Delhi District Court
Jugal Kishore vs Khushali Devi on 7 April, 2025
IN THE COURT OF MS. NEHA GOEL, JUDICIAL MAGISTRATE (FIRST
CLASS) NI ACT- 02, CENTRAL, TIS HAZARI COURT, DELHI.
CC No. 13807-2019
CNR No. DLCT020313072019
JUGAL KISHORE Vs. KHUSHALI DEVI
U/s 138 N. I. Act
PS KAROL BAGH
JUDGMENT
1. Sl. No. of the case 13807/2019
2. Date of institution of the case 17.12.2019
3. Name of the Complainant Sh. Jugal Kishore S/o Late Sh. Dal Chand, R/o 3634/13, Raigar Pura, Karol Bagh, New Delhi-110005. And also at :
4907, Gali No. 42, Raigar Pura, New Delhi-110005.
4. Name of Accused, parentage Smt. Khushali Devi, W/o Late Sh.
and address Prabhu Dayal, R/o 4488, 4th Floor, Gali No. 53, Raigar Pura, New Delhi-110005.
And also at : Indian Overseas Bank, F-47, Janpath Road, New Delhi-110001.
5. Offence complained of Section 138 Negotiable Instruments Act, 1881.
6. Plea of Accused Accused Khushali Devi pleaded not guilty.
7. Final Order Accused Khushali Devi is acquitted.
8. Date of pronouncement 07.04.2025 CC No. 13807/2019 Jugal Kishore Vs. Khushali Devi Page 1 of 16 Digitally signed by NEHA NEHA GOEL GOEL Date:
2025.04.07 15:17:41 +0530
1. Factual Matrix: The brief facts as alleged by the complainant in the complaint are that complainant and accused is residing in the same locality and are known to each other since long and there are good friendly and visiting terms between the families of accused and complainant. In the month of June, 2019 the accused approached the complainant for obtaining a friendly loan of Rs. 1,40,000/- (Rupees One Lac Forty Thousand Only) for personal needs and requirement for four months, and the complainant in good faith gave the accused the aforesaid sum of Rs. 1,40,000/- in cash. In liquidation of her abovesaid liability towards the complainant, the accused issued a cheque bearing no. 761064 dated 24.10.2019 for the amount of Rs. 1,40,000/- (Rupees One Lac Forty Thousand Only) drawn on Indian Overseas Bank, Janpath Branch, New Delhi-110001, in favour of the complainant, and assured the complainant that the same will be honoured as and when presented the bank. Believing upon the accused and her assurance the complainant accepted the said cheque and presented the same with his banker i.e. Syndicate Bank, Dev Nagar Branch, New Delhi but the same was returned back dishonoured with remarks "Payment Stopped by Drawer" vide returning memo dated 31.10.2019. The complainant contacted the accused and apprised about the fate of the above referred cheque issued by the accused to the complainant. The accused expressed her regrets and felt sorry for the inconvenience caused to the complainant on this account and told the complainant that within 4-5 days time the accused will be arranging the money against the said dishonored cheque but till date the accused failed to make the payment. Complainant sent a legal demand notice dated 19.11.2019 through speed post to the accused which was duly served to the accused. After receipt of said legal notice, the accused person sent a CC No. 13807/2019 Jugal Kishore Vs. Khushali Devi Page 2 of 16 Digitally signed by NEHA NEHA GOEL GOEL Date:
2025.04.07 15:17:46 +0530 totally false, frivolous, vague and baseless reply dated 02.12.2019. Accused has failed to make payment despite service of legal demand notice. Hence, the present complaint u/s 138 Negotiable Instrument Act 1881 was filed by the complainant. The complainant has averred that the present complaint is within the period of limitation and falls within the territorial limits of this Court's jurisdiction; thus, being tenable at law.
2. Pre-summoning Evidence: To prove a prima-facie case, the complainant led pre-summoning evidence by way of affidavit Ex. CW1/A on 24.12.2019 wherein the complainant has affirmed the facts stated in the instant complaint. To prove the case, the complainant has relied upon the following documents:
S. Description of document Exhibit No. No. 1 Original cheque bearing no. 761064 dated Ex. CW1/1 24.10.2019 for sum of Rs. 1,40,000/- drawn on Indian Overseas Bank Ltd, Janpath Branch, New Delhi.
