Delhi District Court
Sandeep Kumar ... Complainant vs Sampat Singh ... Accused on 6 March, 2023
IN THE COURT OF SH APOORV BHARDWAJ, MM-08
(NI ACT) SOUTH WEST/DWARKA COURTS/DELHI
In case of:-
SANDEEP KUMAR ... Complainant
VERSUS
SAMPAT SINGH ... Accused
JUDGMENT
a) Sl no. of the case : 44183/2018
b) CNR of the case : DLSW020442012018
c) Date of institution 14.11.2018
d) Name, parentage and Sandeep Kumar
address of the S/o Sh. Azad Singh
complainant : R/o 373, Dichaon Kalan
New Delhi - 110043
e) Name, parentage and Sampat Singh
address of the accused S/o Sh. Rajbir Singh
persons: R/o 259/2, Garhwal Colony
Ward No. 2,
Near Gaushala Gate no. 2
Mehrauli, New Delhi
f) Offence complained of : 138 NI Act
g) Total cheque amount : Rs 2,00,000/-
h) Plea of the accused : Pleaded not guilty
i) Arguments heard on : 25.01.2023
j) Final order : Acquitted
k) Date of Judgment : 06.03.2023
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. As per the complainant, the parties were having family and friendly relations. The accused approached the complainant for a friendly loan of Rs 2,00,000/- (Rupees One Lakh Only) for a period of three months for his urgent requirement. Thereafter on 24.06.18 the complainant advanced a sum of Rs 2,00,000/- to the accused in cash. The accused on his part handed over a post dated cheque i.e. the cheque in question bearing no. 759416 dated 24.09.2018 for a sum of Rs 2,00,000/- drawn on Andhra Bank. Thereafter, the complainant presented this cheque on 28.09.2018 to his bank, however, the same was returned unpaid for the reason "Funds Insufficient'' vide returning memo dated 04.10.2018. Thereafter, despite issuance of legal demand notice to the accused, the accused failed to pay the cheque amount within 15 days thereof and hence the present case.
3. Upon a prima facie consideration of pre-summoning evidence, cognizance of offence under section 138 NI Act was taken and the accused persons were 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 he pleaded not guilty and claimed Ct No.44183/2018 Sandeep Kumar v. Sampat Singh page no. 2 of 17 trial. At this stage the accused admitted his signatures but denied having filled the material particulars. He also denied issuing the cheque in question to the complainant and stated that he does not remember whether he received the legal demand notice or not. In his defence he stated that-
" The cheque in question was given by me to one Anoop Singh who was our common friend. I had repaid the entire amount to him. The cheque in question has been misused by the complainant by taking it from Anoop Singh. I have no liability towards the complainant "
Thereafter, cross-examination of the complainant's witnesses under section 145(2) NI Act was permitted.
4. The complainant examined himself as CW1 and adopted his pre-summoning evidence as his post summoning evidence and relied on his evidence by way of affidavit Ex CW1/H and on the following documents i.e. a. Ex. CW1/A (cheque in question) b. Ex. CW1/B (returning memo) c. Ex. CW1/C (legal demand notice) d. Ex CW1/D (postal receipt) e. Ex CW1/E (Complaint)
5. Thereafter, CW-1 was cross-examined. During his cross-examination he stated that he has known the accused since the year 2012 as he used to be his next door neighbour. There were family relations between them and they used to go to each others' families' functions also. The accused resides with his in-laws, wife, sons and sister-in-law. However, he could not tell Ct No.44183/2018 Sandeep Kumar v. Sampat Singh page no. 3 of 17 any of their names. Anoop Singh was a friend who is now deceased. Accused had a separate transaction with Anoop Singh and the accused had taken a loan of Rs 1 to 1.5 lakhs from Anoop on interest. He denied various suggestions given by Ld. Counsel for the accused.
6. In the statement of the accused under section 313 CrPC, he reiterated his defence disclosed at the stage of framing of notice under section 251 CrPC. He opted to lead Defence Evidence.
