Delhi District Court
M/S Vintage Credit & Leasing Pvt. Ltd vs . Jaya Pardeep on 18 May, 2023
1
IN THE COURT OF DR. SATINDER KUMAR GAUTAM
PRESIDING OFFICER SPECIAL COURT(NI ACT) SOUT WEST,
DWARKA
CC NO. 25387/2018
CNR No. DLSW02-026612/2018
M/S VINTAGE CREDIT & LEASING PVT. LTD VS. JAYA PARDEEP
P.S Sector 5 Dwarka South
s.no
1 Name and address of the M/S Vintage Credit & Leasing
complainant Pvt. Ltd. Office At: 7/30,West
Patel Nagar, New Delhi -110008
Through its Manager Shri Rajiv
Singhal
2 Name and address of accused Jaya Pardeep w/o Sh. P.K.
Pardeep, R/o-52 D, Pocket -I,
dilshad Garden, Delhi -95
ALSO AT
C/O M/S Sopra Steria, SEZ
BuildingNo.-4, Plot No. 20-21,
Sector-135, Noida ,UP
3 Offence complained of u/s 138 read with section 142 of
NI Act 1881
4 Plea of accused Pleaded not guilty.
5 Date of institution 06.07.2018
CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 1/30
2
6 Final Order Acquitted
7 Date of such order 18.05.2023
JUDGMENT
INTRODUCTION
1. The present complainant u/s 138 r/w 142 of NI Act 1881 was filed by M/S Vintage Credit and Leasing Pvt. Ltd. company through its Manager/AR Sh. Rajiv Singhal against accused Jaya Pardeep w/o Sh.P.K. Pardeep which was instituted on 06.07.2018 vide CC No. 25387/18 for offence u/s 138 r/w 142 of NI Act against the cheque no. 000177 dated 23.5.2018 for Rs.4,92,000/-. This judgment would dispose off the above caption complaint case.
FACTUAL MATRIX OF THE CASE OF COMPLANANT
2. The gist of the allegations made by the complainant against the accused are that the accused alongwith her husband Sh. P.K. Pardeep approached the complainant for a loan of Rs.5 lakhs in terms of Loan agreement dated 25.2.2017 to be repaid in 24 equal on monthly installment of Rs.29,125/- each but after availing loan, the borrower failed to make payment and the accused being co-borrower in CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 2/30 3 discharge of due amount issued a cheque bearing no. 000177 dated 23.5.2018 for Rs.4,92,000/- in favour of the complainant. However, on presentaion the said cheque by the complainant same was received back as dishonoured with remarks "funds Insufficient" vide returning memo dated 28.5.2018. Therefore, the complainant sent a legal notice dated 5.6.2018 through his counsel but despite service of notice, the accused has not made any payment against the cheque in question within stipulated period. Hence, the present case.
PRE-SUMMONING EVIDENCE
3. On 06.07.2018 complainant ( CW1) examined himself through AR Mr. Rajeev Singhal and tendered his Pre-summoning evidence by way of affidavit in evidence vide Ex.Cw1/1 alongwith some documents such as Incorporation Certificate, Board of Resolution , Original cheque in question, Original returning memo , copy of legal notice, original receipts of postal department, tracking reports and returned envelope vide Ex. CW1/A to Ex. CW1/ H respectively and thereafter, closed his pre-summoning evidence.
COGNIZANCE AND SUMMONING ORDER.
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4. Thereafter, the court considered pre-summoning evidence and the document relied upon and summoned the accused to face trial u/s 138 NI Act vide order dated 06.07.2018.
FRAMING OF NOTICE.
5. Accused alongwith her counsel appeared and notice u/s 251 cr.p.c was framed to which she pleaded not guilty and claimed trial wherein she admitted that cheque bears her signature however other particulars are not filled by her. Apart from above, accused denied having received any legal notice vide dated 17.07.2019. In reply to question no. 6 (What defence do you have to make ?) accused stated as under:
" The cheque in question was given by her to her husband in relation to some properties which she and her husband planing to purchase. She do not know how and when the cheque in question came into the possession of the complainant from her husband. She came to know about the dishonourment of cheque in question only when she received summons from the court. She has no legally enforceable debt or liability towards the complainant. The cheque in question has been misused by the complainant."
CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 4/30 5 In reply to question no. 7 ( Do you have anything else to say ? ), she stated as under:
"She had lodged a complaint against her husband in November, 2017 wherein she had reported that some of her signed documents are missing, in possession of her husband. She had also mentioned in her complaint that she has not issued any signed documents towards the settlement of any liability."
6. Thereafter, statement of accused u/s 294 cr.p.c was recorded in which she did not dispute the genuineness and correctness of cheque in question and returning memo vide Ex. CW1/C and Ex. CW1/D. In view of her statement, the complainant dropped witnesses no.2 and 3 from list of witnesses filed by the complainant alongwith complaint.
COMPLAINANT EVIDENCE
7. On 16.10.2019 complainant through AR Sh. Rajeev Singhal step into the witness box as CW1 who had adopted his pre-summoning evidence in his examination in chief.
8. CW1 was cross examined at length. During cross examination CW1 stated that the complainant company is non banking finance CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 5/30 6 company having certificate from RBI and he has not placed on record all the documents in respect of the present case but he can produce the same if required by the accused. Further, CW1 testified that there are two directors in the complainant company and he is working as Manager (Finance) and other managers are working in other department of the complainant company. CW1 further testified the procedure for granting loan to the applicants stating that the applicant has to fill form giving each and every detail information and company after verifying the same provided loan to everyone irrespective of their profession which includes lawyers as well.
9. Further, CW1 deposed that accused alongwith her husband had approached for loan in the year 2017 but he do not remember date and month however, he can tell what documents were taken from the accused for which he has to see their file. CW1 also proved on record file of the accused maintained by the complainant company and proved the same as Ex. CW1/I alongwith Certificate issued by RBI as Ex. CW1/J. CW1 further stated that there is not specifically mentioned in certificate of RBI that the company can advance the loan.
10. CW1 after perusing the file testified as under:
"Out of the total 24 EMI, the complainant has received five EMIs including the first EMI which was deducted out CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 6/30 7 of the loan amount advanced to the accused. The total loan amount disbursed to the accused was Rs.5,00,000/- by way of cheque in the name of Sh. P.K Pradeep. He cannot tell as to when was the aforesaid amount deducted from the account of complainant company. He further stated that that is reflected in the statement of account of the company."
CW1 further testified that " at the time of advancement of loan, the complainant company did not demand salary slip from the accused" Thereafter, he stated that "the only document that were taken by the complainant company are PAN Card and Salary slip." It is further stated by CW1 that "it is correct that the salary slip does not bear signature of accused. It was verified by the complainant company that the accused was an employee of the organization of which , the accused had furnished the salary slip."
Further, CW1 stated about the husband of accused stating that the complainant verified about employment of Sh. P.K Pardeep from his company i.e Group Services Pvt. Ltd. 103 Ashok Estate, Barakhamba Road, New Delhi and he cannot tell whether Sh.P K Pardeep , husband of accused was a lawyer working with Luthra & Luthra. Further he testified that Luthra & Luthra and Group Services CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 7/30 8 Pvt. Ltd. are sister concerns and Sh. P.K Pardeep was working latter on deputation basis. CW1 further testified that the complainant company had not taken ITR of the accused and her husband. At the time of sanctioning the loan. CW1 denied that the husband of accused was living separately or that he had obtained the signature of accused on some documents including cheques in question and furnished the same with complainant. CW1 furrther stated that " he had personally taken the documents including the loan agreement on which signatures were appended by the accused and her husband in his presence." The accused reached to the complainant company and after verified the detail information with regard to address, bank statement and other ID document such as Adhar card, filled in the form by the accused/applicant. The guarantor Sh. Padam Bahadur Gurung had also accompanied the accused and her husband at the time of taking loan and the PAN card and salary slip of Padam Bahadur were taken by the complainant company. He cannot tell the account number from which the EMIS were deducted through ECS. He also stated that on verbal demand raised by complainant company, the cheque in question was taken from the accused and denied the defence of accused that the cheque in question was taken as blank signed cheque from husband of accused and not from accused. CW1 denied that accused had never given any ECS to the complainant nor it was deducted from the account of accused.
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11. CW1 further stated that the complainant company does not have any other cheque from the accused apart from the subject cheque. He admitted that the ECS mandate form is not on record. CW1 further testified that he does not know if accused and her husband have been residing separately since 2017 or that accused had lodged a complaint against her husband in any police station. The rest of suggestion has been denied. Thereafter, the complainant evidence was closed and matter was listed for statement of accused.
