Delhi District Court
Smt. Raminder Kaur Anand vs Narinder Singh on 31 July, 2024
CC NI ACT 1873/2021 Raminder Kaur VS Narinder Singh Date of Pronouncement 31.07.2024
IN THE COURT OF MS. SHRUTI SHARMA-II JUDICIAL
MAGISTRATE FIRST CLASS (NI ACT) DIGITAL COURT-01, NORTH
WEST, ROHINI COURTS, NEW DELHI
CC NI ACT/1873/2021
Smt. Raminder Kaur Anand
W/O Sh. Surjit Singh Anand
R/O 93, Kohat Enclave,
Pitampura, New Delhi-110034
......Complainant
Versus
Sh. Narinder Singh
S/O Sh. Pritam Singh
R/O H.No. 8/32-A, Block-8
Near Sanatan Dharam Mandir,
Moti Nagar, Ramesh Nagar,
New Delhi-110015
.....Accused
P.S. Subhash Place
Page no. 1/18
CC NI ACT 1873/2021 Raminder Kaur VS Narinder Singh Date of Pronouncement 31.07.2024
DLNW020173372020
Complaint case no CC NI ACT/1873/2021
CNR No. DLNW020173372020
Title Raminder Kaur Anand vs. Narinder
Singh
Name of complainant Smt. Raminder Kaur Anand
Name of accused Sh. Narinder Singh
Date of institution of complainant 15.12.2020
Date of final arguments 29.062024
Date of pronouncement 31.07.2024
Offence complained of Under section 138 NI Act
Offence charged with Under section 138 NI Act
Plea of accused Pleaded not guilty and claimed trial
Final Order Acquittal
Page no. 2/18
Digitally signed by
SHRUTI SHRUTI SHARMA
SHARMA Date: 2024.07.31
21:23:07 +0530
CC NI ACT 1873/2021 Raminder Kaur VS Narinder Singh Date of Pronouncement 31.07.2024
JUDGMENT
Vide this Judgement I shall dispose of the present complaint under Section 138 Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act) filed by the complainant against the accused on account of dishonor of Cheque bearing No. 000122 dated 09.10.2020 for a sum of Rs. 1,60,000/- drawn on Andhra Bank, Subhash Place, New Delhi allegedly issued by the accused in favour of the complainant (hereinafter referred to as the cheque in question). The present complaint was transferred to this Court from the Digital Court-03, North West at the stage of final arguments, which now stands abolished by the Order of the Hon'ble High Court issued vide letter no. 20/DHC/Gaz.IIB/G- 7/2024 dated 15.05.2024.
FACTS AS PER COMPLAINT
1. The present complaint has been filed by Ms. Raminder Kaur Anand against Sh. Narinder Singh for the dishonor of the above said cheque in question. Briefly stated, the case of the complainant is that the accused and the complainant have known each other since long and on account of the long friendly relation the accused had approached the complainant and her husband in the Month of August, 2019 for a financial assistance of Rs. 1,60,000/- as he was in dire need of money to meet his urgent financial requirement. The complainant and her husband being well-wishers of the accused agreed to lend the amount to the accused and after arranging funds from her sources the complainant had lent a sum of Rs. 1,60,000/- to the accused. It is further the case of the complainant that the accused had signed an acknowledgement receipt dated 18.08.2019 as against the said loan. As per the acknowledgement receipt the accused promised to pay back the loan amount within a time span of one year. The said acknowledgement Page no. 3/18 CC NI ACT 1873/2021 Raminder Kaur VS Narinder Singh Date of Pronouncement 31.07.2024 receipt was also witnessed by the husband of the accused Sh. Surjeet Singh. However, the accused had failed to repay the loaned amount within the stipulated time despite repeated requests of the complainant. Later, upon repeated demands of the complainant the accused in discharge of his legal liability of repaying the aforesaid loan amount, handed over the cheque in question in the name of the complainant with the promise that the same would be cleared as and when presented for its encashment by the complainant before its bankers. Upon presentation of the aforesaid cheque in question before the bank, the complainant got to know that the cheque was returned unpaid with the remarks "05- Kindly Contact Drawe/Drawee Bank and please present again" vide returning memo dated 12.10.2020. Thereafter, the complainant sent a legal notice dated 20.10.2020 through speed post and the said notice was delivered to the accused on 31.10.2020 however the accused had failed to pay the cheque amount within the stipulated period of 15 days. Hence, the present complaint under Section 138 of NI Act has been filed.