7. The accused appeared as DW-1 and placed on record his Aadhar Card as Ex DW1/1. He reiterated his defence. He was also cross-examined. During his cross examination, he stated that he had applied for his aadhar card in 2003/2004 and had changed his mobile number linked to his Aadhar Card around one and a half years ago. The complainant has come to reside in the house adjacent to his home around 3-4 years ago. They reside in an unauthorised colony where people adopt whichever house number they wish to adopt. Gate no. 2 of Gaushala is nearer to his home than Bhuiya Chowk. He denied various suggestions given by Ld. Counsel for the complainant.
8. During the course of final arguments Ld counsel for the complainant submitted that the complainant has duly proved his case by placing on record the entire documentary evidence. He also submitted that the accused has failed to rebut the presumption against him. He prayed that the accused be convicted.
9. Per contra, Ld Counsel for the accused submitted that since the address mentioned on the legal demand notice itself is incorrect, no presumption can be raised against the accused. He further Ct No.44183/2018 Sandeep Kumar v. Sampat Singh page no. 4 of 17 submitted that there are various lacunas in the story of the complainant and he has hatched a conspiracy to file a false case against the accused.
Legal Position:-
10. Before proceeding further to reflect upon the defence and evaluation of evidence, the foremost check point is whether the 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:-
a. 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;
b. The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
c. 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;
d. 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;
Ct No.44183/2018 Sandeep Kumar v. Sampat Singh page no. 5 of 17 e. 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;
f. The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder 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.
11. 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 Ct No.44183/2018 Sandeep Kumar v. Sampat Singh page no. 6 of 17 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
12. 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 the complainant has prima facie proved the issuance of cheque by the accused towards the legal liability in favour of the complainant from the account maintained by him, so as to constitute an offence under section 138 NI Act. To carve out a prima facie case the complainant has filed on record original cheque as Ex. CW1/A. The said cheque was presented to the bank within a period of three months from the date on which it was drawn and was returned dishonoured for the reason "Funds Insufficient". The return memo dated 04.10.2018 bearing the fact of dishonour of cheque in question has been exhibited by the complainant as Ex. CW1/B. The complainant then sent a legal notice, Ex CW1/C dated 18.10.2020 on the same date i.e. within the period of statutory requirement of 30 days from the date of receipt of information of dishonour. The original postal receipt of the legal demand notice has been filed as Ex. CW1/D. I shall observe right here that the complainant has not filed any tracking report with respect to delivery of legal demand notice.
Ct No.44183/2018 Sandeep Kumar v. Sampat Singh page no. 7 of 17
13.In the present case the accused has admitted his signatures on the cheque in question but denied having filled material particulars on it. He has denied issuing the cheque to the complainant. He has further denied having received the legal demand notice and has also stated that the address mentioned thereon is incorrect. The address mentioned on the legal demand notice (and the memo of parties) is H.No 259/2, Garhwal Colony, Ward no. 2, Near Gaushala Gate no. 2, Mehrauli, New Delhi whereas the address provided by the accused since the inception of the trial is 266E, 50/2, Bhuiya Chowk, Mehrauli, New Delhi. This address has been provided by the accused to the court at the stage of framing of notice under section 251 CrPC, at the stage of recording of his statement under section 313 CrPC as well as at the stage of appearing as a defence witness. This is the same address mentioned by him at his bail bonds. Moreover, this very address is mentioned on the Aadhar Card of the Accused Ex DW1/1. Therefore, it stands proved that the legal notice was addressed incorrectly.
14. Ld. Counsel for the complainant has vehemently drawn my attention to the following aspects emerging from the testimony of the accused.
a. The accused has stated during his cross-examination that he resides in an unauthorised colony where people adopt whatever house number they wish to adopt, therefore, the accused cannot take the plea that Ct No.44183/2018 Sandeep Kumar v. Sampat Singh page no. 8 of 17 the address mentioned on the legal demand notice is incorrect.
b. The accused has admitted during his cross-examination that the gate no. 2 of Gaushala is nearer to his residence than Bhuiya Chowk, therefore, the address mentioned on the legal demand notice shall be taken to be the correct one.
c. The accused had updated his Aadhar Card during the course of the trial and changed his address thereon.