STAEMENT OF ACCUSED
12. On 12.10.2021 accused was examined u/s 313 crp.c read with section 281 cr.p.c wherein accused denied all the incriminating evidence and consistently pleaded his defence stating that:-
" She is not aware about certificate of incorporation and board resolution. She has not issued the cheuqe in question in favour of complainant nor she has not filled the particulars in the cheque in question. However, the signature on the cheque in question are mine. Dishonour cheque is matter of record. she did not receive the legal notice. Around end of 2016 and begining of 2017, her husband was looking for a house loan. For that purpose he got signed various blank cheques from her including the CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 9/30 10 cheque in queston. He also got signed various documents from her for the purpose of procuring the house loan. She is not aware whether her husband took any loan from the complainant company. She also had on going marital dispute with her husband. Her blank signed cheque has been misused by the complainant company and she also filed police complaint against her husband in the year 2017 in P S Seemapuri. "
Accused opted to lead defence evidence.
DEFENCE EVIDENCE
13. The accused Jaya Pradeep w/o Sh.P.K Pradeep examined herself as DW1. She reiterated her defence in her examination in chief stating that she got married in the year 2000 to Sh. P.K Pradeep. Around 2007, she started getting calls and messages from various money lenders for recovery of money. Around end of 2016, they were looking for a house and her husband being lawyer said that he would not be able to get loan from bank and he took several blank signed cheques from her including cheque in question for the purpose of procuring loan. She further stated that her husband got signed various documents for the said purpose and her husband gave her cheques and documents to several banks and after 1-2months, her husband told her that they are not getting any home loan. Further she CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 10/30 11 testified that towards end of 2017, she again started getting calls from money lenders for recovery and from office of her husband as well Luthra & Luthra Associates at Cannaught place and for this reason, she has matrimonial dispute with her husband and even she has lodged complaint against her husband in P.S Seema puri in November 2017 vide Ex.DW1/A. She further reiterated that she has not taken any loan from complainant and the amount was also not credited in her account.
14. DW1 was cross examined by ld. Counsel for complainant at length. During cross- examination, she has admitted her signatures at point A on loan agreement Ex CW1/I on each page, on Pan card Ex CW1/1 and salary slip EX CW1/2. She further stated that these documents might be part of the documents which were got signed from her by her husband. She also admitted that in February, 2017 she and her husband were staying together and there is no mention in her complaint filed by her against her husband regarding complainant company and misuse of cheque. She also admitted that she has not yet took divorced from her husband. Thereafter defence evidence was closed and matter was listed for final arguments.
15. Final arguments were heard, perused the material on record and judgment cited.
CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 11/30 12 POINTS OF ARGUMENT OF COMPLAINANT
16. Ld. Counsel for the complainant during arguments reiterated his averments / allegations as made in her complaint and in statement of CW1 by way of affidavit. It is contended that "Accused in the capacity of the coborrower and towards the disicharge of the liability of balance amount due in the accounts maintained by the complainant, issued/ gave a cheque bearing no. 000177 dated 23.5.2018 for Rs. 4,92,000/- in favour of the complainant. It is further contended that the accused has admitted her signature on the cheque in question while giving reply to notice u/s 251cr.p.c as such, the presumption was in the favour of the complainant u/s 139 of Negotiable Instrument Act that the cheque was issued to discharge of debt or liability and thus, the burdon of prove is shifted on the accused that she has not issued the cheque in queustion towards liability. The accused failed to prove her defence or even raise a probable defence and thus the accused is liable to be punished for the offence u/s 138 NI Act.
17. It is further contended that the accused has admitted her signature on the loan agreement, pan card and salary slip which shows that the accused was well aware about the loan taken by her alogwith her husband. The defence of accused that she is having matrimonial dispute with her husband was also dented during her examination as CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 12/30 13 DW1 where she herself stated that she was residing with her husband in February 2017 at the time of taking loan and she and her husband were looking for a house and thus, it is crystle clear that the defence of misuse of cheque is a sham plea to avoid punishment for the offence u/s 138 of NI Act. Further , it is contended that defence of accused that her cheque was misused by her husband has also been rebutted with her own testimoney where she admitted that in the complaint lodged by her in P S, there is no where mention about the name of complainant or misused her cheque. The accused herself admitted that she has not taken divorce till date which shows that accused alongwith her husband are trying to mislead the court to avoid the payment to the complainant and to escape from legal liability and thus, the complainant has proved its case beyond all reasonable doubt by defeating the defence of the accused and prayed that accused may be punished as per law.