APPEARANCE OF ACCUSED AND TRIAL
1. The cognizance of the present complaint was taken by Ld. PO of the transferor Court on 28.01.2021 and the accused was summoned. Upon service of summons, accused entered his appearance for the first time and was admitted to bail on 25.03.2021. Notice under Section 251 CrPC was framed upon the accused vide order dated 17.07.2023 to which he had pleaded not guilty and claimed trial, thereby, his plea of defense was recorded. In response to notice u/s 251, CrPC, the accused had submitted that he had taken a loan of Rs. 50,000/- from the husband of the complainant and had returned the same along with interest. He denied having any liability towards the complainant. He had also stated that the Page no. 4/18 CC NI ACT 1873/2021 Raminder Kaur VS Narinder Singh Date of Pronouncement 31.07.2024 complainant had taken his signatures on a blank paper and he had not signed the acknowledgement receipt dated 18.08.2019 in the favor of the complainant. The accused however had admitted his signature on the cheque in question but denied filling the particulars on it. The accused had also accepted the fact of receipt of legal demand notice from the complainant.
2. Thereafter, the accused despite being given opportunities, had failed to move an application seeking permission of the Court to cross examine the complainant under Section 145(2) NI Act therefore the right of the accused to cross examine the complainant was closed by the court vide order dated 01.08.2023. Thereafter vide Order dated 14.09.2023 complainant as CW1 was examined in chief and discharged and vide a separate statement of complainant, finally the CE was closed.
3. After the closing of complainant evidence, matter was fixed for recording of statement of accused under section 313 CrPC and the same was recorded on 14.09.2023, wherein the incriminating evidences were put to him. The accused in his statement u/s 313 CrPC had reiterated his stance which he took in his Notice framed under Section 251 CrPC and once again submitted that he had taken a loan of Rs. 50,000/- from the husband of the complainant and have repaid Rs. 80,000/- back to him. He further denied signing the acknowledgement receipt dated 18.08.2019 and stated that the cheque in question was given as a blank cheque. Hence, in his statement under section 313 CrPC the accused had denied the allegations of the complainant with respect to the cheque in question. Thereafter vide order dated 11.12.2023, the right of the accused to lead DE was closed as he had failed to move an appropriate application under Section 315 CrPC/list of witnesses despite giving opportunities. Thereafter final arguments in Page no. 5/18 CC NI ACT 1873/2021 Raminder Kaur VS Narinder Singh Date of Pronouncement 31.07.2024 the matter were heard from both the parties in length on 22.06.2024 by the undersigned and the matter was reserved for judgement on 31.07.2024.
EVIDENCE ON BEHALF OF THE COMPLAINANT
4. To support its case, the complainant Smt. Raminder Kaur Anand had stepped into witness box and had examined herself as CW-1. For this she had tendered her pre-summoning evidence by way of affidavit and had adopted the same at the stage of post summoning complainant evidence. CW-1 in her complainant evidence had relied on the following documents:-
(i) Ex. CW1/A : Affidavit
(ii) Ex.CW1/1 : Receipt dated 18.08.2019.
(iii) Ex.CW1/2 : Original Cheque in question
(iv) Ex.CW1/3 : Returning memo
(v) Ex.CW1/4 : Courier receipt
(vi) Ex.CW1/ 5 : Legal Notice
(vi) Ex.CW1/6 : Postal receipt
(vii) Ex.CW1/7 : Proof of delivery/Tracking report.
Photocopy of the Aadhar card of the accused as Mark A Page no. 6/18 CC NI ACT 1873/2021 Raminder Kaur VS Narinder Singh Date of Pronouncement 31.07.2024 EVIDENCE ON BEHALF OF THE ACCUSED
5. No evidence was led on behalf of the accused as his right to lead defense evidence was already closed vide order dated 11.12.2023.
FINAL ARGUMENTS
6. Final arguments were heard at length on 22.06.2024. Ld. counsel for complainant had vehemently argued that the accused has failed to rebut the statutory presumptions envisaged under Section 118 read with Section 139 of the NI Act and therefore, he is liable to be convicted for the commission of offence under section 138 of the Negotiable Instruments Act, 1881. Per contra, Ld. counsel for accused has vehemently argued that the complainant is a unlicensed money lender and the cheque in question was given as blank cheque for the purpose of security for some other case which was filed by complainant and her husband against the accused.
DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS
7. For the offences under Section 138 of the NI Act, there are following three ingredients as held by the Hon'ble Supreme court of India in Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54:-
I. That there should be a legally enforceable debt; II. That the cheque is drawn up from the account of bank for discharge in whole or in part of any debt or other liability which pre- supposes a legally enforceable debt; and III. That the cheque so issued had been returned due to insufficiency of fund.Page no. 7/18
CC NI ACT 1873/2021 Raminder Kaur VS Narinder Singh Date of Pronouncement 31.07.2024
8. The proviso appended to Section 138 of the Act provides for compliance of legal requirements before the complaint petition could be acted upon by a Court of Law.