15. With respect to the above noted submissions, this court observes the following a. The fact that people in a locality adopt House Numbers as per their convenience and preference does not give any licence to the complainant to send legal demand notice to any address he wishes to in that locality. To sustain an action under section 138 N.I. Act the complainant must show that he had sent the legal demand notice to the correct address. b. The fact that Gaushala is nearer to the address of the accused than Bhuiya Chowk, is again not a valid ground for assuming that the legal notice was posted on the correct address. A person's address cannot be proved by circumstantial evidence when a documentary proof in the form of a Government ID (Aadhar Card) is on record.
c. During the cross-examination of the accused, he had stated that he had applied for an Aadhar Card in the year 2003-2004 and had changed his mobile number Ct No.44183/2018 Sandeep Kumar v. Sampat Singh page no. 9 of 17 linked to his Aadhar Card around one and a half years ago. Thereafter he denied the suggestion that he had got his address changed on his Aadhar Card after receiving the legal demand notice. The suggestion given by Ld. Counsel for the complainant does not inspire the confidence of this court for the following reasons :-
i. The onus was on the complainant to prove that the address on the Aadhar Card was updated after receiving the legal demand notice. However, the complainant did not take any such steps.
ii. The process of change/update of Address on Aadhar Card is indeed an easy process which can be done entirely online. There is also no limitation on the number of times a person can update the address on his Aadhar Card. However, this does not mean that the process is without reasonable checks and scrutiny. Before updating an address, an Aadhar Card holder is required to provide a supporting document.1 This means that the address sought to be updated on the Aadhar Card is already reflected in at least one more identity document of the person. Moreover, it is not the case of either party that the accused has 1 I take notice of the process of updating Aadhar Card, accessible on https://uidai.gov.in/. List of supporting documents is accessible on valid_documents_list.pdf (uidai.gov.in) Ct No.44183/2018 Sandeep Kumar v. Sampat Singh page no. 10 of 17 changed his location. Their respective cases diverge only on the aspect of what shall be the actual address of the physical location being occupied by the accused. In this regard, Aadhar Card of the accused is by far the best evidence for this court to rely on.
16. I am also conscious of the decision of the Hon'ble Supreme Court of India in C C Alavi Haji v Palapetty Muhammad (2007) 6 SCC 555, wherein it was held that if the accused did not receive the legal demand notice she could pay the cheque amount within 15 days of receiving the summons. However, that judgment was given in the context of legal notice itself being sent on the correct address. Reliance can be placed on the decision of Hon'ble High Court of Delhi in R L Verma & Sons v P C Sharma 2019 SCC OnLine Del 8964 wherein an order of conviction was overturned on the ground that since the legal notice itself was sent on an incorrect address, presumption against the accused could not be raised. Similar view has also been taken by Hon'ble High Court of Jammu Kashmir and Ladakh recently in Engineering Control v Banday Infratech Pvt. Ltd 2022 SCC OnLine J&K
540.
17.Moreover, in the present case, even summons have not been served upon the accused. The report of process server dated 01.04.2019 states that upon making local inquiry from nearby residents he was informed that the given street was populated with houses having numbers in the series 266 P/20 to 266 E and the adjoining street was populated with houses having numbers in the Ct No.44183/2018 Sandeep Kumar v. Sampat Singh page no. 11 of 17 series 107, 108 and so on. This further indicates that the House No. provided by the complainant could not be located in the locality and that any legal notice sent by the complainant was inherently incapable of being served upon the accused.
18. The tracking report with respect to legal demand notice could have been a crucial piece of evidence in this case, but for reasons best known to the complainant, it was never brought on record.
19. Section 138 of NI Act mandates the issuance of the statutory notice as a pre-condition to filing of a complaint. The cause of action to file a complaint under section 138 of the Negotiable Instruments Act arises only on issuance and service of statutory notice and failure of the accused to comply with the statutory notice. In the absence of service of statutory notice the cause of action would not accrue. Therefore, in view of the above discussion, this court comes to the conclusion that since the legal demand notice was itself sent to a wrong address, the basic ingredients of section 138 N.I. Act are not satisfied and presumption cannot be raised against the accused. The accused is bound to be acquitted on this ground alone.
