Delhi District Court
Counsel For The Accused Has Relied Upon ... vs Dattatraya on 8 September, 2021
IN THE COURT OF METROPOLITAN MAGISTRATE (NI-03),
CENTRAL, TIS HAZARI COURTS, DELHI
Presided over by: Ms. Isha Singh
Case no. : 528496/2016
Unique Case ID no. : DLCT020085662015
In the matter of :
Ramakant Soni
Son of Sh. Kishan Lal Soni,
R/o A-176, Gali no. 3,
Tomar Colony, Burari,
Delhi - 110084 ............ COMPLAINANT
Versus
Sushila
W/O Sh. Hari Lal
R/o H. No.2, Gali no.12,
D-Block, Tomar Colony,
Burari, Delhi. ............ACCUSED
1. Name of the Complainant : Ramakant Soni
2. Name of the Accused : Sushila
3. Offence complained of or proved : Section 138, Negotiable Instruments
Act, 1881
4. Plea of the Accused : Not Guilty
5. Date of Filing : 31.10.2015
6. Date of Reserving Order : 01.09.2021
7. Date of Pronouncement : 08.09.2021
8. Final Order : ACQUITTAL
BRIEF STATEMENT OF REASONS OF DECISION
FACTUAL MATRIX
CC No. 528496/16 Ramakant Soni v. Sushila Page 1 of 14
1. The present complaint has been filed by Mr. Ramakant Soni (hereinafter
"complainant") against Ms. Sushila (hereinafter "accused") under Section 138 of the
Negotiable Instruments Act, 1881 (hereinafter "NI Act").
2. The substance of allegations, as contained in the complaint, are as follows:
(a) That the accused had borrowed a friendly loan of Rs.60,000/- from the
complainant at her urgent requirement on the basis of having good terms with the
father of the complainant. Thereupon, at the request of the accused and upon
assurance given by the father of the complainant, the complainant paid a sum of
Rs.60,000/- to the accused in the month of January, 2015 to be repaid within 6
months.
(b) It is further the case of the complainant that after the expiry of six months from
the disbursement of friendly loan, i.e. in the month of July, 2015, when the
complainant approached the accused for repayment of the loan amount, the
accused issued cheque bearing no.525497 dated 26.08.2015 in the sum of
Rs.60,000/- drawn on Punjab National Bank, Burari, Delhi in the name of the
complainant with an assurance that the same shall be encashed on its presentation.
(c) The aforesaid cheque bearing no. 525497 was presented by the complainant for
payment through his banker -Union Bank, 700, main bus stand, Conductor
Colony, Burari, Delhi-110084 for its encashment, however the same was returned
as dishonoured vide cheque returning memo dated 08.09.2015 with the remarks
"payment stopped by drawer". Thereafter, the complainant sent a legal notice
dated 17.09.2015 by way of registered AD and speed post. It is the case of the
complainant that despite service/deemed service of legal notice dated 17.09.2015,
the accused failed to repay the cheque amount within the stipulated period and
hence, the present complaint was filed on 31.10.2015 under section 138 of the NI
Act.
APPEARANCE OF THE ACCUSED
3. Pre-summoning evidence was led by the complainant and upon finding a prima facie
case against the accused, he was summoned to face trial vide order dated 18.01.2016,
and after his appearance, notice of accusation under Sec. 251, The Code of Criminal
Procedure, 1973 (hereinafter "CrPC") was served upon him on 11.01.2017 to which
he pleaded not guilty and claimed trial. After perusal of the cheque, the accused stated
CC No. 528496/16 Ramakant Soni v. Sushila Page 2 of 14
that the cheque in question was issued to the father of the complainant in the course of
committee business run by the father of the complainant about six years ago. The
accused denied having filled particulars of the cheque, however admitted her
signatures. She further denied the receipt of legal notice and denied having any
outstanding liability towards the complainant. At the time of framing of notice under
Sec. 251 CrPC, the accused took the following plea of defence:
"The father of the complainant was running a committee six year ago.
I had handed over two cheques to the father of the complainant for the
said purpose. When the committee ended, I requested the complainant
to return the cheque to me but he did not return the cheque. He kept
on delaying on one pretext or the another. When he did not handed
over cheque to me. I went to the bank and stopped the payment for the
cheques in question. I had handed over the cheques in question to the
father of the complainant. I have no business or concern with the
complainant."