CONTENION OF ACCUSED
18. Per Contra , ld. Counsel for accused argued that the accused has never applied for loan to the complainant and this has been proved from the loan application form filed by the complainant and proved as Ex. CW1/I wherein the applicant is shown only Mr. P.K Pradeep . It is admitted fact that loan amount was credited in account of PK Pradeep and even four EMIs were also deducted from the account of CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 13/30 14 Mr. P.K Pardeep. Therefore, it is clear that the loan was given to Mr. P. K Pradeep only. As such, the complainant failed to prove liability against the accused. It is further contended that the statement of accused as DW1 is self explanatory wherein she stated that:
" Around end of 2016, we were looking for a house. My husband being a lawyer said that he would not be able to get loan from bank. He took several blank signed cheques from me including the cheque in question for the purposse of procuring loan. He also got signed various documents from for the said purpose. My husband gave my cheques and documents to several banks. After 1-2 months, he said that we are not getting any home loan. Thereafter, towards the end of 2017, I again started getting cals from money lenders for recovery and from office of my husband as well i.e Luthra and Luthra Associates at C.P I also had on going marital disputes with my husband for the reason and other reasons. I also filed polcie complaint against my husband in November, 2017 in P S Seemapuri. The complaint is Ex.DW1/A. I do not know how complainant company got into possession of my cheque. I have not taken any loan from the complainant CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 14/30 15 company and the amount was also not credited in my account."
It is further contended that from the above deposition of accused, it is crystal clear that the cheque in question was misued by the husband of the accused. Therefore, the accused does not owe any liability against the complainant.
19. It is further contended that on perusal of cheque Ex. CW1/C whereon it is mentioned " not more than 5 lakhs only" shows that the cheque was given as security by the husband of accused and detail in the same was filled by the complainant. The main borrower was P.K Pardeep who was not made party. The complainant had opened the loan account in the name of P.K Pradeep it shows that personal loan was advanced to Mr. P.K Pradeep only. Even otherwise, the installment of EMIs were deducted from the account of Pradeep and not from the account of accused. Therefore, the contention of the complainant that loan was jointly disbursed to the accused and her husband is absolutely false and baseless. Even there is no joint bankaccount was operated.
20. It is further contended that on perusal of loan account Ex.
CW1/1, it reveals that the complainant has calculated interest for 24 months on Rs.5 lac which comes as Rs.1,99,008/- and EMI made CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 15/30 16 thereon as Rs.29,125/-. The actual amount credited in the account of Mr. P.K Pradeep was Rs.4,26,275/-only instead of Rs.5 lac and same may be verified from loan agreement at page no. 11 wherein detail of actual amount credit total amount of interest and amount of EMI are mentioned. The loan amount was to be repaid in 24 months whereas, the loan was recalled within 15 months from the date of disbursement and if the interest is calculated for 15 months, the total due even against the husband would be as under:
24 months interest= Rs.1,99,008/-
15 months interest = Rs1,99,008/24X15=1,24,380/-
Actual disbursement Rs.4,26,275/- + Interest Rs.1,24,380/- =Rs.5,55,655/-
Actual outstanding Amount Rs.5,55,655/- minus the amount of four EMIs already paid i.e Rs.1,45,500/- = Rs 4,05,155/-
Thus, the cheque amount of Rs.4,92,000/- is much higher than that of actual outstanding amount therefore, the case of the accused is squarely covered by the law laid down by the Hon'ble High Court of Delhi in M/S Alliance Infrastructure project Pvt. Ltd.and Ors vs Vinay Mittal, 2010 (1) JCC ( NI ) 98 and Hon'ble Supreme Court in Dashrathbhai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel & Anr.( Criminal Appeal no.1497/2022) and prayed that the complaint of the complainant may be dismissed.
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21. Having considered the rival submissions, the material on record and judgment relied upon.
LEGAL DISCUSSION
22. To bring home a liability under section 138 of NI Act, 1881, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, viz.