9. Section 139 of the NI Act reads as under:
"139. Presumption in favor 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."
10.It is well-settled law that section 139 of the NI Act merely raises a presumption in favor of the holder of a cheque that the same has been issued for discharge of any debt or other liability. The existence of a legally recoverable debt is not presumed under Section 139 of the Act.
11.The three-Judge Bench of Hon'ble Supreme Court in Rangappa Vs. Sri Mohan, (2010) 11 SCC 441 has held that where the fact of signature on the cheque is acknowledged, a presumption has to be raised that the cheque pertains to a legally enforceable debt or liability, however, this presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defense.
12.Coming to the facts of the present case, it is not in dispute that the original cheque in question was drawn on an account maintained by the accused. The signature on the cheque in question is also not disputed as a specific question was put to the accused at the stage of framing of notice under Section 251 CrPC, wherein the accused had stated that the cheque in question bears his signature. The accused in Page no. 8/18 CC NI ACT 1873/2021 Raminder Kaur VS Narinder Singh Date of Pronouncement 31.07.2024 the notice framed under Section 251 CrPC, had also admitted the receipt of the legal demand notice from the complainant. Therefore, it can be said that the fact of non-payment, as asked for in the statutory notice of demand, within 15 days of its receipt is also not a disputed fact. Therefore, in view of section 139, NI Act and decision of the Hon'ble Supreme Court in Rangappa (supra), the presumption under Section. 139 of the NI Act for legally enforceable debt can be very well raised and the burden now shifts upon the accused to rebut the said presumption by raising probable defense in his favor.
13.It is pertinent to mention here that Section 139 NI Act only raises the presumption on fulfillment of its conditions that the cheque was issued for discharge of in whole or in part any debt or other liability but there is no presumption as to the existence of the debt or liability as such. In Rangappa (supra), it has been held that:
"Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favor of a holder of the cheque that the same has been issued for discharge of any debt or other liability."
14.The Hon'ble Apex Court after analyzing various judicial pronouncements in Basalingappa v. Mudibasappa, AIR 2019 SC 1983 , summarized the principles as follows :-
"(i) Once the execution of cheque is admitted, Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.Page no. 9/18
CC NI ACT 1873/2021 Raminder Kaur VS Narinder Singh Date of Pronouncement 31.07.2024
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defense. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defense. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defense, Section 139 imposes an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to support his defense."
15.Applying the preposition of law as noted above, in facts of the present case, the signature on the cheque in question having been admitted, a presumption shall be raised under Section 139 NI Act that the cheque was issued in discharge of debt or liability. The question now to be examined as to whether any probable defense was raised by the accused or not.
16.Despite giving reasonable opportunities, the accused did not lead any defense evidence in his favor because of which his right to lead defense evidence was closed by the Court on 11.12.2023. Therefore, no evidences were led on behalf of Page no. 10/18 CC NI ACT 1873/2021 Raminder Kaur VS Narinder Singh Date of Pronouncement 31.07.2024 the accused to support his stance that he had raised at the stage of Notice framing under Section 251 CrPC and recording of his statement under Section 313 CrPC.
17. In the present case since no evidence has been produced from the side of the accused, the case of the complainant has to be seen on the basis of evidences produced on its behalf and it has to be seen that whether the complainant is able to prove the existence of legally enforceable debt on the part of the accused or not. It is a settled principal of law that just because the accused has failed to produce evidences in support of his defense, the same does not automatically mean that the case of the complainant stands proved on its own and the same has to be judged on the basis of materials adduced by the complainant in support of its case. Furthermore, the presumption raised under Section 139 NI Act will support the case of the complainant only to the extent that the cheque in question was given in discharge of the legally enforceable debt as explained above in para 10 and the fact whether such legally enforceable debt exists in its favor and against the accused is still a matter of the evidence and needs to be adjudicated on merits as in criminal cases the case of the complainant/prosecution has to be proved beyond reasonable doubt and the complainant/prosecution has to stand on its own legs and no unfair advantage of accused not leading any evidence on his part can be given to the complainant/prosecution unless it is supported by enough evidences to support its case. Therefore, the present case has to be decided on the basis of materials brought on record in support of its case by the complainant.
