Delhi District Court
Shilpa Sharma vs Shri Om Prkash Mishra on 18 October, 2024
IN THE COURT OF MS. MARILYN JOANNA KHAKHA,
JUDICIAL MAGISTRATE FIRST CLASS, N.I. ACT -06, SOUTH WEST,
DWARKA, DELHI
CC No. 2525/2019
CNR No. DLSW02-003338/2019
Smt. Shilpa Sharma
W/o Shri Vishnu Dutt Sharma,
R/o Plot No. 65, UT-Block,
Gali No. 5, Uttam Nagar,
New Delhi - 110059. ........Complainant
Versus
Shri Om Prakash Mishra,
S/o Late Shri Ram Kishan Mishra,
R/o S-12, Param Puri, Uttam Nagar,
New Delhi - 110059. .........Accused
DATE OF INSTITUTION : 22.01.2019
OFFENCE COMPLAINED OF : U/s 138 NI Act
DATE OF JUDGMENT : 18.10.2024
FINAL ORDER : ACQUITTED
Judgment
1. The instant matter has originated out of a complaint u/s 138 Negotiable
Instruments Act (hereinafter referred to as "NI Act") filed by the
complainant against the accused alleging that cheque bearing no. 989591
dated 16.11.2018, amounting to Rs. 5,00,000/- issued by the accused in
favour of the complainant were subsequently dishonoured vide return
memo dated 18.12.2018 with the remarks "funds insufficient" and the
Digitally signed by
MARILYN MARILYN JOANNA
JOANNA KHAKHA
Date: 2024.10.18
KHAKHA 14:42:44 +0530
CC No. 2525/19 Page No. 1/20
accused did not pay the above-mentioned amount despite receiving the
legal demand notice dated 26.12.2018.
BRIEF FACTS OF THE CASE
2. It is the case of the complainant that the accused is in the business of property dealing along with his son namely Mr. Vikas Sharma in Jain Colony and in Uttam Nagar, and that the complainant approached both of them regarding sale and purchase of properties in Uttam Nagar, New Delhi 110059. The complainant was the absolute and rightful owner of Second Floor without roof/terrace right towards built up property bearing Plot No. T-47, admeasuring area 60 Sq. yards, and also owner of Third Floor without roof/terrace right of built up property bearing No. 154 & 155, both out of Khasara No. 19/20, situated in the revenue estate of Village Matiala, Delhi state area Abadi known as Jain Colony, Part-1, Uttam Nagar, New Delhi - 110059 (hereinafter referred to as "two properties in Uttam Nagar").
3. The complainant was ready to sell the abovementioned properties for consideration amount of Rs. 13,00,000/- and Rs. 7,50,000/- respectively to the accused and total consideration amount was Rs. 20,50,000/- (Rs. Twenty Lakh Fifty Thousand Only) as per agreement dated 01.03.2017 entered into between both the parties.
4. The complainant kept approaching the accused and his son regarding the balance payment towards the abovementioned property transaction but failed to receive any payment, because of which the complainant lodged a complaint against the accused and his son dated 29.03.2018 before Digitally signed MARILYN by MARILYN CC No. 2525/19 JOANNA JOANNA KHAKHA Page No. 2/20 KHAKHA Date: 2024.10.18 14:42:57 +0530 S.H.O., Police Station, Uttam Nagar, New Delhi -110059. The accused and his son admitted their fault before the police officials and handed over cheques in question to the complainant.
5. The accused issued cheque bearing No. 989591 dated 16.11.2018 for a total sum of Rs. 5,00,000/- (Rupees Five Lakh only) and the said cheque when presented for payment by the complainant through her bankers, was dishonoured by the bankers of the accused, i.e., Canara Bank Dwarka Sector-12, New Delhi - 110075, on the ground of "Funds Insufficient". The return memo was received by the complainant on 18.12.2018.
6. The complainant then issued a Legal Notice, on 26.12.2018 to the accused/respondent, with the request to pay the amount covered by the dishonored cheque within 15 days of the receipt of the Notice. The Legal Notice was sent to the Accused through Regd. A/D and by speed post both dated 02.01.2019 which was not received by the accused intentionally. No payment was received by the complainant pursuant to the delivery of the legal demand notice by the accused.