2 Original Return memo dated 31.10.2019 Ex. CW1/2 3 Legal demand notice dated 19.11.2019 Ex. CW1/3 4 Original Post receipt dated 20.11.2019 Ex. CW1/4 5 Original Post receipt dated 20.11.2019 Ex. CW1/5 6 Tracking report Ex. CW1/6 7 Tracking report Ex. CW1/7 8 Complaint u/s 138 NI Act Ex. CW1/8 (not mentioned on the CC No. 13807/2019 Jugal Kishore Vs. Khushali Devi Page 3 of 16 Digitally signed by NEHA NEHA GOEL GOEL Date:
2025.04.07 15:17:51 +0530 complaint)
9 Photocopy of Aadhar Card of complainant Ex. CW1/9
3. Summoning of the Accused: On finding of a prima-facie case against the accused, accused was summoned on 24.12.2019. Accused appeared through VC on 07.09.2020.
4. Framing of notice & plea of defence: Notice u/s 251 Cr.P.C. was framed against the accused on 10.03.2021 to which he pleaded not guilty and claimed trial. The plea of defence of the accused was recorded where the accused had stated that "The cheque in question is my cheque and bears my signature but the particulars on the same have not been filled by me. I had given the cheque in question to my daughter in law Mrs. Hemlata for the purpose of purchasing a refrigerator and a washing machine from Vijay Sales. She had informed me that the said cheque along with another cheque that I had given to her, had been misplaced/lost around our residence. I do not know the complainant and I had not taken any money from him. I do not have any outstanding liability against the complainant. I do not want to say anything else."
5. An application u/s 145 (2) NI Act was filed on behalf of accused on 29.09.2021 and the same was allowed on 05.02.2022.
6. Evidence of the Complainant: Matter was put up for CE. CW1 Jugal Kishore was examined and cross examined. He was discharged on 18.09.2023. CE was closed vide separate statement of complainant. Matter was put up for recording statement of accused u/s 281/313 CrPC.
7. Statement of the Accused: Statement of the accused was recorded u/s 281/313 Cr.P.C. on 31.10.2023 wherein all the incriminating circumstances appearing in evidence against the accused were put to her and she was asked to explain the same. She stated that "I am innocent.
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Digitally
signed by
NEHA NEHA GOEL
Date:
GOEL 2025.04.07
15:17:55
+0530
The cheque in question is my cheque and bears my signature but the particulars on the same have not been filled by me. I had given the cheque in question to my daughter in law Mrs. Hemlata for the purpose of purchasing a refrigerator and a washing machine from Vijay Sales.She has informed me that the said cheque alongwith aadhar card was lost at Shop No. 4907, Gali No. 42, Regurpura, Delhi that I had given to her, had been misplaced/lost around our residence. The complainant has misused the said cheque. In the said cheque, I have only put my signature and no particulars were written in my hand. I do not read, write English language. The complaint was lodged to the police station on 31.07.2019 and payment was stopped. I do not know the complainant and I had not taken any money from him. I do not have any liability towards the complainant. I do not wish to say anything else. I have sufficient knowledge of the accusation against me."
8. Defence Evidence: Matter was put up for DE. DW1 Hemlata was examined in chief and cross examined. She was discharged on 19.03.2025. Vide separate statement of accused, DE was closed. Matter was put up for final arguments.
9. I have heard the submissions of the Ld. Counsel for the complainant as well as the accused and gone through the record.
10. Drawer of the cheque is deemed to have committed an offence under Section 138 of the Negotiable Instruments Act only when all ingredients of the section are duly proved.
11. The first ingredient of Section 138 Negotiable Instrument Act, 1881 is that a person has drawn a cheque, on an account maintained by him with a banker for payment of any amount of money to another person from out CC No. 13807/2019 Jugal Kishore Vs. Khushali Devi Page 5 of 16 Digitally signed by NEHA NEHA GOEL GOEL Date:
2025.04.07 15:17:59 +0530 of that for the discharge, in whole or in part, of any legally enforceable debt or other liability.