4. Considering the plea of defence raised and in view of the application filed by the
accused under Sec.145(2), NI Act, accused was allowed the opportunity under Sec.
145(2) NI Act, to cross-examine the complainant vide order dated 01.12.2017.
5. During the course of trial, the complainant led the following oral and documentary
evidence in order to prove his case beyond reasonable doubt:
Oral Evidence
CW1 Ramakant Soni (complainant)
Documentary Evidence
Ex. CW 1/1 Cheque in question bearing no.
525497 dated 26.08.2015 in the sum
of Rs.60,000/-
Ex. CW 1/2 Return Memo dated 08.09.2015
Ex. CW 1/3 Legal Demand Notice dated
17.09.2015
Ex. CW 1/4 Postal Receipts for legal demand
notice
CC No. 528496/16 Ramakant Soni v. Sushila Page 3 of 14
Once the aforesaid evidence was led, thereafter cross-examination was closed vide a
separate statement of the complainant recorded to that effect.
STATEMENT OF THE ACCUSED
6. After the completion of complainant evidence and before the start of defence
evidence, in order to enable the accused to personally explain the circumstances
appearing in evidence against her, her statement under Sec. 313, CrPC was recorded
without oath. In her statement under Sec. 313 CrPC, the accused denied the
complainant's version and reiterated herself by saying that she had issued the cheque
in question to the father of the complainant for the purposes of committee business
run by the father himself and during that period of time, the accused had handed over
the cheques to the father of the complainant which the latter never returned. Due to
failure of the father of the complainant to return the cheque in question, the accused
had approached her bank and instructed them to not make any payment to the father
of the complainant. The accused also stated that there is no transaction between her
and the complainant and the complainant has misused the cheque in question because
there is no legally enforceable liability against the accused. In her statement under
Sec. 313 CrPC, the accused admitted that the cheque was issued by her however the
same was done for the purposes of committee business and towards security but not
for repayment of any friendly loan as alleged in the complaint. As regards the legal
demand notice, she denied the receipt thereof.
7. Pursuant thereto, the accused led the following oral and documentary evidence in his
defence.
Oral Evidence
DW1 Mr. Jai Bhagwan Choker, Sr. Manager, Punjab
National Bank, Burari.
Documentary Evidence
DW1/A Copy of the "stop payment" instruction as regards
cheque bearing no. 525492 in the sum of
Rs.65,000/- in the name of Soni Jewellers.
DW1/B Copy of the "stop payment" instruction as regards
cheque bearing no. 525497 (cheque in question) in
the sum of Rs.60,000/- in the name of Soni
Jewellers.
DW1/C Copy of the account ledger inquiry for account
CC No. 528496/16 Ramakant Soni v. Sushila Page 4 of 14
bearing no.1051000100164050 registered in the
name of Smt. Sushila w/o Har Lal for the
transaction date 27.12.2011.
DW1/D Certificate u/s 65 B of Indian Evidence Act in
respect of print out of the statement of account for
account bearing no.1051000100164050 registered
in the name of Smt. Sushila w/o Har Lal for the
transaction date 27.12.2011.
8. Thereafter, final arguments were heard in the present case, I have heard the learned
counsels on both sides and given my thoughtful consideration to the material
appearing on record.
ARGUMENTS
9. It has been argued by the Ld. Counsel for the complainant that all ingredients of Sec.
138 NI Act, have been fulfilled in the present case and that the complainant has duly
proved his case. It was argued that accused admitted her signatures on the cheque. He
argued that in a case where the accused has admitted her signature on the cheque, there
is no room of doubt that the accused has, by way of issuing the cheque in question,
very well admitted her liability. Further, the counsel argued that in view of the defence
taken by the accused, it becomes clear that the accused has knowingly and
intentionally issued the cheque in question in favour of the complainant with the
knowledge that the same shall not be encashed from the banker, when "stop payment"
instructions were already issued. He also argued that the accused intentionally delayed
payment beyond 6 months and even after giving of the cheque in question, the accused
deliberately issued instructions for stopping payment of the cheques in question. It was
argued that accused failed to raise the probable defence to disprove the case of
complainant and to rebut the presumptions under Section 118 and Section 139 NI Act.
As such, it is prayed that the accused be punished for the said offence.
