Delhi District Court
Sangeeta Rana vs Geetanjali on 6 June, 2024
Date of institution: 13.07.2017
Date of judgment: 06.06.2024
Final Decision: Acquitted
IN THE COURT OF MS. KATYAYINI SHARMA KANDWAL: MM : NI ACT-
03 (CENTRAL) : TIS HAZARI COURTS : DELHI
CT Case No.9159/2017
CNR No. DLCT02-016414-2017
SMT. SANGEETA RANA
W/O SH. RADHEY SHYAM
R/O H. NO. E-100, GALI NO.3,
HARDEV NAGAR, BURARI,
DELHI-110084 ............COMPLAINANT
V.
SMT. GEETANJALI
W/O SH. SUNIL KUMAR SONI
R/O C-48, GALI NO.2,
NEAR HANUMAN MANDIR,
HARDEV NAGAR, BURARI,
DELHI-110084 .............ACCUSED
COMPLAINT UNDER SECTION 138 NEGOTIABLE INSTRUMENTS
ACT, 1881
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION FACTUAL MATRIX
1. The present complaint has been filed by the complainant against the accused under section 138 Negotiable Instruments Act, 1881 (hereinafter "NI Act").
2. Briefly stated, the case of the complainant is that she being neighbour of accused and having good relations with her was approached by the accused to arrange a Digitally signed by KATYAYINI KATYAYINI SHARMA SHARMA KANDWAL KANDWAL Date: 2024.06.06 15:54:06 +0530 CC No. 9159/17 Sangeeta Rana v. Geetanjali Page 1 of 17 friendly loan of Rs.2,00,000/- as the accused were in dire need of money. The complainant arranged the aforesaid amount from her family members and friends and paid the same to the accused in cash, which accused promised to returnat the earliest. That the accused again approached her for a further loan of Rs.1,00,000/- which was arranged by the complainant and advanced to the accused as loan and hence, a total of Rs. 3,00,000/- were advanced as loan to the accused. That despite repeated requests when the accused did not return the loan amount, a police complaint was also instituted by the complainant against her which she did not pursue at the insistence of the accused. One cheque bearing number 445410 dated 15.05.2017 for a sum of Rs.3,00,000/- drawn on Punjab National Bank in favour of the complainant (hereinafter "cheque in question") which had been handed over by the accused when second instalment of loan was provided to her was thereafter presented by the complainant at the request of the accused. That at the time of presentation of the cheque in question, the accused had assured the complainant that the same would be honoured on presentation.
3. That the cheque in question was returned unpaid with the remarks "funds insufficient and cheque destroyed in system" vide returning memo dated 06.06.2017. That the fact of dishonour of the cheque in question was brought to the notice of the accused but she failed to make the payment of the said cheque in question to the complainant. That the complainant sent a legal notice dated 08.06.2017 to the accused through her lawyer demanding the payment as per the dishonoured cheque. That the accused failed to pay the cheque amount within the prescribed period. Hence the present complaint under section 138 of NI Act.
4. In order to support her case, the complainant was examined as CW-1 and tendered her affidavit as Ex. CW1/X into evidence wherein averments made in the complaint were reiterated. The complainant also placed reliance on the following documents:
Ex. CW 1/1 Cheque bearing no. 445410 dated
15.05.2017 for a sum of Rs.3,00,000/-
Ex. CW 1/2 Return memo dated 06.06.2017
Digitally signed
KATYAYINI by KATYAYINI
SHARMA
SHARMA KANDWAL
KANDWAL Date: 2024.06.06
15:54:20 +0530
CC No. 9159/17 Sangeeta Rana v. Geetanjali Page 2 of 17
Ex. CW 1/3 Legal notice dated 08.06.2017
Ex. CW 1/4 Postal receipt
Ex. CW 1/5 Courier receipt dated 08.06.2017
Ex. CW 1/6 Tracking report
Ex. CW 1/7 Returned envelope
Ex. CW 1/8 Police complaint dated 10.05.2017
Ex. CW1/X1 Copy of diary of the complainant
5. Upon service of summons, the accused entered an appearance and notice of accusation under Section 251, Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") was served upon the accused on 10.07.2019 to which she pleaded not guilty and claimed trial and her plea of defence was recorded. The plea of defence taken by the accused was as follows:
The present cheque in question had got misplaced/lost and was at the time blank and signed. The concerned bank was also intimated about the same on 10.04.2015. The son of the complainant and my son have friendly relations and therefore, I also know the complainant but how did the present cheque in question come in possession of the complainant, I have no idea regarding the same.