12. Section 138 NI Act is supported by presumptions u/s 118 and 139 NI Act.
U/s 118 NI Act, unless the contrary was proved, it is to be presumed that the Negotiable Instrument (including a cheque) had been made or drawn for consideration. The initial presumption mandated by Section 139 of the Act is rebuttable in nature and includes the existence of a legally enforceable debt or liability. The Court will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that cheque was issued/executed in his favour by the drawer. Section 139 of the Act is an example of a reverse onus clause and it favours the complainant. The accused cannot be expected to discharge an unduly high standard or proof to rebut the presumption u/s 139 NI Act. The standard of proof for doing so is that of 'preponderance of probabilities' meaning thereby that if accused is able to raise a probable defence creating doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. (Reliance is placed on K.N. Beena V. Maniyappan, AIR 2001 Supreme Court 2895; Rangappa V. Mohan, AIR 2010 Supreme Court 1898; M/s Kalamani Tex V. P. Balasubramanian, AIR Online 2021 SC 82; and Rajesh Jain V. Ajay Singh, [2023] 13 S.C.R.
788).
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13. It is pertinent to note that the accused in notice framed u/s 251 CrPC has admitted that cheque in question bears her signature. Further, the cheque has been drawn on the account of the accused. This leads to drawing of an inference u/s 139 Negotiable Instruments Act 1881 read with s.118 of the Negotiable Instruments Act 1881, that the cheque was issued in discharge of a legally recoverable debt or other liability against accused.
The presumption now having been raised against the accused, it falls upon her to rebut it. The accused has cross examined the complainant and got examined Hemlata as DW1 to rebut the presumption against her. No friendly relations between Complainant and Accused
14. As per Complaint, the Complainant and Accused are stated to be residing in the same locality and known to each other since long and the families of the Complainant and Accused have been stated to be having good visiting terms between them. It has been further stated that Complainant apprised the Accused about dishonored cheque to which Accused expressed her regret and told the Complainant that money will be arranged within 4-5 days but Accused failed to do so.
15. Defence of Accused as per Notice u/s 251 CrPC/Statement of Accused u/s 281/313 CrPC/reply dated 02.12.2019 (Ex. CW1/D3) qua legal demand notice is that Accused does not know the Complainant and there are no friendly terms with the Accused and the families of the Complainant and Accused do not have any visiting relations with each other. It has been further stated that no communication was made by Complainant to Accused apprising her of the dishonour or by Accused to Complainant expressing regret regarding dishonour. Daughter-in-Law of the Accused namely Hemlata (DW1) has corroborated the version of the Accused in her evidence.
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16. Complainant was cross examined in detail as to his alleged friendly relations with the Accused. The deposition of Complainant remained unsatisfactory as to his alleged friendly relations with the Accused.
17. Complainant changed his version multiple times starting from 'end of 2018 to beginning of 2019 to June 2019' as to when he met with the Accused for the first time.
18. Complainant is not aware about any other family members of the Accused except Accused and her daughter in law namely Hemlata. Complainant is not aware of the name of son of Accused or his profession. Complainant has never attended any family function of the Accused.
19. Complainant was allegedly told by Hemlata that Accused works in a Bank, however, Complainant is not aware of the name of the said Bank or designation of Accused or her salary.
20. Complainant is not aware about address of Accused and has never visited the address of Accused. At the same time, Complainant has also stated to have met the Accused 02-03 times after dishonour of cheque in question at her house.
21. Complainant is not aware of the address of the NGO of Hemlata. On one hand, Complainant has stated to have visited office of Accused in basement alongside her house to meet her, on the other hand, Complainant has stated that he was called by Hemlata to her basement office due to her NGO work two-three times. Thus, Complainant is not aware as to whether the basement office belongs to Accused or Hemlata.
