Delhi District Court
Arnesh Kumari vs . Pardeep Shokeen on 16 September, 2021
IN THE COURT OF MS. MEDHA ARYA MM (N.I. Act03) SOUTHWEST: DWARKA COURTS: NEW DELHI CNR No. DLSW020036612015 Ct. Case No.4993094/2016 PS: Dwarka North U/s.138 N.I. Act. Arnesh Kumari Vs. Pardeep Shokeen Date of Institution of case: 04.08.2015 Date of which Judgment reserved: 08.09.2021 Date on which judgment pronounced: 16.09.2021 JUDGMENT
1) Unique ID no. of the case : 02405R0092602015
2) Name of complainant : Arnesh Kumari
3) Name and address of accused : Pardeep Shokeen S/o Sh. Sompal
Shokeen, R/o H No. 223, Mangol Pur
Kalan, Delhi110085
4) Offence complained of : Section 138 N.I. Act
5) Plea of accused : Not guilty and claim trial
6) Final Order : Conviction U/s.138 N.I. Act
7) Date of order : 16.09.2021
BRIEF REASONS FOR DECISION
1. Vide this judgment, this Court shall dispose of the complaint filed by the complainant Arnesh Kumari, wherein she has sought the summoning, trial and conviction of accused Pradeep Shokeen u/s138 Negotiable Instruments Act, 1881, alleging that the latter had sought a friendly loan of Rs.5,50,000 from her, and the cheque issued by him for the purpose of repayment of the loan was dishonoured.
Pg. 1 of 35 C.C. No.4993094/2016
2. Bereft of any unnecessary details, it is the case of the complainant that the accused is the friend of her son, and they had been maintaining good family relations with him for over five years, at the time of filing of the above captioned complaint. It is the case of the complainant that she had earlier entered into an agreement to sell and purchase with the accused with respect to a property situated bearing House no. 233, Mangol Pur Kalan, admeasuring 50 square yards, Part of khasra no. 70/30, Khatakhatauni no. 18, for a total sum of Rs.5 lakhs, and the sale consideration with respect to the same been duly paid by the complainant to the accused vide receipt dated 25.01.2014. It is further the case of the complainant that the accused had approached her in the first week of March 2014, seeking a friendly loan for an amount of Rs.5,50,000, for an urgent personal requirement, and promised to repay the said loan within a period of one year. On account of the friendly relations between the parties, the complainant duly advanced the sum of Rs.5,50,000 to the accused in the third week of March 2014. It is further the case of the complainant that in the month of May 2014, the accused further approached her son for another loan of Rs.6,00,000/ and even this sum was advanced by her son to the accused, after it was assured by the accused that he shall repay the entire amount of Rs.11,50,000/ to the complainant and her son respectively, by March 2015. It is averred in the complaint that the accused failed to repay the loan amount within a period of one year despite repeated requests of the complainant and her son. Finally, in April 2015, in discharge of his legally enforceable liability towards the complainant and her son respectively, the accused issued two post dated cheques bearing numbers 525821 and 525822, both dated 02.06.2015. The first cheque mentioned in the foregoing sentence, being the cheque bearing number 525821 dated 02.06.2015, amounting to Rs.5,50,000, in favour of the complainant, Pg. 2 of 35 C.C. No.4993094/2016 drawn on HDFC Bank, Karol Bagh, New Delhi is the cheque in question in the present complaint. It is the case of the complainant that the cheque in question was dishonoured upon presentation with the remarks "account closed" vide return memo dated 18.06.2015. It is further the case of the complainant that the accused failed to clear his debt towards the complainant despite due service of legal notice dated 03.07.2015 upon the accused by the complainant and the expiry of 15 days thereafter. It is in this backdrop that the complainant was constrained to file the present complaint. It is the case of the complainant that the instant complaint has been filed well within the limitation period as per Section 142 of the Negotiable Instruments Act 1881, and the territorial jurisdiction to try the instant complaint lies with this court.