20. Although it is now of only academic interest, I shall also answer what would have been the fate of this case, if presumption were to be raised against the accused. 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 and lack of consideration Ct No.44183/2018 Sandeep Kumar v. Sampat Singh page no. 12 of 17 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.
21. 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 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].
22. 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.
Ct No.44183/2018 Sandeep Kumar v. Sampat Singh page no. 13 of 17 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].
23. Having referred to the above judicial pronouncements, I shall now analyse the record in their light. The version of the accused rests on the following four pillars:-
i. He did not have friendly relations with the complainant ii. He had taken a loan of Rs 2 lakhs from one Anoop.
iii. Anoop and the complainant were friends. iv. The cheque in question has reached the complainant through Anoop.
24.With respect to the above mentioned version of the accused, this court observes the following a. It is probable that the parties were not friends.
i. The complainant has stated during his cross-examination that he knows the accused since the year 2012 and they are next door neighbours. The accused has stated during his cross-examination that the complainant has come to reside in the house adjacent to his around 3-4 years ago. This testimony of the accused has gone unrebutted. Moreover, in the memo of parties, the complainant has Ct No.44183/2018 Sandeep Kumar v. Sampat Singh page no. 14 of 17 mentioned that he is a resident of Dichaon Kalan whereas the accused is a resident of Mehrauli.2 The complaint was filed on 14.11.2018, the complainant was cross-examined on 02.09.2022 and the accused was cross-examined on 14.12.2022. This clearly shows that on the date of filing of the complaint the parties were not neighbours and have become neighbours subsequently.
ii. The complainant stated that he used to go to the family functions of the accused. He could not tell the names of the family members of the accused although he could identify them by their respective relations with the accused.
Here again, I am conscious that the
complainant was cross-examined on
02.09.2022 that is after around 4 years of him having become the next-door neighbour of the accused. Therefore, the knowledge about who is residing with him could have been acquired post-filing the complaint. Even otherwise, given the fact that he could not tell the names of the family members of the accused despite claiming that he has even gone to his family functions shows that the friendly terms forming the basis of advancing the interest-free loan were not as strong as being alleged.
2The Pincode of Dichaon Kalan is 110043 and the Pincode of Mehrauli is 110030. Ct No.44183/2018 Sandeep Kumar v. Sampat Singh page no. 15 of 17 b. It is safe to believe that Anoop had advanced a loan to the accused and that Anoop and the complainant were friends.
i. The complainant has corroborated the version of the accused in this regard. He has stated during his cross-examination that he and Anoop were friends and that as per his knowledge the accused took a loan of Rs 1 to 1.5 lakhs on interest from Anoop.
c. As far as handing over of the cheque in question to the complainant by Anoop is concerned, the existence or non-existence of this fact could have been proved only by Anoop. However, Anoop could not be examined as a witness due to his unfortunate demise. A fact which has also been admitted between the parties.
25. Therefore, the accused has successfully brought on record such circumstances which indicate a probable defence. Three out of four limbs of his version do stand proved on a scale of preponderance of probabilities. Further his defence has been consistent and clear. In such a scenario, his version cannot be discarded due to lack of proof with respect to the fourth leg of his story as that would tantamount to insistence on a negative and impossible to attain evidence. Balancing the human right presumption of innocence with the presumptions under section 138 NI Act, in the facts of this case, this court would come to the conclusion that the presumption (if it were to be raised) stands Ct No.44183/2018 Sandeep Kumar v. Sampat Singh page no. 16 of 17 successfully rebutted.
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 Sh. Sampat Singh is not guilty of offence under Section 138 of Negotiable Instruments Act, 1881 and accordingly, he is hereby acquitted under Section 138 of Negotiable Instruments Act, 1881.
Announced in open court on 06.03.2023 Judgment consists of 17 pages.
APOORV BHARDWAJ MM-08 (NI Act) SOUTH WEST:DWARKA COURTS.
N.D/06.03.2023 Ct No.44183/2018 Sandeep Kumar v. Sampat Singh page no. 17 of 17