10. Per contra, Ld. Counsel for the accused has argued that the complainant has failed to
establish his case beyond reasonable doubt. The Counsel for the accused has argued
that the complainant misused the cheques given by the accused to the father of the
complainant during the time of committee business in the year 2011. Ld. Counsel
further argued that the accused has brought sufficient evidence on record to prove that
CC No. 528496/16 Ramakant Soni v. Sushila Page 5 of 14
instructions for stop payment in regard to the cheque in question were issued and duly
accepted in the year 2011. In that situation, Ld. Counsel has argued that the cheque in
question is actually of the year 2011, and the same is being misused at the hands of the
complainant by way of filing of the present complaint. In addition to this, the counsel
for the accused has argued that the case of the complainant suffers from infirmities and
inconsistencies to the extent that the factum of disbursement of the loan has not been
sufficiently proved. Further, the Ld. Counsel for the accused has argued rebutting the
presumptions raised against the accused. In order to buttress his submissions, ld.
Counsel for the accused has relied upon Krishna Janardhan Bhat versus Dattatraya
G. Hedge (AIR 2008 SCW 788); Devender Kumar v. Khem Chand Crl. Rev. P.
679/2012 dated 06.10.2015 (Delhi HC); Zeeshan Khan v. Basruddin Malk Ct. Case
no. 14.02.2020 dated 14.02.2020 (Delhi District Court). As such, it is prayed that the
accused be acquitted.
INGREDIENTS OF THE OFFENCE
11. Before dwelling into the facts of the present case, it would be apposite to discuss the
legal standards required to be met by both sides. In order to establish the offence under
Section 138 of NI Act, the prosecution must fulfil all the essential ingredients of the
offence. Perusal of the bare provision reveals the following necessary ingredients of
the offence: -
First Ingredient: The cheque was drawn by a person on an account maintained
by him for payment of money and the same is presented for payment within a
period of 3 months from the date on which it is drawn or within the period of its
validity;
Second Ingredient: The cheque was drawn by the drawer for discharge of any
legally enforceable debt or other liability;
Third Ingredient: The cheque was returned unpaid by the bank due to either
insufficiency of funds in the account to honour the cheque or that it exceeds the
amount arranged to be paid from that account on an agreement made with that
bank;
Fourth Ingredient: A demand of the said amount has been made by the payee or
holder in due course of the cheque by a notice in writing given to the drawer
CC No. 528496/16 Ramakant Soni v. Sushila Page 6 of 14
within thirty days of the receipt of information of the dishonour of cheque from the
bank;
Fifth Ingredient: The drawer fails to make payment of the said amount of money
within fifteen days from the date of receipt of notice.
12. The accused can only be held guilty of the offence under Section 138 NI Act if the
above-mentioned ingredients are proved by the complainant co-extensively.
Additionally, the conditions stipulated under Section 142 NI Act have to be fulfilled.
13. Notably, the first, third, fourth and fifth ingredient have been duly proved without
there being any real controversy regarding the same.
(a) The complainant has proved the original cheque, Ex. CW1/1, which the accused
has not disputed as being drawn on the account of the accused. It is not disputed
that the cheque in question was presented within its validity period.
(b) The cheque in question was returned unpaid vide return memos dated 08.09.2015
which is Ex. CW1/2 due to the reason, "Payment stopped by drawer".
(c) The complainant has proved on record the legal demand notice vide Ex. CW1/3
dated 17.09.2015, postal receipts vide Ex. CW1/4 to prove the fact of sending legal
notice. However, the accused has asserted in the notice framed under section 251
and statement under S.313 CrPC that she did not receive the legal notice. This
assertion, again, cannot help the accused in escaping liability under section 138 NI
Act, especially keeping in mind that the summons issued by the court were served
on the accused at the same address as mentioned in the legal notice. It has been
settled by the Hon'ble Apex Court in the judgement reported as, C.C. Alavi Haji v.
Palapetty Muhammed, (2007) 6 SCC 555 that an accused who claims that he did
not receive the legal notice, can, within 15 days of receipt of summons from the
court, make payment of the cheque amount, and an accused who does not make
such payment cannot 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 General Clauses Act and Section 114 of the Evidence Act.
14. On analysis of the facts and legal position stated above, the Court finds the parties to
be at variance on the primary issue i.e. whether the cheque in question were issued in
CC No. 528496/16 Ramakant Soni v. Sushila Page 7 of 14
favour of the complainant in order to discharge the legal liability of the accused which
forms the second ingredient in the Section 138, NI Act.