6. She further stated that she has no outstanding liability towards the complainant. Application filed under section 145(2) NI Act on behalf of accused seeking permission to cross-examine the complainant was allowed vide order dated 11.09.2019. Thereafter, the complainant as cross-examined by the accused. CW-2 Vandana Bisht who tendered her evidence by way of affidavit as Ex. CW2/A and CW-3 Sonu who tendered his evidence by way of affidavit as Ex. CW3/A were also examined on behalf of the complainant. Following documents were also brought on record by CW-2 and CW-3, in support of their testimonies:
Ex. CW2/1 Aadhar card of CW-2
(OSR)
Mark CW- Copy of bank passbook of CW-2
Digitally signed by
KATYAYINI KATYAYINI
SHARMA
SHARMA KANDWAL
KANDWAL Date: 2024.06.06
15:54:34 +0530
CC No. 9159/17 Sangeeta Rana v. Geetanjali Page 3 of 17
2/A1 (Colly) showing withdrawal of Rs. 98,000/- from
her account
Ex. CW3/1 Copy of aadhar card of witness Sonu
7. Complainant evidence was closed vide order dated 23.03.2023. Statement of accused under section 313 CrPC was recorded on 31.05.2023 wherein the incriminating evidence were put to the accused. The accused reiterated her defence. She further submitted that:
The cheque in question was signed by me and given to my son in 2015 for payment of electricity bill. Thereafter I had gone to Himachal Pradesh. When I came back to Delhi, the cheque in question was missing and my son had not used it for payment of electricity bill. Accordingly, I had duly informed the bank in 2015 itself to stop any payment against the cheque in question.
8. Matter was thereafter fixed for defence evidence. Accused in her defence examined herself as witness DW-1. DW-2, Mr. Anurag, Manager, Punjab National Bank was also examined by the accused. The accused relied on the following documents in support of her defence.
Ex. DW 1/1 Letter issued by accused to her bank
Ex. DW 2/1 (Colly) Statement of account no. 3077000100165570 of the
accused for the period of 01.04.2015 to 30.04.2015, cheque leaf status inquiry and a certificate under section 65B of the Indian Evidence Act, 1872.
Ex. DW 2/2 (Colly Letter issued by accused to her bank regarding stop five pages) payment instructions and destructions of cheques number 445391 to 445410 and cheque no. 180121 to 180170.
9. During the course of arguments, Mr. Sanjay Dalal, Ld. Counsel for complainant argued:
Digitally signedKATYAYINI by KATYAYINI SHARMA SHARMA KANDWAL KANDWAL Date: 2024.06.06 15:54:47 +0530 CC No. 9159/17 Sangeeta Rana v. Geetanjali Page 4 of 17
(i) that in view of the fact that the accused has admitted her signatures on the cheque in question, the presumptions under 118(a)/139 NI Act are attracted and the case is fit for conviction.
(ii) that complainant advanced a friendly loan of Rs. 3,00,000/- to the accused which remains unpaid till date.
(iii) that the plea of defence taken by the accused that her cheque had been misused is not tenable as no notice or complaint in this regard was lodged by the accused which is what a reasonable man would do.
(iv) that the accused has taken contradictory plea of defence wherein in her letter issued to the bank, she stated that she had lost the bag containing the cheque books while in her statement recorded under section 313 CrPC, she had stated that the cheque had been issued to her son for payment of electricity bill.
(v) that the accused has not placed on record any complaint regarding the alleged theft of her bag.
(vi) that the defence of accused that the legal demand notice was not served upon her is not tenable as the summons were duly served upon her at the address upon which the legal demand notice was also sent.
10. Per contra, Mr. Vinay Kumar, Ld. Counsel for accused argued:
(i) that the complainant has failed to prove her case beyond reasonable doubt and hence, the accused be acquitted. He argued that the accused never received legal demand notice from the complainant as it was incorrectly addressed.