22. Thus, the contention of Accused that she does not have friendly relations with the Complainant stands proved in her favour. No friendly loan taken by Accused from Complainant CC No. 13807/2019 Jugal Kishore Vs. Khushali Devi Page 8 of 16 Digitally signed by NEHA NEHA GOEL GOEL Date:
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23. As per Complaint, the Accused approached the Complainant in the month of June, 2019 for obtaining a friendly loan of Rs. 1,40,000/- for personal need for four months and the Complainant gave Rs. 1,40,000/- to the Accused in cash.
24. Defence of Accused as per Notice u/s 251 CrPC/Statement of Accused u/s 281/313 CrPC/reply dated 02.12.2019 (Ex. CW1/D3) qua legal demand notice is that no loan has been taken by Accused from Complainant. It has been further stated that the Complainant was aggrieved by the encroachment of street vendors nearby House bearing No. 4907, Gali No. 42, Raigerpura, New Delhi- 110005 (which is one the addresses of the Complainant as per the Memo of Party) and wanted to get them removed. It has been further stated that Hemlata runs an NGO and the office of Hemlata is nearby the residence of the Complainant. It has been further stated that having remained unsuccessful in removal of street vendors despite approaching higher authorities, Complainant approached Hemlata for help in removal of the encroachers who expressed her inability for the same which annoyed the Complainant. It has been further stated that Complainant defamed Hemlata in public by spreading false rumours against her to the effect that she demanded hefty amount from the Complainant for removal of street vendors. It has been further stated that Complainant is a well-known builder of the area and his modus is to take possession of disputed properties at throwaway prices and sell the same at profit after raising construction on those properties. It has been further stated that Complainant has acquaintance with police personnel and higher officials of Corporation of Delhi and carries out unauthorized constructions with their support without getting any plan sanctioned from the concerned local body. It has been further CC No. 13807/2019 Jugal Kishore Vs. Khushali Devi Page 9 of 16 Digitally signed by NEHA NEHA GOEL GOEL Date:
2025.04.07 15:18:22 +0530 stated that Hemlata lodged Complaint against the Complainant and the Complaint was hand delivered on 31.10.2019 but no action was taken on the said Complaint by Police or MCD. It has been further stated that the Complainant has constantly intimidated Hemlata not to pursue the said Complaint qua the construction at Property No. 4876/42, Raigerpura, Karol Bagh, New Delhi but Hemlata remained undeterred. Hemlata (DW1) has corroborated the version of the Accused in her evidence.
25. Complainant has not disputed that many vegetable vendors sit near his house and Hemlata runs NGO. However, he has denied that he approached Hemlata for help in removal of street vendors or that he lodged any Complaint to the Corporation and Police for removal of street vendors.
26. Complainant has not disputed that he is a builder by profession.
Complainant has not disputed that Hemlata had filed Complaint against Complainant for raising illegal construction on 25.10.2019 in Property No. 4876/42, Raigerpura, Karol Bagh, Delhi. Hemlata has denied that Complaint against the Complainant was lodged as a counter-blast to bouncing of the cheque of Accused or that her NGO was involved in stopping construction of buildings and taking money from people who were constructing their buildings. The Return memo itself shows that the cheque in question got dishonoured on 31.10.2019 by which time the Complaint against the Complainant had already been filed as per admission of Complainant himself.
27. Complainant has stated that loan was given to Accused at the asking of Hemlata in her presence but Hemlata has denied the same. No written documentation exists qua the loan in question.
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28. Complainant produced copy of ITR for FY 2018-19 (AY 2019-20) (Ex.
CW1/D1 (colly.) which shows the gross total income of Complainant as Rs. 4,94,300, cash in hand as Rs. 1,33,990/- and loans and advances as zero. Similarly, Complainant produced copy of Bank statement of Syndicate Bank from 31.10.2017 to 29.01.2019 (Ex. CW1/D2 colly.) showing balance as Rs. 2,85,589.63/-.
29. The alleged loan to the Accused has been shown to have been given in June 2019 and the concerned ITR for FY 2019-20 (AY 2020-21) was not produced by the Complainant. Complainant has also failed to produce Bank account statement for period beyond January 2019 by stating that he does not have the same.
