Delhi District Court
Harbhajan Singh vs Nirmal Kaur on 16 July, 2018
IN THE COURT OF SHRI GAGANDEEP JINDAL: MM 09:
SOUTHEAST DISTRICT, SAKET COURTS COMPLEX: NEW DELHI
Harbhajan Singh Vs Nirmal Kaur
U/s 138 Negotiable Instruments Act, 1881
1. CIS no. : 632199/16
2. Name of the complainant : Harbhajan Singh
S/o Late Sh. Gurmukh Singh
R/o N13, Kasturba Niketan, Lajpat
NagarII, New Delhi110024
3. Name of the accused, parentage & : Sh. Nirmal Kaur,
residential address W/o Late Sh. Mohan Singh
R/o CP690, First Floor,
Sunlight ColonyII,
Ashram, New Delhi.
4. Offence complained of or proved : U/s 138 of Negotiable Instruments Act,
1881
5. Plea of the accused : Pleaded not guilty and claimed trial
6. Final Judgment/order : Acquitted
7. Date of judgment/order : 16.07.2018
CIS No.632199/16 Harbhajan Singh Vs. Nirmal Kaur page 1 of 7
Date of Institution : 07.05.2016
Date of Reserving Judgment/Order : 06.07.2018
Date of Pronouncement of Judgment/Order : 16.07.2018
JUDGMENT
1. By way of the present Judgment, I shall dispose off the present complaint filed by Sh. Harbhajan Singh (hereinafter referred to as 'complainant') against Smt. Nirmal Kaur (hereinafter referred to as 'accused' ) u/s 138 of Negotiable Instruments Act, 1881 r/w Section 142 Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I. Act' in short).
2. Accused has furnished bail bond u/s 437A Cr.P.C.
3. It is submitted by the complainant in his complaint that accused approached him for financial help of Rs. 3 lacs in February, 2013. Complainant gave Rs. 3 lacs to accused and her son on 23.03.2013 by way of cash of Rs. 2 lacs and Rs. 1 lacs through cheque bearing no. 328030 dated 23.03.2013. The cheque was duly credited in the account of accused. The accused and his family members handed over two cheques bearing no. 108873 and 569002, both dated 25.03.2015 drawn on Canara Bank for Rs. 3 lacs and also executed an agreement dated 01.02.2013 executed on 23.03.2013. Before presenting the said cheque a legal notice dated 11.03.2015 was served upon the accused. After receipt of the said legal notice, CIS No.632199/16 Harbhajan Singh Vs. Nirmal Kaur page 2 of 7 accused prayed for further time up to 28.02.2016 to discharge his liability. The time for payment was extended and fresh agreement 30.05.2015 was also executed. Son of accused issued cheque bearing number 770341 dated 28.02.2016 of Rs. 2 lacs drawn on SBI, Jasola, New Delhi and accused issued cheque no. 570489 dated 28.02.2016 for a sum of Rs. 1 lac drawn on Canara Bank, Maharani Bagh, New Delhi. On the presentation of the cheque by the complainant through his banker, these were dishonoured and returned unpaid with the remarks "Funds Insufficient"
vide returning memo 08.03.2016. Thereafter, complainant got issued legal demand notice dated 30.03.2016 through registered post and AD Card but accused failed to make the payment against the dishonoured cheque within 15 days from the date of service of legal demand notice. Hence, the present case was filed.
4. Notice u/s 251 Cr.P.C. was framed against the accused to which she pleaded not guilty and claimed trial.
5. To prove his case, complainant examined himself as CW1 and filed his evidence by way of affidavit Ex.CW1/A and relied upon the following documents:
(a) Original cheque Ex.CW1/1;
(b) Returning memo dated 08.03.2016 Ex.CW1/2
(c) Copy of mortgage agreement Ex. CW1/3
(d) Copy of agreement dated 30.05.2015 Ex. CW1/4 CIS No.632199/16 Harbhajan Singh Vs. Nirmal Kaur page 3 of 7
(e) Copy of legal demand notice Ex.CW1/5
(f) Copy of postal receipts and tracking report Ex.CW1/6 to Ex. CW1/9.
6. Complainant has also examined his son Devinder Singh as CW2.
7. In the statement of accused persons recorded u/s 313 Cr.P.C., all the incriminating evidence were put to the accused to which accused has stated that she borrowed Rs. 1 lac from the complainant and issued four cheques including cheque in question in blank.
8. No defence witness was examined on behalf of the accused.
9. Final arguments on behalf of both parties heard.
10. The Ld. counsel for the complainant argued that during the cross examination of CW1 and CW2 certain suggestions were put to them which itself proves that accused and her son borrowed Rs. 3 lacs from the complainant. They failed to repay the loan amount. He further argued that accused failed to raise the probable defence to disprove the case of complainant and to rebut the presumption U/s 139 NI Act. Therefore, accused be convicted for the offence U/s 138 NI Act.