1. A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability;
2. The cheque has been presented to the bank within a period of three months from the date mentioned on the cheque or within the period of its validity, whichever is earlier;
3. The cheque is returned by the bank unpaid either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
4. The payee or the holder in due course of the cheque makes a demand for the payment of teh said maount of money by giving a notice in writing to the drawer of the cheque within 40 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
5. The drawer of such cheque fails to make the payment to the payee or the holder in due course of the cheque within 15 days of the receipt of the notice.
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23. Unlike the prosecution, the accused has to prove his defence on probabilities by leading cogent evidence. The onus on the accused is not as stringent and rigorous as is on the prosecution even in case of a trial which proceeds on reverse onus of proof theory. The said view is endorsed by the Hon'ble Apex court in a plethora of decisions, one being, Kali Ram v. State of Himachal Pradesh 91973) 2 SCC 808 wherein it been held that:
" ... The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal"
Burden of prove
24. Further in judgment titled as Kumar Exports Vs Sharma Carpets ,(2009) 2 SCC 513, " This court again examined as to when complainant discharges the burden to prove that instrument was executed and when the burden shall be shifted."
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25. In the present case, the accused has taken consistent stand that she did not avail any loan from the present complainant and she had given blank signed cheque in question to her husband alongwith other documents as they were planing for purchasing a property and she did not give any cheque to the complainant. It was her husband who got her signature on some documents out of which, the alleged loan agreement might be same on which her husband had taken her signature and she do not know how her signed cheque came in to possession of complainant. The accused has also taken plea of defence that no loan amount was disbursed in her account nor she paid any EMI of the alleged loan. therefore, the onus of proof which is only preponderance of probability upon the accused is discharged.
26. Reliance can be placed of judgement Rangappa Vs. Sri Mohan (2010) 11 SCC 441 wherein it is held that:
" i. Presumption under Section 118 (a) and 139 N.I Act, as once the execution of cheque is admitted Section 139 of the Act, mandates a presumption that cheque was for the discharge of our debt or other liability ( through in this case execution is not admitted, however, signatures were admitted) ii The presumption u/s 139 N.I Act is rebuttable pre-sumption and onus is on accused to raise the probable defence. The CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 19/30 20 standard of proof for rebutting presumption is that of pre- ponderance of probabilities.
iii. To rebut the presumption, it is open to accused to reply on evidence led by her or the accused can also rely on the materials submitted by the compainant in order to raise probable defence. Inference of preponderance of probabilities can be drawn not only from material brought on record by the parties but also by reference to the circumstances upon which they rely.
Iv It is not necessary for accused to step into witness box in support of his defence Sec. 139 imposed on evidentiary burden and not a persuation burden, as held by Hon'ble Apex cout from time to time.
27. Accused relied upon on the material submitted by the complainant, in order to raise such dent in the complainant case submitted that on perusal of loan agreement shows that main borrower of P. K. Pardeep and installment was also been deducted from the account of husband of accused. It clearly proves that the loan was disbursed to the husband of accused to whom, the complainant did not make party in the present case. In fact, it is CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 20/30 21 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 and from the material placed by the complainant. 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.
28. The onus thus shifts on the complainant and the rebuttable presumption of law under Section139 NI Act thus vanishes. The complainant is unable to prove that he had advanced loan to the accused and the cheque in question was issued by the accused in discharge of his legally enforceable debt.
29. In the present case, husband of the accused made part payment and complainant did not mention about part payment made by Sh.P.K Pardeep principal borrower by complying the provision u/s 56 of the NI Act. Even otherwise, as per judgment relied on by the ld. Counsel for accused titled as Dashratbhal Trikambhal Patel Vs. Hitesh Mahendrabhai Patel and others. Crl. A. No. 1497/2022 dated 11.10.2022, 2022 Live Law (SC) 830 support the contention for the accused. Thus, the complainant has not been able to prove that the cheque in question was issued by the accused for discharge CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 21/30 22 of legally enforceable liability/ debt as on the date of the cheque and hence the foremost ingredients of offence punishable u/s 138 of NI Act is not established.