18.The case of the complainant for a friendly loan rest upon the acknowledgement receipt dated 18.08.2019 produced by it which is exhibited as Ex. CW1/1. It is true that the defense that is taken by the accused that he had not signed the acknowledgement receipt is not proved by him as his right to lead defense Page no. 11/18 CC NI ACT 1873/2021 Raminder Kaur VS Narinder Singh Date of Pronouncement 31.07.2024 evidence was closed and hence the complainant who is the sole witness in the present case was not cross examined by counsel for accused. It would not be out of place to mention that the said receipt is not proved by the complainant as well. No witnesses were called to prove the factum of the execution of the acknowledgement receipt dated 18.08.2019. As per the receipt/acknowledgement there is only one witness to it and that too is the husband of the complainant who pertinently was not mentioned or called as a witness to prove the factum of its execution.
19.Now coming to the cheque in question, the accused in his statement under Section 251 CrPC had denied filling the particulars on the cheque in question however admitted his signatures. Therefore, it becomes essential to carefully peruse the cheque in question which is exhibited as CW1/2. The ink of the pen on the cheque in question, that is used for putting signatures and filling the particulars are two different inks. While the signatures are done with a dark blue pen ink, the particulars on it are filled with a light blue pen ink. The same in a way goes in consonance with the defense taken by the accused at the stage of framing of notice.
20.More importantly the reason for the return of the Cheque in question is "05- Kindly contact Drawer/Drawee Bank and please present again" which is shown in return memo dated 12.10.2020, which stands duly exhibited as CW1/3. Here it is important to note that the reason of return mentions that the complainant is directed to contact Drawer/Drawee Bank and present it again. Nowhere in the complaint it is mentioned that the cheque as per the remarks on the return memo was presented again by the complainant. The complainant had filed its list of witnesses in which the bank officials from the Drawer and Drawee Bank were Page no. 12/18 CC NI ACT 1873/2021 Raminder Kaur VS Narinder Singh Date of Pronouncement 31.07.2024 added as a witness however no bank witness was called upon by the complainant at the stage of evidence to explain or prove the real reason for the return of the cheque in question.
21. Here it becomes important to peruse Section 138 of the NI Act which states as follows:
"138. Dishonour of cheque for insufficiency, etc., of funds in the account.--Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment of a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both.
22. In the case of M/S Laxmi Dyechem vs State Of Gujarat & Ors on 27 November, 2012 the Hon'ble Apex Court held that:
"7. As already noted, the Legislature intends to punish only those who are well aware that they have no amount in the bank and yet issue a cheque in discharge of debt or liability which amounts to Page no. 13/18 CC NI ACT 1873/2021 Raminder Kaur VS Narinder Singh Date of Pronouncement 31.07.2024 cheating and not to punish those who bona fide issues the cheque and in return gets cheated giving rise to disputes emerging from breach of agreement and hence contractual violation."
23. In the case of Sathiya Murthi vs Kesava Narayanan on 24 July, 2019 the Hon'ble Madras High Court had dealt with a situation similar to the present complaint in which the cheque in question was returned with the same remarks. It was held that:
"5.The only ground that has been raised by the learned counsel for the petitioner is that, the cheque has been returned by the bank by requesting the respondent to contact the Drawer - Drawee Bank and present it again. The respondent without complying with the requisite has proceeded to file the complaint for an offence under Section 138 of the Negotiable Instrument Act. It is true that the Hon'ble Supreme Court of India has held that, for whatever reasons a cheque is returned, a complaint can be maintained under Section 138 of the Negotiable Instruments Act and if such a purposeful interpretation is not given to the provision, it will defeat the beneficial legislation which wants to penalize the persons who fail to honour a cheque, after issuing the same.
6. However, in the facts of the present case, the concerned bank has not returned the cheque on the ground of defect. It has been returned by directing the respondent to contact a concerned bank and present it again. In short, this endorsement cannot be held to be dishonour of cheque. In the considered view of this Court, the respondent without complying with the requirements of the bank, ought not to have proceeded to file a complaint under Section 138 Page no. 14/18 CC NI ACT 1873/2021 Raminder Kaur VS Narinder Singh Date of Pronouncement 31.07.2024 of the Negotiable Instruments Act. The Court below went wrong in taking cognizance of the complaint."
24.In the case of DS Shridhar vs. P Jhon and Anr Cr No. 3492/2022 the Hon'ble Telangana High Court had held that:
"3. Under Section 138 of the Negotiable Instruments Act, prosecution can be launched if the cheque is returned unpaid for the reason of 'insufficient funds' or 'it exceeds arrangement to be paid'. The Hon'ble Supreme Court held that apart from two reasons, if the reasons are 'account closed' and 'payment stopped' by the drawer' are also liable under Section 138 of the Negotiable Instruments Act.