30. Even the previous ITR does not reflect that Complainant has financial capability to lend Rs. 1,40,000/- as the cash in hand has been shown to be Rs. 1,33,990/- and gross income for the whole year was Rs. 4,94,300. Even the Bank balance in January 2019 is showing as Rs. 2,85,589.63/-. It is not believable that a person living in Delhi with Rs. 3-4,00,000/- Annual Income will lend Rs. 1,40,000/- with all the expenditures and family responsibilities that one normally has.
31. It was held by Hon'ble High Court of Delhi in Sheela Sharma vs. Mahen-
dra Pal, (Crl. L.P. 559/2015, decided on 02.08.2016) that in cases where the Complainant claims to have advanced a friendly loan in cash, and where the transaction of loan is not evidenced by any other documentary or other reliable evidence, no doubt, the aspect whether the availability of funds in cash with the Complainant/lender, and its advancement as loan to the Accused have been reflected in the income tax returns of the Com- plainant/lender, or not, become relevant. It was further held that if, the availability of funds, and the loan transaction itself is not so reflected, that CC No. 13807/2019 Jugal Kishore Vs. Khushali Devi Page 11 of 16 Digitally signed by NEHA NEHA GOEL GOEL Date:
2025.04.07 15:18:31 +0530 factor is taken note of by the Court as relevant to hold that the presump- tion under Section 118 and 139 of the NI Act stands rebutted. It was fur- ther held that, however, these considerations would not be relevant, where loan transaction itself is otherwise established, either through documen- tary evidence - such as, a receipt or a loan agreement, or acknowledge- ment executed by the Accused, or by oral evidence of an independent wit- ness who is found to be credible. In the present case, no such independent evidence exists qua the alleged loan in question.
32. From the above discussion, Accused has been able to raise sufficient doubt on the lending of the alleged loan to her by the Complainant. Cheque in question has been misused by the Complainant
33. As per Complaint, Accused has issued a cheque bearing no. 761064 dated 24.10.2019 for the amount of Rs. 1,40,000/- in favour of the Complainant which got dishonoured on 31.10.2019.
34. Defence of Accused as per Notice u/s 251 CrPC/Statement of Accused u/s 281/313 CrPC/reply dated 02.12.2019 (Ex. CW1/D3) qua legal demand notice is that Accused is an employee at Indian Overseas Bank and does not read and write English. It has been further stated that on 30.07.2019, Accused had given the blank signed cheque in question i.e. 761064 alongwith cheque no. 761065 to Hemlata and her husband for the purpose of purchasing a refrigerator and a washing machine from Vijay Sales on installment basis. It has been further stated that on 30.07.2019, Hemlata and her husband visited a plant seller/seed shop situated at property no. 4907, Gali no. 42, Raigerpura, New Delhi- 110005 and the Complainant alongwith his family had been in use/occupation of the property immediately above the said shop. It has been further stated that Complainant saw Hemlata and her husband at the said shop and asked for CC No. 13807/2019 Jugal Kishore Vs. Khushali Devi Page 12 of 16 Digitally signed by NEHA NEHA GOEL GOEL Date:
2025.04.07 15:18:35 +0530 help in removal of street vendors in threatening tone but Hemlata refused to extend any help. It has been further stated that the atmosphere between them became tense and Hemlata left the shop with her husband to avoid any untoward incident. It has been further stated that on reaching Vijay Sales, Hemlata and her husband realized that the polythene having cheque in question i.e. 761064, Aadhar Card and another cheque no. 761065 has been misplaced/lost during journey. It has been further stated that Hemlata informed Accused that the cheque in question i.e. 761064, Aadhar Card and another cheque was misplaced/lost at Shop No. 4907, Gali No. 42, Regurpura, Delhi which is around their residence. It has been further stated that as the documents could not be traced out, a Complaint was lodged to the Police Station on 31.07.2019 and it was specifically stated that cheque in question i.e. 761064 alongwith cheque no. 761065 have been lost. It has been further stated that Bank was also intimated to stop the payment of both the cheques. It has been further stated that the Complainant got hold of the cheque in question i.e. 761064 and cheque no. 761065 and misused the cheque in question i.e. 761064. Hemlata (DW1) has corroborated the version of the Accused in her evidence.