15. As regards the second ingredient, it has to be proved that the cheques in question were
drawn by the drawer for discharging a legally enforceable debt. In the present case, the
signatures of the accused on the cheques in question are not denied. Under the NI Act,
once the accused admits his signatures on the cheque, certain presumptions are drawn,
which result in shifting of onus. Section 118(a) of the NI Act lays down the
presumption that every negotiable instrument was made or drawn for consideration.
The second presumption is contained under Section 139 of NI Act. The provision lays
down the presumption that the holder of the cheque received it for the discharge, in
whole or part, of any debt or other liability. The combined effect of these two
provisions is a presumption that the cheque was drawn for consideration and given by
the accused for the discharge of debt or other liability. Both the sections use the word
"shall", which makes raising the presumption imperative for the court, once the
foundational facts required to raise the presumption are proved {Reliance is placed
upon Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16}.
16. Further, it has been held by a three-judge bench of the Hon'ble Apex Court in the case
of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption contemplated
under Section 139 of NI Act includes the presumption of existence of a legally
enforceable debt. Once the presumption is raised, it is for the accused to rebut the
same by establishing a probable defence. The principles pertaining to the
presumptions and the onus of proof were recently summarized by the Hon'ble Apex
Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 as under:
"25. We having noticed the ratio laid down by this Court in the above cases on
Section 118(a) and 139, we now summarise the principles enumerated by this
Court in the following manner:
25.1. Once the execution of cheque is admitted Section 139 of theAct
mandates a presumption that the cheque was for the discharge of any debt or
other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the
onus is on the accused to raise probable defence. The standard of proof for
rebutting the presumption is that of preponderance of probabilities.
CC No. 528496/16 Ramakant Soni v. Sushila Page 8 of 14
25.3. To rebut the presumption, it is open for the accused to rely on evidence
led by him or the 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.
25.4. 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.
25.5. It is not necessary for the accused to come in the witness box to support
his defence."
17. The presumptions raised under Section 118(b) and Section 139 are rebuttable
presumptions. A reverse onus is cast on the accused, who has to establish a probable
defence on the standard of preponderance of probabilities to prove that either there
was no legally enforceable debt or other liability. In the present case, ld. counsel for
the accused has raised many defences to rebut the presumption, which are discussed
hereinbelow:
THAT INSTRUCTION FOR "STOPPING PAYMENT" FOR THE CHEQUE IN
QUESTION DATES BACK TO THE YEAR 2011
18. Ld. Counsel for the accused has argued that, there was no outstanding liability of the
accused towards the complainant. To prove this argument, accused has examined DW-
1, Mr. Jai Bhagwaan Chokker, Senior Manager, Punjab National Bank, Burari, Delhi,
who has brought on record, the details pertaining to the account bearing number
1051000100164050 of holder Smt. Sushila W/O Sh. Harlal regarding cheque nos.
525492 and 525497. Ex. DW1/A is the copy of "stop payment" instruction for cheque
bearing no. 525492 dated 07.03.2011 in the sum of Rs.65,000/- drawn in the name of
payee -Soni Jewellers, which was accepted by the bank on 27.12.2011 at 12:45pm.
Similarly, Ex. DW1/B is the copy of "stop payment" instruction for cheque bearing
no. 525497 (cheque in question) dated 07.03.2011 in the sum of Rs.60,000/- drawn in
the name of payee -Soni Jewellers, which was accepted by the bank on 27.12.2011 at
12:46pm. Ex. DW1/C is the copy of the account ledger inquiry for the account bearing
number 1051000100164050 of holder Smt. Sushila W/O Sh. Harlal for the transaction
date 27.12.2011, which shows deduction of Rs.60 twice, towards "stop payment
CC No. 528496/16 Ramakant Soni v. Sushila Page 9 of 14
charges" on the same date. Ex. DW1/D is the certificate under Sec.65B, Indian
Evidence Act in respect of the print out of the statement of account bearing number
1051000100164050 of holder Smt. Sushila W/O Sh. Harlal for the transaction date
27.12.2011.