4. As seen from the cheque, it was printed in the year 2008. The Bank has returned the cheque by specifically mentioning reason of 'kindly contact drawer/drawee bank and please present again' which is in the handwriting of the banker stating that drawer or drawee bank has to be contacted and then present the cheque.
5. As stated in the complaint, the question of returning the cheque for 'insufficient funds' does not arise. As seen from the cheque return memo, the reason of 'funds insufficient' is number 6. The Bank has returned twice for the reason 19 stating 'kindly contact drawer/drawee bank and please present again' which was handwritten. When the reason for returning the cheque does not conform to the twin requirements mentioned under Section 138 of the Negotiable Instruments Act or if the account is closed and payment stopped by drawer as stated by the Hon'ble Supreme Court, the reason mentioned by the Banker to contact the drawer or drawee bank and present again Page no. 15/18 CC NI ACT 1873/2021 Raminder Kaur VS Narinder Singh Date of Pronouncement 31.07.2024 will not amount to a reason for which, the prosecution under Section 138 of the Negotiable Instruments Act can be launched.
6. If the complainant is aggrieved and in the facts of the case if an offence of cheating as defined under Section 415 of IPC is made out, complainant is at liberty to prosecute accordingly. Since there are no ingredients to launch prosecution under Section 138 of the Negotiable Instruments Act, the proceedings against the petitioner are liable to be quashed."
25. In the case of Vignesh Builders vs. M/S Sastha Associates Crl.O.P.No. 8864/2021 Hon'ble Madras High Court again held that:
"6. However, in the facts of the present case, the concerned bank has not returned the cheque on the ground of defect. It has been returned by directing the respondent to contact the concerned bank and present it again. In short, this endorsement cannot be held to be dishonor of cheque. In the considered view of the Court, the respondent without complying with the requirements of the bank, ought not to have proceeded to file a complaint under Section 138 NI Act. The Court below went wrong in taking the cognizance of the complaint."
26. In the case of AC Raj vs. M Rajan and Anr (1996) Hon'ble Kerela High Court had endorsed the similar point of view and held that in para 7 of the judgement that:
"This Court has ruled in more than one case that the endorsement "refer to drawer" could mean many reasons including the reason that there was no sufficient fund for honoring the cheque. In that Page no. 16/18 CC NI ACT 1873/2021 Raminder Kaur VS Narinder Singh Date of Pronouncement 31.07.2024 line, the only testimony is the oral testimony of PW1. As indicated earlier in the complaint it is mentioned that the reason for return of the cheque was insufficiency of funds. The same is repeated in the oral testimony also. The fact that there was no sufficient fund, was one capable of being proved by the examination of the Manager of the bank or any other official of the bank, and production of documents relating to Account maintained by the drawer. Those are items of least evidence in the circumstances, to prove that there was no sufficient fund when the cheque was presented and returned."
27. From the careful perusal of the judgements as stated above it is clear that when the cheque is returned unpaid with the remarks "refer to drawer/drawee bank and please present again", it becomes the duty of the complainant to bring on record enough material or evidence to prove that the dishonoring of the cheque in question was a willful act on the part of the accused as he did not have the intention to honor the payment or had insufficient balance in his account to clear the payment. The complainant had the opportunity however, has failed to call the bank witness of the drawee bank to prove the fact whether the accused had sufficient funds in his bank account or not at the time of presentation of the cheque in question. Furthermore, despite clear instructions to present the cheque in question again after contacting the drawer/drawee bank, no explanation is given as to why the cheque in question was not presented again by the complainant before the bank and why straightaway the resort of filing the present complaint was opted by her.
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28.In the light of abovesaid judgements, it cannot be said that the complainant has proven its case beyond reasonable doubts and it is safe to say that the complainant has failed to stand on its own legs to prove its case. Again reiterated, it is true that in NI Act cases under Section 138 the complainant stands benefited with the presumption raised under Section 139, however, in the considered opinion of this Court the conviction of the accused cannot be based solely on the ground of presumption. Further it is a settled law that the presumption only lightens the burden of proof on the complainant, it never takes away the duty on the part of the complainant to prove its case on basis of merits by producing sufficient materials on record.
29.In light of the above discussion, the accused Sh. Narinder Singh is Acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act in respect of cheque Ex CW 1/2.
Announced in the open court on 31.07.2024.
The judgment contains 18 pages and 29 paragraphs and all pages bear my digital signatures.
SHRUTI SHARMA II) Judicial Magistrate First Class (NI Act) Digital Court-01, North West, Rohini Courts, Delhi/31.07.2024 Page no. 18/18