(ii) that the return memo Ex. CW1/2 clearly states that the cheque in question could not be honored as it was destroyed. Hence, the consistent defence of the accused that the cheque was never issued to the complainant and the bank was instructed to destroy the said cheque receives corroboration not only from the contents of Ex. CW1/2 but also from testimony of DW-2 Bank witness.Digitally signed
KATYAYINI by KATYAYINI SHARMA SHARMA KANDWAL KANDWAL Date: 2024.06.06 15:54:59 +0530 CC No. 9159/17 Sangeeta Rana v. Geetanjali Page 5 of 17
(iii) that there are contradictions in the testimonies of CW-1, on one hand and CW-2 and CW-3, on the other hand, regarding the amount of loan advanced in front of them by the complainant and therefore, the same cannot be relied upon.
(iv) that the complainant could not even tell the date on which the cheque in question was issued to her, which is highly unlikely.
THE LAW APPLICABLE
11. Before delving into the facts of the case, it is apposite to bear in mind the law with respect to section 138, NI Act. In order to prove his case under section 138 NI Act, the complainant must prove the following facts-
(i) The accused issued a cheque on a bank account maintained by him;
(ii) The said cheque must have been issued, wholly or partly, in discharge of a 'legal debt or other liability';
(iii) The said cheque was presented before the bank within 3 months from the date of issuance and was dishonoured;
(iv) The payee issued a legal demand notice, within 30 days of receipt of information of dishonour of the cheque;
(v) The drawer failed to make payment within 15 days of receipt of the said legal demand notice It is only when all the above-mentioned ingredients are satisfied that the person who has drawn the cheque can be set to have committed an offence u/s 138 NI Act.
12. Further, the NI Act raises two important legal presumptions in favour of the holder of the cheque as soon as the execution of cheque is proved. As per Section 118(a) NI Act, it shall be presumed that every negotiable instrument was 'made, accepted, transferred, negotiated or endorsed for consideration, unless the contrary is proved'. Furthermore, as per section 139 NI Act, it shall be presumed that 'the holder of cheque, received the cheque for the discharge, in whole or in part, of any debt or other liability, unless the contrary is proved.' Digitally signed KATYAYINI by KATYAYINI SHARMA SHARMA KANDWAL KANDWAL Date: 2024.06.06 15:55:12 +0530 CC No. 9159/17 Sangeeta Rana v. Geetanjali Page 6 of 17
13. The Hon'ble Supreme Court of India in Basalingappa v. Mudibasappa, (2019) 5 SCC 418 : 2019 SCC OnLine SC 491 at page 422 held 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.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. 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 defence. 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 defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
ANALYSIS/REASONING
14. At the very outset, it is pertinent to note that in the present matter the cheque in question i.e. Ex.CW1/1 was issued on 15.05.2017 and was dishonored vide return memos Ex. CW 1/2 dated 06.06.2017 with the reason 'funds insufficient and cheque destroyed in system'. Thereafter, a legal notice (Ex.CW1/3) was sent by the complainant on 08.06.2017 to the accused. The accused in her notice framed under section 251 CrPC did not admit receipt of legal demand notice. In her statement recorded under section 313 CrPC as well as in her defence evidence, the accused stated that the legal demand notice was incorrectly addressed as she was a resident of C-49 and not C-48, as mentioned in the legal demand notice. The present matter was instituted by the complainant on 13.07.2017.
Digitally signed KATYAYINI by KATYAYINI SHARMA SHARMA KANDWAL KANDWAL Date: 2024.06.06 15:55:47 +0530 CC No. 9159/17 Sangeeta Rana v. Geetanjali Page 7 of 17
15. The case of the complainant is that the accused had taken a loan of Rs. 3,00,000/- from her which remains unpaid till date. Thereafter, the accused issued the cheque in question, which subsequently got dishonored. During the course of trial, the accused has admitted her signatures over the cheque in question and as discussed previously, the legal presumption u/s 118 (a) /139 of the NI Act are attracted to the present case. Once Section 139 of the Negotiable Instruments Act comes into picture, the Court presumes that the cheque was issued in discharge, in whole or in part, of any debt or liability. At this stage, with the help of presumption under Section 139 of the Negotiable Instruments Act, the case of the complainant stands proved.