11. Ld. counsel for the accused has submitted that the agreement Ex. CW1/3 is dated 01.02.2013, however, the stamp paper on which it was executed, was purchased on 23.03.2013 which itself proves that the said agreement is forged and CIS No.632199/16 Harbhajan Singh Vs. Nirmal Kaur page 4 of 7 fabricated document. That accused had borrowed only Rs. 1 lac which had already been repaid. The cheque in question was given by accused to complainant for security purpose only which was misused by the complainant.
12. To prove the fact of loan complainant has relied upon the agreement Ex.
CW1/4 and Ex. CW1/5. Accused did not lead any evidence to disprove her signatures on these agreements. Even no suggestion was put to CW1 and CW2 that even CW1/4 and CW1/5 does not bears the signature of accused. Thus, the signatures of accused on agreement Ex. CW1/4 and Ex. CW1/5 is proved.
13. Furthermore, during the cross examination of CW2, the following suggestion was given: "it is correct that Rs. 3 lacs was given to above mentioned persons in the year 2013 itself and no money was given thereafter........".
" It is wrong to suggest that I collected the monthly installment of Rs. 9000/ each on 23.04.2013, 23.05.2013, 23.06.2013, 23.07.2013, 23.08.2013, 23.09.2013, 23.10.2013, 23.11.2013, 23.12.2013, 03.01.2014, 26.02.2014, 08.03.2014, 22.04.2014, 29.05.2014, 25.06.2014, 30.07.2014, 25.08.2014, 27.09.2014, 26.11.2014, 24.01.2015, 27.02.2015, 25.05.2015, 26.06.2015, & Rs. 5000/ on 29.03.2015.
14. These suggestions itself disprove the defence raised by the accused that only the loan of Rs. 1 lac was taken by her, rather it is admission of accused that Rs. 3 lacs was borrowed by her and her son because no ordinary prudent person shall return more money than what he/she had borrowed.
CIS No.632199/16 Harbhajan Singh Vs. Nirmal Kaur page 5 of 7
15. Accused did not lead any evidence to prove the payment alleged by her during the cross examination of CW2. Thus, it is proved beyond reasonable doubt that accused and her son borrowed Rs. 3 lacs and to discharge their liability, the cheque in question was issued by the accused.
16. However, during the cross examination of CW1/complainant, he had categorically admitted that he received Rs. 8,000/ vide cheque no. 570483 dated 28.10.2014, Rs. 8500/ vide cheque no. 570485 dated 08.12.2014 and Rs. 10,000/ vide cheque no. 570488 dated 01.04.2015 from the accused which were issued in the name of his son Devinder. In the clause no. 5 of agreement Ex. CW1/3, it is categorically mentioned that no interest shall be paid by the first party (accused) on loan amount to the second party (complainant). Despite receiving the payments of Rs. 26500/ from the accused, complainant as presented the cheque for whole amount of Rs. 1 lac instead of actual due amount. It is the settled principal of law that no personal can be held liable for offence u/s 138 NI Act if his /her actual liability was less than the cheque amount on the day of its presentation in bank for encashment. Reliance in this regard can be placed upon the judgment of Hon'ble High Court of Delhi in M/s Alliance Infrastructure Project Pvt. Ltd. and Ors. Vs Vinay Mittal Crl. M.C. No.2224/2009 dated 18.01.2010.
17. In the present case also, accused was not liable to pay whole cheque amount of Rs. 1 lac to complainant as on 08.03.2015 when the cheque in question was CIS No.632199/16 Harbhajan Singh Vs. Nirmal Kaur page 6 of 7 presented for encashment because complainant had admitted the payment of Rs. 26500/ to him and issuance of cheque of Rs. 2 lacs by son of accused which is subject matter in CC no. 622128/16 titled as Harbhajan Singh Vs. Gian Singh.
Conclusion:
18. In view of the aforesaid findings, the court is of the considered opinion that accused is able to adduce a probable defence in her favour that she was not liable to pay the cheque amount of Rs. 1 lac to complainant and successfully rebut the presumption u/s 139 of Negotiable Instruments Act. The onus to prove the legal liability of the accused shifts back to the complainant, which the complainant has failed to discharge. Hence, accused Mrs. Nirmal Kaur is acquitted for the offence u/s 138 N.I. Act. Digitally signed by GAGANDEEP GAGANDEEP JINDAL JINDAL Date: 2018.07.16 17:13:50 +0530 Announced and signed in the open court (Gagandeep Jindal) on 16.07.2018 MM09:South East District Saket Courts, New Delhi CIS No.632199/16 Harbhajan Singh Vs. Nirmal Kaur page 7 of 7