30. In the above judgment, it has also been stated that in para 16 that:
"The judgments of this court on post-dated cheques when read with the purpose of Section 138 indicate that an offence under the provision arises if the cheque represents a legally enforceable debt on the date of maturity. The offence under Section 138 is tipped by the dishonour of the cheque when it is sought to be encashed. Though a post-dated cheque might be drawn to represent a legally enforceable debt at the time of its drawing, for the offence to be attracted, the cheque must represent a legally enforceable debt at the time of encashment. If there has been a material change in the circumstance such that the sum in the cheques does not represent a legally enforceable debt at the time of maturity or encashment then the offence under Section 138 is not made out".
31. In the said judgment , it has also been held in para no. 30 as under
"(i) For the commission of an offence under Section 138, the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation.
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(ii) If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque;
(iii) When a part or whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be endorsed on the cheque as prescribed in Section 56 of the Act. The cheque endorsed with the payment made may be used to negotiate the balance, if any, if the cheque that is endorsed is dishonoured when it is sought to be encashed upon maturity, then the offence under Section 138 will stand attracted;"
32. Mere assertion of the complainant does not come as a good defence, unless the complainant leads cogent & trustworthy evidence to prove the said assertion. Section 103 of the Indian Evidence Act provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is proved by any special law that the proof of that fact shall lie on any particular person. Section 103 of the Indian Evidence Act amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue. The CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 23/30 24 complainant's deposition on the issue involve does not inspire any confidence.
33. The accused having two folded defence in order to discharge her liability of the debt. As per the document in question filed by the complainant i.e personal loan application was in the name of Sh. P.K Pradeep , guarantor Padam Bahadur Gurung, Rajiv Singhal is the witness, promissory note dated 25.2.2017 signed as borrower Jaya Pradeep. The amount of loan of Rs 5 lac as per terms and condition was to be repaid in EMI of Rs. 29,125/- and advance OTI is Rs.40,000/-+ Rs.4600/-, amount paid after deduction Rs 4,26,275/-, period of loan 24 months , interest @ 19.9%, the interest amount is Rs. 1,99,000/-. As per statement of account of complanant, the principal borrower Sh. P. K. Pardeep has paid eleven installments of Rs.29,125/- commenced from 11.7.2017 and last installment was paid on 11.5.2018. The closing balance was shown as Rs.11,03,258/-. As per judgment Aparna A. Shah v/s Sheth Developers Pvt. Ltd (2013) 8 SCC71 where it was observed that :
" in cases where cheque is issued from the personal account of an individual, signatory alone can be prosecuted for offence u/s 138 NI. Act. Joint account holder who has not signed the cheque or guarantor to debt who has not issued the cheque in question cannot be CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 24/30 25 prosecuted. If legal demand notice is not served on the signatory, but is served upon on some other personcomponents of offence under 138 NI Act cannot be said to have been complied with."
34. The accused in notice u/s 251 cr.p.c stated that she has not received any legal notice. Statement u/s 313 cr.p.c of accused also reflected same version. As per promissory note address of the accused is H. NO. 52-D, Pocket -1, Dilshad Garden, New Delhi. Tracking report says that:
" item delivered at New Delhi GPO on 09.06.2018. Registery envelope of legal notice received back with the report of"
35. In view of above discussion, judgment cited, the complainant has not been able to prove that the cheque in question was issued by accused in order to discharge of her liability as on the date of the cheque and hence foremost ingrediengts of offence punishable us 138 of NI Act is missing and unable to prove it. "ES NAM KA KOI NAHI REHTA WAPIS"
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36. As per judgment of Som Sugandh Industries Ltd. & Anr. Vs. UOI & Anr 2010 (1) JCC ( NI ) 105 High Court of Delhi wherein it was held that :
" the notice shall be deemed to have been given at the place where it is served upon the addressee and not at the place from where it was dispatched"
37. Therefore, as per report of the dispatcher , it was served upon New Delhi GPO. Another contention raised by the complainant that the amount of loan was disbursed in the account of PK Pardeep and the cheque amount was disbursed in his account. Apart from this, installments were also paid by P.K. Pradeep, principle borrower who had also issued several cheques in favour of the complainant as security cheque. As per averment made in the preceeding para , it revealed that out of Rs.5 lac, Rs. 4,26,275/- was credited in the account of Mr. P.K Pardeep and same had to be payable in 24 months. Part payment has been paid as EMIs of Rs. 29,125/- each therefore outstanding amount of Rs.5,55,655/-. Four EMI also paid I.e total Rs. 1,45,500/- and balance is Rs.4,05155/-. The cheque amount is of Rs. 4,92,000/- which is much higher from the actual outstanding amount. To this effect, the accused has relied on judgment M/S Alliance Infrastructure project Pvt. Ltd. & Anr Vs. Vinay Mittal 2010 (1) JCC (NI) 98 and judgment of CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 26/30 27 Dashrathbai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel & Anr. in Crl. Appeal 1497 ( 2022) Live Law ( SC) 830 wherein it was held that :
" though a post dated cheque might be drawn to represent a legally enforceable debt at the time of its drawing, for the offence to be attracted, the cheque must represent a legally enforceable debt at the time of encashment. If there has been a material change in the circumstance such that the sum in the cheque does not represent a legally enforceable debt at the time of maturity or encashment, then the offence under Section 138 is not made out."