3. To prove her case prima facie, in her examination under section 200 CrPC, the complainant/CW1 tendered the evidence affidavit Ex CW1/1, the contents of which are not being reiterated herein in the interest of brevity, the same being commensurate with her contentions in the complaint. Complainant/CW1 also relied upon an additional evidence affidavit Ex CW 1/2, wherein CW1 has deposed that the envelopes containing the legal notice sent by her counsel to the accused via speed post and courier were returned unserved, after the filing of the present complaint, as the accused refused the receipt thereof. In her testimony as CW1, the complainant also relied upon the following documents
(i) The original cheque in question Ex CW 1/A
(ii) The original cheque return memo, duly stamped, Ex CW 1/B
(iii) Legal notice dated 3.07.2015 Ex CW1/C
(iv) Speed post receipts Ex CW 1/D Pg. 3 of 35 C.C. No.4993094/2016
(v) Courier receipt Ex CW 1/E
(vi) Internet generated tracking report of the speed post receipts Ex CW1/F
(vii) The complaint Ex X. In her presummoning evidence, CW1 also deposed that she maintains a bank account at Vijaya Bank, Najafgarh Branch, New Delhi and the cheque in question was presented by her in the said account. CW1 also deposed that the statutory demand notice was sent to the accused by her at his correct address.
4. Upon consideration of the presummoning evidence adduced on record by the complainant, and after hearing the complainant on the point of summoning, the accused was summoned. When the accused entered appearance consequent to the service of process, a formal notice under Section 251 CrPC was served upon him, whereby the contents of the allegations against him as contained in the complaint as well as the other material on the record were explained to the accused. At the time of framing of notice under section 251 CrPC, the accused pleaded not guilty and claimed trial. When queried with respect to his defence, the accused admitted his signatures on the cheque in question but stated that he had issued the said cheque in blanksigned condition to the complainant as security when he had obtained a loan of Rs.5,00,000 (Five lakhs) from the complainant. The accused further stated that he had already repaid the entire loan amount to the son of the complainant, despite which the cheque in question was misused by the complainant. The accused denied the receipt of legal notice dated 03.07.2015.
5. The accused thereafter moved an application under Section 145 (2) Negotiable Instruments Act,1881 which was allowed by the Court vide order Pg. 4 of 35 C.C. No.4993094/2016 dated 30.08.2016, as unopposed by the opposite party. The matter was thereafter fixed for CE.
6. At this stage, CW1/the complainant adopted her presummoning evidence as her post summoning evidence . In her crossexamination by the accused, the complainant stated that she had advanced a loan of Rs.5,50,000 to the accused, in the presence of her son. CW1 further deposed on oath that the accused did not disclose the exact purpose for which he required the aforesaid amount. CW1 denied the suggestion that her son and accused had together started a business of a snooker centre. She neither confirmed nor denied the suggestion that her son had entered into a business enterprise together with the accused. The complainant stated that she is not engaged in moneylending business. CW1 deposed that at the time of giving the loan to the accused, a sale agreement was executed between her and the accused herein, but she had made the payment to the accused as per the said agreement, in the the beginning of May 2014. The complainant denied the suggestion that the accused had only taken Rs.2 lakhs from her and further denied the suggestion that the two cheques, including the cheque in question, were given by the accused to her in lieu of the said amount of Rs.2 lakhs. The complainant further denied the suggestion that the accused had returned the cheque amount. She further denied the suggestion that she failed to return the security cheques on demand of the accused, despite the fact that the accused had already repaid the loan amount to her. CW1 deposed on oath that she can not confirm who had filled the particulars on the cheque in question. Upon being queried qua the source of the money through which she had advanced a loan to the accused, CW1 stated that the loan amount was given to the accused out of certain compensation which was awarded to her when her Pg. 5 of 35 C.C. No.4993094/2016 land situated in Gurgaon, Haryana was acquired by the Government. She also testified on oath that part of the loan amount was given by her to the accused after she withdrew that amount from her bank account maintained by her, at Vijaya bank, Najafgarh. The complainant stated that the accused had also accompanied her when she had gone to withdraw the said loan amount from her Bank Account. At this stage, her further crossexamination was deferred.