16. The effect of the presumption has been explained in a catena of judgments, including the decisions in, Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 SCC 16 and RohitbhaiJivanlal Patel v. State of Gujarat &Anr (2019) 18 SCC
106. It has been held time and again that the said presumption is a rebuttable one and its only effect is to shift the initial burden of proof on the accused. When the presumption is raised in favor of the complainant, the burden shifts upon the accused to disprove the case of the complainant by rebutting the presumption raised in favour of the complainant. It is well settled that in order to rebut the presumption and shift back the burden of proof on the complainant, the accused is only required to raise a probable defence and he cannot be expected to discharge an unduly high standard of proof. Therefore, the standard of proof for rebutting the presumption under Section 139 NI Act is "preponderance of probabilities".
17. The accused has to make out a fairly plausible defence which is acceptable to the Court. The accused can do the same, either by leading direct evidence in his defence or by raising doubt on the material/evidence brought on record by the complainant. As held by Hon'ble Apex Court in Kumar Exports v. Sharma Carpets (2009)2 SCC 513:
"The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no Digitally signed KATYAYINI by KATYAYINI SHARMA SHARMA KANDWAL KANDWAL Date: 2024.06.06 15:55:59 +0530 CC No. 9159/17 Sangeeta Rana v. Geetanjali Page 8 of 17 consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, 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. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. 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."
(emphasis supplied)
18. To sum up the above mentioned judgment, 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. However, at the same time, it is also to be remembered that bare denial of the existence of legally enforceable debt or other liability cannot be said to be sufficient to rebut the presumption and something which is probable has to be brought on record to shift the burden back to the complainant. Keeping these basic principles in mind, this Court shall now proceed to deal with the defence taken by the accused and examine whether the accused has been able to rebut the presumption arising in favour of the complainant. Digitally signed KATYAYINI by KATYAYINI SHARMA SHARMA KANDWAL KANDWAL Date: 2024.06.06 15:56:27 +0530 CC No. 9159/17 Sangeeta Rana v. Geetanjali Page 9 of 17
19. The defence raised by the accused is two-fold. Firstly, that she did not receive the legal demand notice from the complainant and hence, the offence under section 138 NI Act is not made out against her. Secondly, that she did not take the loan in question from the complainant and the complainant has failed to prove his case beyond reasonable doubt.
LEGAL DEMAND NOTICE NOT RECEIVED
20. The accused in her notice framed under section 251 CrPC stated that she did not receive the legal demand notice. In her statement recorded under section 313 CrPC as well as in her defence evidence, the accused stated that the address mentioned on the legal demand notice was incorrect as she was a resident of C-49 and not C-48. However, perusal of record shows that summons issued to accused at the allegedly incorrect address vide order dated 22.07.2017 was received with report that the accused was found at the given address and the summons were duly served upon her. Further, the accused upon service of summons had entered appearance on 25.01.2018. She has also not led any independent evidence to prove that she was not residing at the address mentioned in the memo of parties. In view of the fact that no such independent evidence was led and the summons were also duly served upon the accused herself at the address upon which the legal demand notice was sent, this defence of accused does not inspire confidence of the court. Therefore, it emerges that the legal demand notice has been properly addressed and posted by the complainant, as also proved by the postal receipts, Therefore the same is presumed to have been delivered under section 114 of the Indian Evidence Act, 1872 and Section 27 of General Clauses Act. Further, the accused cannot be allowed to take benefit of this defence at the stage of final arguments when even the summoning order was not challenged by her at the intitial stage on the ground that the ingredients of offence under section 138 of the NI Act are not made out. Moreover, Hon'ble Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed (2007) 6 SCC 555 held as follows:
Digitally signedKATYAYINI by KATYAYINI SHARMA SHARMA KANDWAL KANDWAL Date: 2024.06.06 15:56:37 +0530 CC No. 9159/17 Sangeeta Rana v. Geetanjali Page 10 of 17 "A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114."
21. Accordingly, this Court is of the view that legal demand notice was duly served upon the accused and hence, her defence that it was not served upon him is hereby rejected.