7. This Court took cognizance of the offence and issued summons against the accused on 23.01.2019. Notice u/s 251 Cr.P.C. was framed against the accused on 11.05.2022 wherein he stated that he had taken a loan of Rs. 11 lacs from the complainant and given some cheques as security. He stated that he had repaid the loan amount in EMIs of Rs. 2,00,000/- and in order to discharge the remaining liability, the complainant took the Swift Dzire Car of the accused, which is still in her possession. Therefore, the accused avers that he does not owe any liability to the complainant.
Digitally signed by MARILYN MARILYN JOANNA
JOANNA KHAKHA
Date: 2024.10.18
KHAKHA 14:43:07 +0530
CC No. 2525/19 Page No. 3/20
8. The complainant was examined as CW-1 on 20.09.2023 wherein she adopted her pre-summoning evidence by way of affidavit, which is Ex. CW-1/1. The original cheque was Ex. CW1/A, the return memo was Ex. CW1/B, the copy of the legal demand notice was Ex. CW1/C, the postal receipt was Ex. CW1/D and the copy of the postal tracking report was Ex. CW1/E. CW-1 stated in her cross-examination that the present dispute rose in the year 2019 in court and in 2018 at a police station. She had sold two houses which belonged to her, bearing no. 154/155 & T-47, Jain Colony, Uttam Nagar to the accused, and that she could bring the documents pertaining to the same on record, if needed. She also stated that, as per the agreement, it was decided that she would sell the abovementioned properties to the accused and in return, he would sell T- 204, Shukar Bazar, Uttam Nagar to her, and that the said agreement was executed on 01.03.2017. The Complainant then put the original agreement dated 01.03.2017 on record, stating that the same was not notarized or registered. She also furnished agreement to sell and purchase dated 30.10.2017 which was Ex. CW1/H where the accused sold property bearing T-204, Bindapur to the complainant for a consideration of Rs. 14,00,000/-. As per the agreement, earnest money of Rs.2,00,000/- was already paid by the complainant. Rs. 12,00,000/- was later given by the complainant to the accused but the same mentioned as a handwritten noting in the document. CW-1 agreed that there is an overwriting in agreement dated 30.10.2017, but she stated that the modification in the document was made by the accused himself after receiving the entire payment. CW-1 also produced a copy of the agreement dated 16.01.2018, i.e., Mark X, which is an agreement to sell wherein the accused sold a property bearing plot No. B-166 to the complainant for Rs. 13,50,000/-. As per the agreement, payment of Rs. 2,00,000/- was received as earnest Digitally signed MARILYN by MARILYN CC No. 2525/19 JOANNA JOANNA KHAKHA Page No. 4/20 KHAKHA Date: 2024.10.18 14:43:18 +0530 money by the complainant on 10.01.2018. CW-1 has stated that she signed the document Mark X, prepared by the accused in the year 2018, but also stated that it is incorrectly mentioned in the document that she had received Rs. 2,00,000/- from the accused on 10.01.2018. In fact, she was the one who gave Rs. 2,00,000/- to the accused when Mark X was entered into. She also stated that she cannot tell the exact dates, but she had paid Rs. 2,00,000/- in cash to the accused and the accused tried to adjust the remaining amount of Rs. 11,50,000/- through other properties by committing several frauds on her. She stated that the accused handed over the cheque in question to her at her home in the presence of her husband. The complainant submitted that, on the date on which the accused handed over the cheque in question to the complainant, his outstanding liability was approximately Rs. 18-18.5 lakhs. The accused owed the consideration amount of Rs. 13,00,000/- qua the house bearing no. T-47, Jain Colony, Uttam Nagar and an amount of Rs. 7,50,000/- qua house bearing no. 154/155, Jain Colony, Uttam Nagar. Out of the above amounts, the accused had paid Rs. 1,60,000/- to the Complainant via cheque and Rs. 40,000/- in cash and a further amount of Rs. 25,000/- at the police station.
