complainant has also produced her bank statements to corroborate this testimony. I have carefully gone through the bank statements produced by the complainant and upon juxtaposing the same with the her testimony, I observe the following:-
21.1. As per the complainant's affidavit, accused had approached her for loan in the month of June 2016 and she had advanced a loan of Rs 3,50,000/- to the accused on 16.06.2016 and a loan of Rs 2,10,000/-
on 30.11.2017.
21.2. However, no money was withdrawn by the complainant (either from ATM or using self cheque) from her HDFC bank account between 01.06.2016 to 16.06.2016 and the total money withdrawn by her from her account in Canara Bank was Rs 14,500/- in this period.
21.3. Moreover, no amount has been withdrawn by the complainant (either from ATM or using self cheque) from either of her Bank accounts in the months of November, 2017. Even in the month of October, 2017 she did not withdraw a single penny from either of her bank accounts.
22. The complainant also placed on record her ITRs for AY 2018-19 and AY 2019-20. However, she admitted that the loan advanced to the accused is not mentioned in the ITR or the computation of taxable income annexed with it. She also relied on some balance Ct No.23946/2019 Jimli Dev Nath vs. Radha Dass @ Anuradha Dass page no. 14 of 19 sheets prepared by her accountant. (internal page 3-5 of Ex CW1/D5 (colly) and Mark CW1/D6). I do not find the same to be a reliable piece of corroborative evidence for the following reasons 22.1. These are entirely self-serving private documents prepared by the complainant.
22.2. During her cross-examination with respect to these documents the complainant stated that:-
(At this stage, witness is shown page no.3 of Ex.CW1/D-5).
Q: Have you prepared such ledger account of other people also?
A: No. I have prepared it specially for the accused since I was sensing that I am getting trapped.
*** "I cannot tell any specific date when this document was prepared but it was prepared some time in the year 2018-2019 when I was sensing that I was getting trapped and I wanted to prepare some documentary proof in my favour. It is correct that there is no signature or stamp of any accountant anywhere on Ex.CW1/D-5 or Mark CW1/D-6."
This testimony leaves little room to doubt that these Ct No.23946/2019 Jimli Dev Nath vs. Radha Dass @ Anuradha Dass page no. 15 of 19 documents have been prepared after much afterthought and innocuosly or otherwise, the complainant has tried to manufacture evidence in support of her case.
23. There are other discrepancies in the version of the complainant as well. For instance, she could not remember during her cross-examination the time gap between the initial loan and the subsequent loan. I find this dicrepancy to be quite crucial for the following reasons:-
23.1. The complainant is not a lay person. She is a working as GM (Sales) in a private company.
23.2. The complainant has categorically stated the dates of advancing the loans in her affidavit and she even went through the added inconvenience to mention the loans along with the dates in the balance sheets prepared by her.
23.3. Unable to remember the time gap between the transactions was not a slip of tongue or the result of faded memory, rather, it was a well reasoned statement. The complainant had stated that she gave money to the accused despite the previous loan being unpaid because there was a time gap of only five months. Thereafter, the complainant had to be shown her affidavit, according to which the gap between the two transactions was around 17 months. Now the complainant changed her response and stated that she gave money to the accused because she had been Ct No.23946/2019 Jimli Dev Nath vs. Radha Dass @ Anuradha Dass page no. 16 of 19 emotionally pressurized.
23.4. I do not find this explanation to be reliable since initially when the complainant thought that the loan has been advanced in a time gap of five months she did not mention anything about the emotional pressure. Therefore, this explanation appears to be a result of an afterthought and an attempt to cover up her faux pas.
23.5. Secondly, I do not find this explanation to be reasonable as well. The loan was not taken by the accused for any medical emergency or any other urgency of personal nature. Rather, as per the complainant, the purpose of advancing the alleged loan was that the accused was working on some big stage programs and singing and dancing competitions organised by one Sh Ranjit Kumar Biswas. As per the complainant's own testimony the accused was merely a receptionist working for Sh. Biswas.
Therefore, the accused does not seem to be the direct beneficiary of this loan. Hence, I am unable to accept the explanation given by the complainant that the accused emotionally pressurised her into giving the loan or, that she reeled under any such pressure.
23.6. Even otherwise, no prudent person would advance hefty sum of money to a person who has not repaid their previous loan and that too without taking any Ct No.23946/2019 Jimli Dev Nath vs. Radha Dass @ Anuradha Dass page no. 17 of 19 written acknowledgment/receipt.1 Reliance can be placed on a judgment of the Hon'ble Kerala High Court in case titled V.P Zacharia v State of Kerala 2021 SCC OnLine Ker 3730 in which it has been held that when the first loan is unpaid a subsequent loan transaction does become improbable.
24. For the above mentioned reasons, I am of the considered view that the accused has been able to sufficiently rebut the presumption against her as there are several inconsistencies and lacunas in the case of the complainant.
25. I have also considered the arguments of Ld Counsel for the accused that the accused did not issue 'stop payment' instructions to her banker or that she failed to explain why an amount of Rs 3,05,000/- was paid to the complainant by her. However, it is trite, that the case of the complainant needs to stand on its own legs and any weakness in the defence of the accused cannot by itself be a reason for conviction. The accused merely has to rebut the presumption on a scale of preponderance of probabilities. This the accused can do either by leading her own evidence or by raising doubt /demolishing the material or evidence brought on record by the complainant. In the considered view of this court, the accused has been able to achieve the latter.
26. In view of the evidence adduced, documents put forth and arguments advanced by the parties and further in view of the above discussion, the court is of the considered view that the accused Ms Radha Dass @ Anuradha Dass is not guilty of 1 It is worth recapitulating that the initial loan of Rs 3,50,000/- was given on 16.06.2016 for a period of one and a half year.
Ct No.23946/2019 Jimli Dev Nath vs. Radha Dass @ Anuradha Dass page no. 18 of 19 offence under Section 138 of Negotiable Instruments Act, 1881 and accordingly, she is hereby acquitted under Section 138 of Negotiable Instruments Act, 1881.
Announced in open court on 11.07.2023 Digitally signed
by APOORV
BHARDWAJ
Judgment consists of 19 pages. APOORV
Date:
BHARDWAJ 2023.07.11
15:52:44
+0530
APOORV BHARDWAJ
MM-08 (NI Act)
SOUTH WEST:DWARKA COURTS.
N.D/11.07.2023
Ct No.23946/2019 Jimli Dev Nath vs. Radha Dass @ Anuradha Dass page no. 19 of 19