LOAN TRANSACTION NOT PROVEN
22. The second defence of the accused is that she has rebutted the presumption in favour of the complainant while the complainant has failed to prove the loan in question beyond reasonable doubt which was the burden of proof upon her. Ld. Counsel for accused argued that from perusal of the return memo Ex. CW1/2, it is clear that the cheque in question has been dishonored for the reason "funds insufficient and cheque destroyed in system". It was argued that the accused has sufficiently proven her defence by examining herself as DW-1 and DW-2 bank witness and has shown that in 2015 itself, she had issued instructions to her bank to destroy the cheque in question after which it was destroyed by the bank. Documents brought on record by DW-2 were relied upon to show that that the cheque in question could not have been issued by the accused as she had already issued instructions to destroy the same at her bank after it was lost/misplaced. The contradictions in the testimonies of CW-1, CW-2 and CW-3 were stated to be sufficient to disbelieve the version of the complainant.
23. However, it has been argued on behalf of the complainant that even if the directions for destruction of cheque have been issued, it cannot be ruled out that the accused issued the cheque to the complainant with a malafide intention and being fully aware of the fact that the cheque would not be honored upon presentation. Reliance was placed on the cross-examination of DW-2 wherein he Digitally signed KATYAYINI by KATYAYINI SHARMA SHARMA KANDWAL KANDWAL Date: 2024.06.06 15:56:50 +0530 CC No. 9159/17 Sangeeta Rana v. Geetanjali Page 11 of 17 stated that the cheques are not destroyed physically by the bank after instructions for destroying the same are received from the bank customers. Further reliance was placed on the testimonies of complainant, CW-1 and CW-2 to show the source of funds as well as the loan transaction stand duly proved.
24. Perusal of record shows that the complainant in her complaint has stated that loan of Rs. 3,00,000/- was given to the accused in two installments of Rs. 2,00,000/- and Rs. 1,00,000/-. This was reiterated by the complainant when she was cross- examined as CW-1 wherein she stated that installment of Rs. 2,00,000/- was advanced by her to the accused at her residence in the presence of her family members while Rs. 1,00,000/- was advanced by her to the accused at her residence in the presence of her milkman Sonu.
25. CW-2 Ms. Vandana Bisht, who is a relative of complainant, was examined to prove the loan transaction of Rs. 1,00,000/- wherein CW-2 stated that she had withdrawn Rs. 98,000/- from her bank account which was given by her to the complainant to be advanced as loan to the accused. She further stated that the loan of Rs. 1,00,000/- was advanced by the complainant to the accused in front of her. She also produced her bank account statement Mark. CW2/A1 (Colly.) to prove corresponding withdrawals of Rs. 49,000/- each.
26. CW-3, Mr. Sonu was examined on behalf of complainant who testified that the complainant had borrowed Rs. 50,000/- from him and that she advanced loan of Rs. 2,00,000/- to the accused in front of him. However, in his cross-examination, he stated that he does not know anything about Rs. 1,50,000/- as stated in his affidavit Ex. CW3/A and that the loan of Rs. 2,00,000/- was not advanced to the accused in front of him.
27. Accused examined herself as DW-1 wherein she stated that she never took any loan from the complainant and had never issued the cheque in question to her. One of the objections raised by Ld. Counsel for complainant during examination- in-chief of the accused was qua mode of proof of Ex. DW 1/1, which is a letter written by accused to her bank, brought on record by the accused to prove that the cheque in question was destroyed by her bank on 10.04.2015 upon her instructions. Ex. DW1/1 bears the stamp of the concerned bank and sign of the Digitally signed KATYAYINI by KATYAYINI SHARMA SHARMA KANDWAL KANDWAL Date: 2024.06.06 15:57:04 +0530 CC No. 9159/17 Sangeeta Rana v. Geetanjali Page 12 of 17 concerned bank official. This court is of the view that the document has been sufficiently proven by the accused as the testimony of DW-2 which corroborates the version of accused that the cheque was destroyed on 10.04.2015, clearly proves this fact. Hence, document Ex. DW1/1 shall now be read in evidence.
28. After perusing the entire record and hearing the arguments of the parties, this Court is of the opinion that the story of the complainant does not inspire the confidence for the following reasons:
(i) The complainant has stated that she borrowed money from her family members namely CW-2 Vandana Bisht and her acquaintance namely CW-3 Mr. Sonu, to advance the loan in question to the accused. With respect to relations between the parties, the complainant in her cross-
examination has admitted that:
i. she knows the accused last 15 years, ii. she and her family do not visit the house of accused, and iii. her son is a friend of son of accused.