9. Statement U/s 313 Cr.PC was recorded on 21.03.2024 wherein the accused stated that while it is true that he is a builder, his son does not carry on the said work with him. He asserted that he did not receive the legal demand notice, but the address mentioned on the same is his correct address. The accused stated that he knows the complainant since 2015 as they lived in the same neighbourhood, and that the entire case of the complainant is false. He admitted that he carried on a business of property dealing, and the complainant approached him for sale of her MARILYN Digitally by MARILYN signed CC No. 2525/19 JOANNA JOANNA KHAKHA Date: 2024.10.18 Page No. 5/20 KHAKHA 14:43:26 +0530 property somewhere in the year 2016-2017. He averred that no agreement to sell and purchase was ever executed between the accused and the complainant and his signatures upon the agreement have been forged. He did not have any role to play in the sale of property of the complainant. The cheque in question was handed over by him in a blank signed condition as he had borrowed some petty amounts from the complainant, as he was in need of money due to demonetization. He repaid most of the amount that he owed to the complainant and the complainant took possession of his Swift Dzire car, in lieu of the remaining amount, which he owed to her. When he asked the complainant to return his cheque, she did not do the same and kept making excuses. She had several arguments and fights with the accused around his residence and office and finally, she instituted the present case against him on false grounds. He concluded by saying that he does not owe any liability towards the complainant. The accused did not lead any DE.
ARGUMENTS ADVANCED BY THE COMPLAINANT
10.Ld. counsel for complainant submits that since the signatures on the cheque in question have been admitted by the accused, the statutory presumption lies in favour of the complainant. According to him, the agreement dated 01.03.2017 is clear on the payment schedule which had to be followed by the accused as consideration for the two properties sold to him by the complainant and is proof of the existence of a legally recoverable debt. Moreover, the accused would pay the consideration amount to the complainant within 6 months for which he mortgaged one of his properties. He was not even the rightful owner of the mortgaged property which is why it is evident that there was malafide intention on MARILYN Digitally MARILYN signed by CC No. 2525/19 Date: 2024.10.18 Page No. 6/20 JOANNA JOANNA KHAKHA KHAKHA 14:43:35 +0530 part of the accused to grab the money of the complainant and commit fraud upon her. It is evident that the statements of the accused are not reliable owing to the inconsistencies and false statements have been made to mislead this court.
11.Further, the accused has already admitted the signatures on the cheque in question and has also admitted his address on the legal notice. Therefore, as per Ld. Counsel for the complainant, the ingredients of offence under Section 138 of NI Act stands satisfied. Further, the accused has also failed to produce any witness to prove the version of facts presented before this court by him. In such a circumstance, the statutory presumption in favour of the complainant does not stand rebutted. Regarding the ownership of the complainant of the Uttam Nagar properties mentioned, the complainant during her cross examination itself stated that she can bring the property documents on record if required by this court. However, the same were not demanded at any stage of trial. Even the letter to SHO Uttam Nagar clearly states that the vehicle bearing number DL9C1472 has been purchased by the complainant from the accused and therefore, the same does not create any contradiction in the case of the complainant since it is a different transaction altogether. With respect to the fact that agreement dated 01.03.2017 is not notarised or registered, the reason for the same is that since registration of such a document is not compulsory.
ARGUMENTS ADVANCED BY THE ACCUSED
12.Ld. Counsel for accused submits that the legal presumptions in favour of the complainant are rebuttable upon the standards of preponderance of Digitally signed MARILYN by MARILYN JOANNA CC No. 2525/19 JOANNA KHAKHA Page No. 7/20 KHAKHA Date: 2024.10.18 14:43:44 +0530 probabilities. He states that the sale deed pertaining to the two Uttam Nagar properties have not even been placed on record and the complainant has not mentioned at any stage of trial that the possession of the abovesaid properties was ever handed over to the accused. Only a mutual agreement dated 01.03.2017 has been placed on record to prove the liability of the accused but the same is neither notarised nor registered. This agreement does not impose legal liability on the accused until and unless physical possession of the property is handed over to the accused by the complainant. It is nowhere mentioned in the complaint or evidence as to when, where and how the sale of properties was concluded between the parties. The accused person has no legally enforceable liability towards the complainant pertaining to the sale of properties and the mutual agreement dated 01.03.2017 is neither registered nor an instrument of sale. With respect to the police complaint filed by the complainant on 29.03.2018 in PS Uttam Nagar where the accused allegedly admitted his fault, no documentary proof/apology letter/settlement proof has been furnished by the complainant in support of the version of facts presented by her.