19. The accused has consistently, during the span of the case, raised the defence that two
blank signed cheques (one being the cheque in question and one another) were asked
for, by the father of the complainant in the year 2011 for security purposes in the
committee business run by the father of the complainant, of which the accused was
also a member. It is further the case of the accused that despite completion of
committee business, when the father of the complainant did not return the blank
signed cheques to the accused, she issued instructions to the bank for stopping
payment as regards the two signed cheques that were in the possession of the father of
the complainant and accordingly, the payment was stopped. Out of the two signed
cheques for which payment was stopped, one is the cheque in question bearing no.
525497 for which copy of "stop payment" instruction is exhibited as Ex. DW-1/B.
20. Ld. Counsel further argued that Ex. DW-1/B clearly states that the cheque in question
bearing number 525497 in the sum of Rs.60,000/- is of the year 2011 for which the
payment already stood stopped on 27.12.2011, however, despite the same the
complainant misused the cheque in question in the year 2015.
21. With the evidence on record, it becomes clear that the payment in respect of cheque in
question was stopped by the accused via issuing instructions to the bank, in the year
2011 which were accepted by the bank on 27.12.2011. So far as factum of existence of
the committee run by the father of the complainant is concerned, same stands admitted
by the complainant in his cross-examination. The complainant in his cross-
examination has admitted that his father Sh. Krishan Lal Soni used to run a committee
in the year 2011, of which the accused was also a member. This admission of the
factum of the committee must not be viewed in isolation and must be seen alongside
the fact that the complainant has furnished nothing more than the assertions in the
complaint, towards proof in support of the loan transaction between himself and the
accused. Even otherwise, if the version of the accused is accepted to be true, then the
course adopted by the accused for issuing instructions for "stop payment" as regards
the blank signed cheque in question allegedly in possession of the father of the
CC No. 528496/16 Ramakant Soni v. Sushila Page 10 of 14
complainant who refused to part with it, is a reasonable and prudent decision in the
given set of circumstances.
NO PROOF OF LOAN TRANSACTION HAS BEEN FURNISHED
22. The accused has vehemently denied entering into any kind of loan transaction with the
complainant, as has been alleged in the complaint. For proving the same, the accused
has laboured hard to pick holes in the case of the complainant. Ld. Counsel for the
accused has argued that neither any date of disbursement of loan has been mentioned
nor has any document been produced in proof thereof. Ld. Counsel for the accused has
also relied upon the decision in the case of Devender Kumar v. Khem Chand Crl.
Rev. P. 679/2012 dated 06.10.2015 (Delhi HC) to contend that despite the
complainant being an income Tax Assessee, he has not produced his ITR for the
relevant period evidencing the disbursement of loan, which should lead to drawing of
adverse inference against him.
23. The law is well-settled in the case of K. John v. Tom Vargese: JT 2007 (13) SC 222
wherein the Apex Court has observed as under:-
"10.... The High Court was entitled to take notice of the conduct of
the parties. It has been found by the High Court as of act that the
complainant did not approach the court with clean hands. His conduct
was not that of a prudent man. Why no instrument was executed
although a huge sum of money was allegedly paid to the respondent
was a relevant question which could be posed in the matter. It was open
to the High Court to draw its own conclusion therein. Not only no
document had been executed, even no interest had been charged. It
would be absurd to form an opinion that despite knowing that the
respondent even was not in a position to discharge his burden to pay
instalments in respect to the prized amount, an advance would be made
to him and that too even after institution of three civil suits. The amount
advanced even did not carry any interest. If in a situation of this nature,
the High Court has arrived at a finding that the respondent has
discharged his burden of a proof cast on him under Section s139 of the
Act, no exception thereto can be taken."
CC No. 528496/16 Ramakant Soni v. Sushila Page 11 of 14
24. In the given facts and circumstances, this court is in agreement with the counsel for
the accused as the complainant has failed to furnish details of the loan transaction
between himself and the accused. Even the complainant, in his examination-in-chief,
has admitted that neither has he mentioned any date on which the loan was disbursed
to the accused nor has he executed any receipt to the accused at the time of
disbursement of loan, against the loan amount disbursed to her. It is the case of the
complainant that no document was executed for the loan transaction as the accused
was in his family relations with the complainant. It is also the case of the complainant
in his complaint, that loan was disbursed to the accused based upon the good
relationship between the father of the complainant and the accused and upon assurance
of the father of the complainant. Despite the same, the complainant has chosen not the
examine his father in relation to the fact of disbursement of loan, nor has any third
party witness also been examined before whom either the loan was paid or the cheques
were issued by the accused. In the case at hand, the complainant's story is not worthy
of credence. Upon being specifically questioned, nothing has been brought on record
by the complainant to show that a loan of Rs.60,000/- was actually given by him to the
accused.