Therefore, it is clear that the complainant knows the accused in limited capacity as a friend of her son. It is natural that a person would only borrow money from third parties to advance it as loan to only his/her close family members or friends. The complainant has failed to prove any such relation between the parties wherein no averment regarding close relations between them has been made in the complaint and neither has any such close proximate relation established by the cross- examination of the complainant. It is not believable that complainant would borrow money from her relatives (her sister-in-law examined as CW-2) and acquaintances (her milkman examined as CW-3) to advance loan to a person with whom she does not have any close proximate relations.
(ii) It is established from the testimony of bank witness DW-2 that instructions for destruction of the cheque in question were provided to the bank by the accused, which further strengthens the version of accused that the cheque in question was lost/misplaced. DW-2 in his Digitally signed KATYAYINI by KATYAYINI SHARMA SHARMA KANDWAL KANDWAL Date: 2024.06.06 15:57:18 +0530 CC No. 9159/17 Sangeeta Rana v. Geetanjali Page 13 of 17 statement has stated that at point-A in Ex. DW 2/1 (Colly), the charges have been levied on the accused for cancellation of the cheque book(s) so issued. Even for the sake of argument if it is considered that no police complaint was lodged by the accused, a reasonable man who has issued stop payment/destruction of cheque instruction to his/her bank would legitimately expect that even if an attempt is made by anyone to misuse the cheque, the same would not result in any loss as the bank would never clear the cheque upon presentation and hence, may not feel the need of lodging a police complaint. Similar reasoning has also been provided by accused in her letter Ex. DW 2/2 wherein it is stated that the instructions for stop payment of the cheques are being given to avoid any possibility of misuse. Furthermore, the instructions for destruction of cheque in question were given by accused to her bank on 10.04.2015 which was almost 2 years prior to date of presentation of cheque in question and hence, even this step cannot, under any circumstances, be considered an afterthought. Even though different statements have been made by the accused at various stages of trial regarding how the cheques were misplaced/lost, however, she has remained consistent about the fact that the cheque had been lost/misplaced by her and hence, her contradictions, as pointed out by Ld. Counsel for complainant cannot be considered to be material enough to disprove her defence. It is a settled position of law that minor contradictions/improvements cannot be considered sufficient to discard the entire testimony of the witness.
(iii) There are inconsistencies in the testimonies of CW-1, on one hand and CW-2 and CW-3, on the other hand. CW-1, during her cross-
examination has stated that loan of Rs. 2,00,000/- was advanced by her to the accused at her residence in the presence of her family members and loan of Rs. 1,00,000/- was advanced by her to the accused at her residence in the presence of her milkman Sonu. On the contrary, CW-2 who is a family member of the complainant has stated that Rs. 1,00,000/- was advanced by complainant as loan in front of her. In this Digitally signed KATYAYINI by KATYAYINI SHARMA SHARMA KANDWAL KANDWAL Date: 2024.06.06 15:57:30 +0530 CC No. 9159/17 Sangeeta Rana v. Geetanjali Page 14 of 17 regard, she has placed on record her statement of account Mark CW2- A1 (Colly) to show two withdrawals of Rs. 48,000/- each. However, mere withdrawal is not sufficient to prove that the given sum was advanced to the accused. Even the diary of the complainant Ex. CW1/X1 (OSR) is a self-serving document which does not support the case of the complainant as the document which nowhere bears signatures of the accused, has also not been admitted by the accused and therefore, remains unproven. Even for the sake of argument if it is considered that the complainant inadvertently confused the loan amounts, there are contradictions in the testimony of CW-3 wherein in his evidence by way of affidavit Ex. CW 3/A, he has stated that loan of Rs. 2,00,000/- was advanced in front of him by the complainant to the accused, in his cross-examination, he has clearly stated that no loan was advanced by the complainant to the accused in front of her. This is also contradictory to the statement of CW-1 who has stated that CW-3 was present when loan was advanced to the accused. Therefore, it cannot be said that the testimonies of CW-2 and CW-3 have survived the test of cross-examination.