13.During cross-examination of CW-1 dated 30.01.2024, she has stated that the cheque was handed over to her in her house but in her evidence by way of affidavit and complaint she has stated that the cheque was handed over to her in PS Uttam Nagar. The same is a material contradiction and creates a reasonable doubt in the case of the complainant. It is the defence of the accused that he had borrowed petty loans from the complaint to pay his daily wagers due to shortage of cash during demonetization and therefore, complainant took blank security cheques. Despite the accused paying the entire loan amount to the complainant, she misused his cheque Digitally signed MARILYN by MARILYN JOANNA JOANNA KHAKHA CC No. 2525/19 KHAKHA Date:
2024.10.18 Page No. 8/20 14:43:51 +0530 in order to extort money from him. The complainant has herself admitted that the handwritten letter was written by her to the SHO Uttam Nagar wherein she had taken custody of the vehicle of the accused which was given in full and final settlement between the parties. Hence, there was no amount that was due towards the complainant. It is settled position of law that the case of the complainant should be able to stand on its own legs and even if the accused has not led any evidence, the version of facts presented by the complainant should be without any loopholes.
REASONING OF THIS COURT
14.As per the law pertaining to offences 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.
15.Further, the NI Act raises two important legal presumption in favour of the holder of the cheque as soon as the execution of cheque is proved. Firstly, as per Section 118(a), NI Act, it shall be presumed that every negotiable instrument was 'made, accepted, transferred, negotiated or Digitally signed MARILYN by MARILYN JOANNA JOANNA KHAKHA CC No. 2525/19 KHAKHA Date: 2024.10.18 Page No. 9/20 14:43:59 +0530 endorsed for consideration, unless the contrary is proved'. Secondly, 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.'
16.The principle with respect to above mentioned presumptions, have been laid down in Para 25 of the judgment by Hon'ble apex court in Basalingappa v. Mudibasappa (2019) 5 SCC 418, which lays down as under-
i. "25.1. 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. 25.2. 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. 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.
iv. 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."
Digitally signedMARILYN by MARILYN JOANNA JOANNA KHAKHA KHAKHA Date: 2024.10.18 14:44:07 +0530 CC No. 2525/19 Page No. 10/20
17.Section 118 NI Act raises the following rebuttable presumptions about the cheque in question in favour of the payee.
These are--
1. Cheque was made or drawn for consideration.
2. Cheque was drawn on the date mentioned on cheque.
3. Cheque was delivered to payee after its date and before maturity.
4. Cheque, if transferred to holder in due course, was transferred before maturity.
5. Cheque, if needed, was duly stamped.
6. Holder of the cheque is a holder in due course.
18.The issue to be determined by this court is whether the cheque in question was given by the accused to the complainant against any 'Legal Debt or Other Liability'. It is pertinent to mention here that the accused has admitted his signatures on the cheque in question at the stage of framing of notice and subsequently as well. As per the law laid down by the Hon'ble apex court in Basilingappa (supra), once the execution of the cheque is admitted, the presumption that the cheque in question was executed in discharge of a debt or other liability gets attracted by virtue of the mandate of Section 139, NI Act. Once the above stated presumption is raised, the onus shifts on the accused to raise a probable defence. The signatures of the accused are not disputed on the cheque in question in the present case. Based on the legal position mentioned, the burden lies on the accused to prove that the cheque in question had not been issued in discharge of a legally enforceable debt or liability on the standard of preponderance of probabilities. Accused was at liberty to rebut these presumptions by way of cross examination of complainant and his MARILYN Digitally MARILYN signed by CC No. 2525/19 JOANNA JOANNA KHAKHA Page No. 11/20 Date: 2024.10.18 KHAKHA 14:44:16 +0530 witnesses or by leading substantive evidence in defence. It is required that such evidence must be brought in defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'. Presumption must be rebutted by 'proof' and not by a bare explanation which is merely plausible.
19.The first point of defence raised by Ld. Counsel for the accused is that the cheque in question was given in blank signed condition as security cheques since the accused took petty loans from the complainant to pay his daily wagers during a cash crunch at the time of demonetisation. Further, the accused repaid the entire loan amount in cash, but the complainant still harassed him and in order to recover the interest amount, she approached the police and forcibly made the accused handover his car bearing no. DL9C1472 to her as repayment of the interest pending on the loan amount. To prove this version of facts, CW-1 was confronted with the letter written by her to SHO Uttam Nagar during her cross-examination. The complainant admitted being in possession of the car of the accused and was unable to explain the circumstances in which she took possession of the car of the accused. She stated that she was in possession of the vehicle of the accused without having any documents pertaining to the vehicle. Ld. Counsel for the complainant states that a perusal of the letter to the SHO Uttam Nagar itself shows that the complainant had purchased the car from the accused but at no point during her cross-examination did the complainant clarify that the handing over of the vehicle pertains to a separate transaction altogether. Though this does not conclusively prove the version of facts put forward by the accused, the lack of explanation given by the complainant for being in Digitally signed MARILYN by MARILYN CC No. 2525/19 Page No. 12/20 JOANNA JOANNA KHAKHA KHAKHA Date: 2024.10.18 14:44:24 +0530 possession of the car of the accused does weigh the balance of probabilities in favour of the accused who had stated that he repaid the loan availed by him in cash, and the complainant further took possession of his car to recover the pending interest amount. However, this in itself is not sufficient to create a reasonable doubt in the existence of a legally recoverable debt in the present case. Therefore, this court deems it fit to delve into the other points of defence raised by the accused.