It must be endorsed on the cheque as prescribed in section 56 of the Act
38. It is also revealed from section 39 of NI Act 1881 which shows that when the holder of an acceptance entered into an agreement with the acceptor wich , under section 134 or 135 of the Indian Contract Act, 1872 would discharge the other parties, the holder may expressly reserve his right to charge the other parties, and in such case there no discharge.
CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 27/30 28
39. Therefore, it is the person who had actually borrowed the loan amount is P.K Pardeep as the principal borrower accepted the liability and the amount of loan was paid in his personal account and he has made a few installment thereafter. It is a matter of record that there is no joint account with the present accused person nor the amount of loan was disbursed in the joint account. Even otherwise, installment of loan was not paid by the accused Jaya Pardeep in any manner in the account of the complainant. It is also matter of fact that the husband of accused is a lawyer and he himself could not able to get loan from the bank. This is also matter of record that there is no inter-se domestic dispute and her husband has taken loan from other persons and he obtained blank signed cheque from the present accused in lieu of home loan. The present complainant has filed a police complaint against her husband in P S Seema Puri and proved as Ex. DW1/A. Cheque Ex. CW1/C " not more than five lacs only"
is written which shows that the cheque was given as security. There is no evidence produced by the complainant having installment of cheque given by herself to the complainant. CW1 authorised AR AR of the complainant was cross examined on behalf of accused wherein he stated as under :
" that... I cannot tell what documents were taken from the accused. He has not gone through norms of the RBI. The complainant has received five EMIS including the first EMI CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 28/30 29 which was deducted out of the loan amount advanced to the accused. The loan amount was disbursed in the name of Sh. P.K Pradeep.... At the time of advancement of loan, the complainant company did not demand salary slip from the accused and the salary slip does not bear signature of the accused. The complainant has not verified whether the accused had taken loans from elsewhere. Further, he stated that he do not know if accused and her husband have been residing separately since 2017 or that the accused had lodged a complaint against her husband. He admitted that ECS mandate form is not on record and the complainant company does not have any other cheque from the accused apart from the subject cheque. "
40. Statement given by the AR of the complainant, during his cross examination is in air and contradictory to the documents placed on record. Hence his deposition does not inspire much confidence in order to prove the guilt of the accused.
41. Keeping in view the aforesaid facts and circumstances and discussion and judgment cited by the ld. Counsel for the accused is fully applicable to the present case and the complainant failed to prove its case against the accused beyond reasonable doubt as the ingredient of 138 NI Act could not be corroborated with the material placed on record by the complainant in absence of proving the same CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 29/30 30 with cogent evidence. Thus, as there is no incriminating evidence brought on record by the complainant against the accused, the influence of pre-ponderance of probability could not be drawn in favour of the complainant. As such the Court has come to the conclusion that the complainant has failed to prove its case against the accused beyond any shadow of doubt. Accordingly, accused Ms. Jaya Pradeep w/o Sh. P. K. Pradeep is acquitted for offence puishable u/s 138 NI Act qua the cheque in question.
42. This judgment contains 30 pages in number and every page of this judgment is signed by me with dated.
Announced in the open Court On 18th May, 2023.
( Dr. Satinder Kumar Gautam) PO Special Court (NI Act) S-W Dwarka 18.05.2023 CC NO. 25387/2018 M/S Vintage Credit &Leasing Pvt. Ltd. Vs. Jaya Pardeep 30/30