25. As such, the accused has been able to prove the version of the complainant to be
doubtful by bringing out the inconsistencies in the evidence of the complainant.
26. At this stage, it is imperative to refer to the judgement of the Hon'ble Supreme Court
in the case of Kumar Exports v. Sharma Carpets (2009) 2 SCC 513, wherein the
Apex Court has held that in a trial under Sec. 138, NI Act, a presumption will have to
be made that every negotiable instrument was made or drawn for consideration and
that it was executed for discharge of debt or liability once the execution of
thenegotiable instrument is either proved or admitted. As soon as the complainant
discharges the burden to prove that the instrument, say a note was executed by the
accused, the rules of presumptions under Sections 118 and 139 of the Act help him
shift the burden on the accused. The presumptions will live, exist and survive and shall
end only when the contrary is proved by the accused, that is, the cheque was not
issued for consideration and discharge of any debt or liability. A presumption is not in
itself evidence but only makes a prima facie case for a party for whose benefit it
exists. The Apex Court further held that in a trial under Section 138 of the Act the
CC No. 528496/16 Ramakant Soni v. Sushila Page 12 of 14
accused 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
consideration and debt existed. To rebut the statutory presumption 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 by leading direct
evidence because the existence of negative evidence is entirely possible nor
contemplated. At the same time it is clear that bare denial of the passing of the
consideration and existence of that, 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 presumption 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. Apart from adducing direct evidence to
prove that the note in question was not supported by consideration or that he had not
incurred any debt or liability, the accused may also rely upon circumstantial evidence
and if the circumstances so relied upon are compelling, the burden may likewise shift
again on the complainant.
27. In view of the aforesaid discussion, this Court is of the considered view that the
accused has been able to raise a probable defence in order to rebut the statutory
presumption against him under Sec. 118 and Sec.139 of the NI Act, both by adducing
evidence in her support as regards "STOP PAYMENT" instructions issued for the
cheque in question in the year 2011 and also, by pointing out the inconsistencies in the
case of the complainant. This Court has no hesitation to hold that the case of the
complainant is unworthy of credence and does not inspire the confidence of the court.
28. The contention of the complainant that, the accused fraudulently and dishonestly
issued the cheque in question for discharging the loan liability towards the
complainant after knowing fully well that cheque won't be honoured as payment
already stood stopped for the cheque in question back in the year 2011, does not
CC No. 528496/16 Ramakant Soni v. Sushila Page 13 of 14
inspire confidence of the court when even otherwise, the complainant has failed to
bring on record, oral or documentary evidence and proof in support of disbursement of
loan of Rs.60,000/- to the accused.
29. Loopholes in the defence of the accused would have assumed relevance had the
complainant also brought credible evidence on record or if the complainant
sufficiently challenged that evidence brought on record by the accused. It is no longer
res integra that the case of the complainant must stand on its own legs and cannot take
advantage of the infirmities in the case of the accused.
CONCLUSION
30. To recapitulate the above discussion, the accused has been successful in establishing a
probable defence on a standard of preponderance of probabilities to rebut the
presumption under Section 118 and Section 139 of NI Act by adducing evidence in
her support as regards "STOP PAYMENT" instructions issued for the cheque in
question in the year 2011 and also by punching holes in the case of the complainant
and making the version of the complainant doubtful. The complainant has not been
able to discharge the shifted onus. Cogent evidence is required to be proved beyond
reasonable doubt to secure conviction in a criminal trial.
31. As a result, the complainant has failed to prove the offence beyond reasonable doubt
and the accused has been able to raise a probable defence. As such, the complaint of
the complainant is dismissed and the accused Sushila is hereby acquitted of the
offence of Section 138 of the Negotiable Instruments Act, 1881.
Digitally signed
ORDER:ACQUITTED ISHA by ISHA SINGH Date:
SINGH 2021.09.08
17:33:08 +0530
(Isha Singh)
Announced in open court MM / NI Act -03 / Central
on 08.09.2021 Delhi /08.09.2021
Note: This judgement contains 14 pages and each page has been signed by me.
CC No. 528496/16 Ramakant Soni v. Sushila Page 14 of 14