20.The second point of defence raised by Ld. Counsel for the accused is that the case of the complainant fails to stand on its own legs owing to the inconsistencies in her evidence that create a doubt in the existence of a legally recoverable debt. In order to prove the same, this court will delve with the following contentions:
(i) There is no documentary proof furnished to show the transfer of the two Uttam Nagar properties in favour of the accused since the document placed on record before this court is merely a mutual agreement and not a registered sale deed.
(ii) Incorrect statements have been given by the complainant pertaining to the contents of the mutual agreement dated 01.03.2017 relied upon by her.
(iii) Contradictory statements have been made by the complainant pertaining to other transactions entered into by her with the accused which create serious doubts as to her credibility; and
(iv) Material contradiction of the complainant with respect to the circumstances in which the complainant received the cheque in question creates a reasonable doubt in the case of complainant.
MARILYN Digitally by MARILYN signed JOANNA Date: 2024.10.18 JOANNA KHAKHA KHAKHA 14:44:34 +0530 CC No. 2525/19 Page No. 13/20
21.This court will now delve into point (i) mentioned in para 20. The legal liability as per the case of the complainant arises out of the sale of two Uttam Nagar properties by the complainant to the accused. The proof of ownership of those properties was never placed on record before this court. Further, only a mutual agreement dated 01.03.2017 was placed on record before this court as per which, the complainant agreed to sell the two properties to the accused on payment of consideration amount in four instalments. The same appears to be an unregistered document that is neither a sale deed nor a proof of the fact that both properties were successfully transferred to the accused, and their possession was handed over to the accused. The document is not even notarized or registered. Evasive replies have been given by the complainant during her cross- examination when she was asked if the possession of the two Uttam Nagar properties was handed over to the accused by her. In a scenario where there is no proof of the sale transaction crystallizing, there would be no liability of the accused to make payment of the consideration amount. This court is of the opinion that the mutual agreement dated 01.03.2017 does not accrue any right in favour of the accused towards the property and therefore, the complainant is also not entitled to receive any consideration towards both the properties.
22. This court will now delve into point (ii) mentioned in para 20. As per the contents of the mutual agreement dated 01.03.2017, the complainant was the owner of the two Uttam Nagar properties which she was selling to the accused for a total consideration of Rs. 20,50,000/- which had to be repaid in 4 instalments by the accused by 31.08.2017 and the accused in return had mortgaged his property T-204, Bindapur to the complainant. As per the terms of the mutual agreement, the complainant had to vacate MARILYN Digitally MARILYN signed by JOANNA JOANNA KHAKHA Date: 2024.10.18 KHAKHA 14:44:44 +0530 CC No. 2525/19 Page No. 14/20 both her properties till 31.03.2017 and post the payment of the consideration amount, she would return the papers of plot T-204, Bindapur which was mortgaged by the accused. However, in her cross- examination she stated that "it was decided that I will sell the abovementioned properties to the accused and in return, he will sell T- 204, Shankar Bazar, Uttam Nagar, to me". When questions were put as to whether the property bearing no. T-204, Shankar Bazar, Uttam Nagar was given as consideration or mortgaged, she replied that "I cannot give any explanation about the fact that the agreement contains the term mortgage at point A". The complainant stated in her evidence that through the mutual agreement dated 01.03.2017, the accused was also to handover property T-204, Bindapur, Uttam Nagar in her favour but perusal of the mutual agreement dated 01.03.2017 shows that the said property was only mortgaged to the complainant and not sold to her. Therefore, the complainant does not appear to have clarity upon the terms of the agreement relied upon by her which itself creates a serious doubt as to the authenticity of the mutual agreement dated 01.03.2017 filed by her.