When CW1 was recalled for crossexamination on 30.01.2019, she adduced on record the statement of account of a bank account bearing number 605101011002947, maintained by her at Vijaya Bank, for the period 5.03.2014 to 1.05.2015. She also brought on record the agreement to sell and purchase as well as possession letter dated 25.01. 2014, Ex CW 1/E(colly). CW1 deposed on oath that she had withdrawn a sum of Rs.9 lakhs from her bank account on 14.03.2014 and 10,00,000 on 20.03.2014 for some personal work and to purchase some property, and out of this sum she advanced a loan of Rs.5,50,000 to the accused in March 2014 and invested the remaining amount in some property, the details of which she did not disclose on record. CW1 deposed that the cheque in question was given to her by the accused in April, 2015 but no receipt was executed either at the time when the loan was advanced by her to the accused, or at the time when the accused issued the cheque in her favour for the purpose of repayment of the loan. CW1 further testified on oath that the accused had given two cheques, including the cheque in question, to her son at her residence towards the repayment of the loan sought by him from her as well as from her son, but she could not recall whether the particulars on the cheques were filled in by the accused or not. CW1 deposed on oath that the property with respect to which the document Ex CW 1/I was executed is not in her possession, and neither has she obtained the previous chain of ownership Pg. 6 of 35 C.C. No.4993094/2016 documents of the property from the accused, nor has she filed any possession suit with respect to the said property, against the accused. CW1 deposed that the document Ex CW 1/I was prepared by the accused, and the accused signed the said document at her residence in her presence. CW1 denied the suggestion that the document Ex CW 1/I as well as the two cheques including the cheque in question were executed by the accused as a security against the loan of Rs.2 lakhs taken by the accused from her, and it is for this reason that she has failed to issue any notice to the accused or failed to file any suit against the accused for the possession of the property which is the subject matter of the document Ex CW 1/I. CW1 further denied the suggestion that she had never advanced a loan of Rs.5,50,000 to the accused and it is for this reason that no document evidencing the loan transaction was ever executed between the parties. CW1 also denied the suggestion that the two cheques, including the cheque in question, had been issued by the accused in her favour as security for the repayment of the sum of Rs.2 lakhs, and these cheques, including the cheque in question , have been misused by her and her son.
At this stage, the crossexamination of CW1 was further deferred. CW1 was recalled for further crossexamination on 11.04.2019. In her testimony recorded on the said date, CW1 accepted as correct the suggestion that she had agreed to produce the sale deed with respect to the property in which she had invested around the time when the loan was advanced by her to the accused, but did not produce the same. She denied the suggestion that she did not produce the sale deed intentionally, as the same would have established that she had withdrawn the money from her bank account for the purpose of purchasing that property and not for advancing a loan to the accused. CW1 further deposed on oath that she had not filed any civil suit for the recovery of Pg. 7 of 35 C.C. No.4993094/2016 the amount of the cheque in question, and voluntarily stated that the reason for that is the filing of the instant complaint. CW1 deposed that she is unaware of the denomination of the currency notes comprising the loan amount which was advanced by her to the accused herein, but denied the suggestion that her ignorance with respect to the denomination of currency notes was because of the reason that no loan was ever advanced by her to the accused. CW1 deposed that the cheque in question was given by the accused to her son in May 2015 at her home, in her presence, along with one other cheque . The cross examination of CW1 was thus concluded, and she was thereafter discharged as a witness.
7. The complainant next examined her son Sunny Sehrawat as CW2. CW2 deposed in his examination in chief that the accused is his friend and he had advanced a loan of Rs.6 lakhs to the accused in the year 2015, and further that the accused had also obtained a sum of Rs.5,50,000 from his mother in the same year. CW2 deposed that the accused had issued two cheques, including the cheque in question, towards repayment of the total loan amount of Rs.11.5 lakhs, but both the cheques were dishonoured upon presentation and with respect to both of them, a legal notice was issued by them to the accused.