35. Complainant has not disputed that there is a plant shop on ground floor in the same property and he resides on the first floor of the same property, however, he has denied that any such incident mentioned above took place on 30.07.2019 or he has misused the cheque in question found at the plant shop. As per Complainant, the cheque in question was delivered by Accused to Complainant in June 2019 at the office of Hemlata in basement.CC No. 13807/2019 Jugal Kishore Vs. Khushali Devi Page 13 of 16
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36. The Complaint regarding loss of cheque was not filed by Ld. Counsel for Accused during cross examination of Complainant or by Hemlata during her evidence, however, Hemlata was not asked to produce the same by Ld. Counsel for Complainant.
37. It is evident from return memo that cheque has been dishonoured for the reason "payment stopped by drawer". The incident of 30.07.2019 cannot be called as an afterthought as the same has been mentioned in reply to legal demand notice and Accused has remained consistent on her stand throughout the trial.
38. Complainant has not disputed that Accused is able to write only in broken Hindi. At the same time, he has stated that the cheque in question has been filled by Accused. Accused has denied filling the particulars on the cheque in question. The cheque has been signed in broken Hindi by Accused. The rest of the particulars have been written neatly in English.
Even bare perusal of the cheque shows that it has been written by different persons and different inks.
39. Thus, the contention of Accused that cheque in question has been misused by the Complainant stands proved in her favour.
40. Thus, Accused has been able to dislodge the presumption of legally enforceable debt under Sections 118 and 139 of NI Act which were raised against her.
41. Complainant has not been able to prove that the cheque in question was issued by the Accused in discharge of a legally recoverable debt/liability owed to him and therefore, ingredient no. 1 stands unfulfilled as against the Accused.
42. Remaining ingredients of Section 138 Negotiable Instrument Act, 1881:
CC No. 13807/2019 Jugal Kishore Vs. Khushali Devi Page 14 of 16Digitally signed by NEHA NEHA GOEL GOEL Date:
2025.04.07 15:18:45 +0530 A. Cheque in question 761064 dated 24.10.2019 has been presented to the bank within a period of three months from the date on which it is drawn.
B. It shall be presumed1 that the said cheque has been dishonored as complainant has produced bank's slip/memo dated 31.10.2019 having therein the official mark denoting that the cheque has been dishonored for "Payment stopped by Drawer" and no evidence has been led to disprove the said fact. C. Payee has made a demand for payment of the said amount of money by giving a notice dated 19.11.2019 in writing by way of speed post (shown by original speed post receipt dated 20.11.2019) to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid.
D. Accused has stated that she has received the legal demand notice.
Reply of Accused dated 02.12.2019 to legal demand notice has also been filed along with the Complaint. E. No evidence has been led from the side of the Accused to rebut the presumption of service.
F. Drawer of the cheque has failed to make the payment of the said amount of money to the payee within 15 days of receipt of the said notice.
G. Thus, second, third, fourth and fifth ingredients of Section 138 Negotiable Instrument Act, 1881 stand proved against the Accused.1
Section 146 of Negotiable Instruments Act, 1881.CC No. 13807/2019 Jugal Kishore Vs. Khushali Devi Page 15 of 16
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43. As all the ingredients of Section 138 NI Act do not stand cumulatively satisfied against the Accused, therefore, Accused Khushali Devi is acquit- ted of offence punishable under Section 138 of Negotiable Instrument Act, 1881.
44. ANNOUNCED IN OPEN COURT ON 07.04.2025.
Digitally
signed by
NEHA
NEHA GOEL
GOEL Date:
2025.04.07
15:18:55
+0530
(NEHA GOEL)
JUDICIAL MAGISTRATE FIRST CLASS
(NI ACT)-02, CENTRAL DISTRICT,
TIS HAZARI COURTS/ DELHI
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