23.This court will now delve into point (iii) mentioned in para 20. The accused sold property bearing no. T-204 Bindapur to the complainant for a consideration of Rs. 14 lacs vide a separate agreement to sell dated 30.10.2017. Out of the consideration amount, Rs. 2,00,000/- was received by the accused as earnest money. A handwritten noting is mentioned before para 1 of the agreement to sell dated 30.10.2017 which states that "Rs. 12 lacs paid by the second party to the first party on date 30.10.2017". As per the complainant, this noting was written by the accused on the date of the agreement after she had given Rs. 12,00,000/- to the accused as consideration amount. However, overwriting on the Digitally signed MARILYN by MARILYN JOANNA JOANNA KHAKHA CC No. 2525/19 KHAKHA Date: 2024.10.18 Page No. 15/20 14:44:53 +0530 document does not look genuine and appears to be an attempt to demonstrate before this court that the ownership of the property bearing no. T-204, Bindapur should lie with the complainant since she has already made payment of the entire consideration amount. The complainant during her cross-examination also placed on record agreement to sell dated 16.01.2018, i.e., Mark X, wherein the accused sold a property bearing plot No. B-166, Uttam Nagar to the complainant for a consideration of Rs. 13,50,000/-. As per the agreement, payment of Rs. 2,00,000/- was "received as earnest money" by the complainant and a balance of Rs. 11,50,000/- was to be paid by the complainant to the accused on 16.01.2018. CW-1 has stated that she signed the document Mark X, prepared by the accused in the year 2018, but also stated that it is incorrectly mentioned in the document that she had received Rs. 2,00,000/- out of the total consideration amount from the accused on 10.01.2018. In fact, she was the one who gave Rs. 2,00,000/- to the accused as earnest money. She also stated that she cannot tell the exact dates, but she had paid Rs. 2,00,000/- in cash to the accused and the accused tried to adjust the remaining amount of Rs. 11,50,000/- through other properties by committing several frauds on her. Ld. Counsel for the accused then confronted her with para 8 of civil suit CS bearing no. 633/20 filed by her against the accused in which she has stated that she received Rs. 2,00,000/- from the accused on 10.01.2018 when she filed a complaint before the SHO PS Bindapur on failure of the accused to handover the T-204 Bindapur property to her. A contradiction can be seen in the statement given by the complainant in her cross-examination before this court and in the civil suit regarding the payment or receipt of Rs. 2,00,000/- by the complainant. Since the transaction pertaining to the present case dates back to March, 2017, it is peculiar that the complainant Digitally signed MARILYN by MARILYN JOANNA JOANNA KHAKHA CC No. 2525/19 KHAKHA Date: 2024.10.18 Page No. 16/20 14:45:01 +0530 would enter into further property transactions with the accused after the non-compliance of the accused pertaining to the earlier sale and purchase of properties between them. When the accused has not paid Rs. 20,50,000/- for the earlier transaction, it is improbable for the complainant to further pay Rs. 2,00,000/- in another transaction rather than asking the accused to adjust the amount. Therefore, the contradictions in the testimony of the complainant cast a serious doubt upon the truthfulness of the statements made by her before this court and the genuineness of the documents furnished by her before this court.
24.This court will now delve into point (iv) mentioned in para 20. During cross examination dated 30.01.2024, the complainant stated that the cheque was handed over to her in her house in the presence of her husband but in her evidence by way of affidavit and complaint, she has stated that the cheque weas handed over to her in PS Uttam Nagar after she filed a complaint against the accused when he failed to make balance payment of the consideration amount towards the two Uttam Nagar properties sold by her. The same creates a serious doubt in the case of the complainant since there are discrepancies pertaining to the circumstances in which the cheque in question was given to the complainant. In order to remove such a doubt, it would have been either appropriate for the complainant to produce her husband as a witness or bring the letter/settlement proof pertaining to what transpired before the SHO Uttam Nagar depending on which facts presented by her are correct. In the absence of any such evidence, a reasonable doubt has been created pertaining to the case of the complainant. Even though the signatures on the cheque in question have been admitted by the accused, the statutory presumption in favour of the complainant are rebuttable based on the Digitally signed MARILYN by MARILYN JOANNA CC No. 2525/19 JOANNA KHAKHA KHAKHA Date: 2024.10.18 Page No. 17/20 14:45:11 +0530 preponderance of probabilities. From the abovementioned points (i) to
(iv), it is evident that several contradictions can be seen in the case of the complainant which result in the balance of probabilities weighing in favour of the accused. This court is therefore of the opinion that a reasonable doubt has been created upon the case of the complainant.