(iv) As per the complainant, the cheque in question had been handed over by the accused to her in 2015 when the second loan of Rs. 1,00,000/- was advanced by her. The cheque in question was presented in 2017. Though the complainant has stated that for two years, she repeatedly demanded the money from the accused but to no avail, it is not believable that the complainant did not even think of issuing a written notice/letter to the accused demanding the money before proceeding to lodge police complaint Ex. CW1/8 dated 10.04.2017 and presenting the cheque in question for enchashment mere 5 days after lodging of such complaint. No reasonable explanation as to why the cheque was not presented on a prior date has been provided by the complainant. Ld. Counsel for complainant has relied upon the judgment M/s Kalamani Tex and Anr. v. P. Balasubramaniam (2021) 5 SCC 283, Bir Singh v. Mukesh Digitally signed by KATYAYINI KATYAYINI SHARMA SHARMA KANDWAL KANDWAL Date: 2024.06.06 15:57:44 +0530 CC No. 9159/17 Sangeeta Rana v. Geetanjali Page 15 of 17 Kumar (2019) 4 SCC 197 and Rangappa v. Sri Mohan (2010) 11 SCC 441 in support of his arguments. The court is in agreement with the ratio of the aforementioned cases wherein it has been clearly held that section 139 of the NI Act raises a rebuttable presumption in favour of the complainant and the onus is on the drawer of the cheque to rebut it by adducing cogent evidence to the contrary. For the aforementioned reasons, this Court is of the view that the accused has successfully rebutted the burden after which reverse onus lied on the complainant to prove her case beyond reasonable doubt, which the complainant has failed to do.
29. It is a settled position of law that the case of the complainant should stand on its own legs. It cannot take advantage of the weakness of the defence, nor can the court, on its own make out a new case for the prosecution and convict the accused on that basis. If defence version is incorrect, it does not mean that prosecution version is necessarily correct. It has been held by the Hon'ble Supreme Court in Rahul Builders v. Arihant Fertilizers and Chemicals and Another (2008) 2 SCC 321, the NI Act envisages application of the penal provisions which needs to be construed strictly. Therefore, even if two views in the matter are possible, the Court should lean in favour of the view which is beneficial to the accused. This is more so, when such a view will also advance the legislative intent, behind enactment of this criminal liability.
30. It is important to underscore the established canon of criminal law that in order to pass a conviction in a criminal case, the accused "must be" guilty and not merely "may be" guilty. The mental distance between "may be" guilty to "must be" guilty is a long one and must be travel not on surmises and conjectures, but by cogent evidence. In this case, after the accused successfully rebutted the presumption of consideration by raising a doubt on the very factum of the transaction of loan. The accused has clearly presented a case which is superior in way. As per the settled law, this is all that what is required, as preponderance of probabilities is not a rigorous standard of proof, but only so much evidence as makes the court lean in Digitally signed KATYAYINI by KATYAYINI SHARMA SHARMA KANDWAL KANDWAL Date: 2024.06.06 15:57:55 +0530 CC No. 9159/17 Sangeeta Rana v. Geetanjali Page 16 of 17 favour of one side and not the other. Consequently, the benefit of doubt must go to the accused. The material on record does not suggest that the accused "must be"
guilty whichever way one looks at it.
31. Accordingly, this Court holds that the complainant has failed to prove her case. The accused has been able to rebut presumption under Section 118 and 139 NI Act arising in favour of the complainant.
32. In light of foregoing reasons, this Court accordingly returns a finding of not guilty against the accused Geetanjali. The accused is hereby acquitted for the offence as punishable under Section 138 NI Act.
33. A copy of this order be placed on the official website of the District Courts.
KATYAYINI Digitally
KATYAYINI
signed by
SHARMA SHARMA KANDWAL
Date: 2024.06.06
KANDWAL 15:58:06 +0530
ANNOUNCED IN OPEN COURT KATYAYINI SHARMA KANDWAL
ON 06.06.2024 MM-03(NI ACT), CENTRAL
THC, DELHI/06.06.2024
(THIS JUDGMENT CONTAINS 17 PAGES AND EACH PAGE IS SIGNED BY ME) CC No. 9159/17 Sangeeta Rana v. Geetanjali Page 17 of 17