25.In Rangappa v. Sri Mohan (2010SCCOnlineSC583) and Krishna Janardhan Bhat v. Dattatreya G Hegde (2008(4)SCC54), the Hon'ble Supreme Court held that test of proportionality should guide the construction and interpretation of reverse onus clauses and their accused cannot be expected to discharge an unduly high standard of proof. Inference can be drawn not only from the materials brought on record but also from the reference to the circumstances upon which the accused relies. Accused can rely on the materials submitted by the complainant in order to raise such a defence. In fact, it is conceivable that in some cases the accused may not need to adduce own evidence. Rebuttal can be done by cross examination of complainant and by showing contradictions and inconsistencies in the case of the complainant itself. Once rebuttal evidence is adduced and accepted by the Court, the evidential burden shifts back to the complainant and thereafter, the presumptions under Section 118 and 139 NI Act would not come to the aid of the complainant.
26.The third point of defence is that the accused never received the legal demand notice. The position of law in this regard is no longer res integra in view of the judgment of Hon'ble apex court in C.C. Alavi Haji v. Palapetty Muhammed (2007) 6 SCC 555, wherein it has been held that an accused who has not received the legal demand notice cannot claim Digitally signed MARILYN by MARILYN JOANNA JOANNA KHAKHA CC No. 2525/19 KHAKHA Date:
2024.10.18 Page No. 18/20 14:45:20 +0530 the benefit of the defence of non-receipt of the same as once summons are served upon him, it is the duty of such an accused to make the payment of the cheque in question within 15 days of receiving summons from the court. Once this option is not availed by him, the benefit of defence of non-service of notice cannot be given to the accused. The accused has not disputed the fact the address mentioned in the legal notice is correct. Even though he submits that he did not in fact receive the legal notice, the same is not a sufficient defence. In this regard, by taking resort to the provision mentioned in Section 27 of the General Clauses Act, this court is of the opinion that a presumption can be raised, that the legal notice was delivered to the accused. Thus, in view of the above facts and circumstances of the case, the defence of the accused regarding non receipt of notice does not appear to be genuine and does not inspire the confidence of the court.
27.As already discussed, the facts and circumstances have given rise to a reasonable doubt in the case of the complainant and the statutory presumption stands rebutted. Since this burden has now shifted to the complainant, the existence of a legally recoverable debt must now be proved beyond reasonable doubt by the complainant. In the absence of a sale deed or possession letter in favour of the accused, it cannot be proved that the property was in fact successfully transferred to the accused and therefore the existence of a legally recoverable debt becomes doubtful. With respect to the mutual agreement dated 01.03.2017 which is not notarized or registered, it would have been appropriate for the complainant to examine the witnesses to the mutual agreement to assert the contents of the mutual agreement and explain the circumstances in which the mutual agreement was entered into. However, the same was not MARILYN Digitally MARILYN signed by CC No. 2525/19 JOANNA JOANNA KHAKHA Date: 2024.10.18 Page No. 19/20 KHAKHA 14:45:28 +0530 done by the complainant. Further, no reasonable explanation has been provided for why the complainant in her complaint and affidavit stated that she was given the cheque in PS Uttam Nagar but later stated that it was given in her home in the presence of her husband. In such a scenario, this court is of the opinion that the complainant has failed to prove her case beyond reasonable doubt.
CONCLUSION
28.Consequently, the accused has succeeded in rebutting the statutory presumption under Section 139, NI Act and the complainant has been unable to prove her case beyond reasonable doubt after the burden of proof shifted was on her. Accordingly, accused Om Prakash Mishra stands acquitted of the offence under section 138 NI Act.
29.This judgment contains 20 pages. This judgment has been pronounced by the undersigned in the open court and each page bears the signatures of the undersigned.
30.Let a copy of the judgment be uploaded on the official website of District Courts, Dwarka forthwith.
MARILYN Digitally
MARILYN
signed by
JOANNA JOANNA KHAKHA
Date: 2024.10.18
ANNOUNCED IN THE OPEN KHAKHA 14:45:35 +0530
COURT ON 18th October, 2024. Marilyn Joanna Khakha JMFC NI ACT-06/South-
West District/ Dwarka Courts/New Delhi 18.10.2024 CC No. 2525/19 Page No. 20/20