In his crossexamination, CW2 deposed that he has been acquainted with the accused since his childhood, but did not have any business dealings with him. CW2 deposed on oath that the accused had approached him for a loan of Rs.5 to 7 lakhs in March 2014, and he had advanced the loan of Rs.6 lakhs to the accused without charging any interest on the same. Queried as to his capacity to advance alone to the accused, CW2 deposed that he is engaged in the business of exporting of clothes and his monthly income was approximately Rs.1,00,00 at the time of recording of his testimony on 3.06.2019. CW2 further deposed that Pg. 8 of 35 C.C. No.4993094/2016 he is assessed to income tax. At this stage , for want of his income income tax return documents, the crossexamination of CW2 was deferred.
CW2 was recalled for further crossexamination on 17.07.2019, on which date he produced on record his income tax return documents for the period 2013 to 2014 , and 2014 to 2015, Ex CW 2/A(colly). CW2 deposed on oath that he had duly informed his CA regarding the fact that he had advanced a friendly loan of Rs.6 lakhs to the accused and denied the suggestion that no document was filed along with the ITR with respect to the loan transaction for the relevant period for the reason that no such loan was ever advanced by him to the accused. CW2 deposed that the cheque in question was given to the complainant by the accused, but he had not seen the cheque at the same time. At this stage, the cheque in question Ex CW 1/E was shown to the witness CW2, and CW2 deposed that he does not recognise the handwriting on the same. CW2 deposed that his mother does not know how to write in English and further accepted as correct the suggestion that the cheque Ex CW1/E does not contain any particular which is in his handwriting. CW2 deposed on oath that the alleged loan had been given by his mother to the accused in March 2014 in his presence, and no third person was present at the time when the loan was advanced by the complainant to the accused. CW2 further deposed that the accused had accompanied him and her mother to the bank, when her mother withdrew an amount of Rs.6 lakhs and handed over the same to the accused. CW2 deposed that no document to evidence the loan transaction was executed between the complainant and the accused, or between him and the accused. CW2 further deposed that his mother does not have any source of income. CW2 deposed that they had approached the accused in March2015 for the repayment of the loan, after the cheque in question had been dishonoured. CW2 denied the Pg. 9 of 35 C.C. No.4993094/2016 suggestion that the accused had obtained a loan of Rs.5 lakhs from his mother and the same had already been repaid. CW2 further denied the suggestion that the accused had issued two blank signed cheques as well as had executed the agreement to sell only as a security towards repayment of the loan amount of Rs.5 lakhs. CW2 further denied the suggestion that the accused had never obtained a loan of Rs.6 lakhs from him, and it is for this reason that there does not exist any document executed between him and the accused to show the said transaction. CW2 was discharged as a witness thereafter.
8. No other witnesses were examined by the complainant and CE was closed vide order dated 21.10.2019.
9. Thereafter, the statement of the accused was recorded under section 313 CrPC. In his statement under section 313 CrPC, the accused stated that he is friends with the son of the complainant and had obtained a loan of Rs.5 lakhs from the complainant in January 2014. The accused further stated that when he had obtained the loan from the complainant, he had given two cheques in blank signed condition to the complainant and had even executed a power of attorney with respect to his property in favour of the complainant as security towards the repayment of the loan amount of Rs.5 lakhs. The accused further stated that he had never obtained any loan from the son of the complainant and further stated that the complainant has misused the cheque in question, which was given by him in blank signed condition to the complainant along with one other cheque, only as a security for the repayment of the loan amount, which loan amount he has already repaid to the complainant. The accused stated that he had duly requested and had sought the return of his cheques from the complainant, but the complainant refused the return of the same by stating that the same are not Pg. 10 of 35 C.C. No.4993094/2016 traceable as some renovation is going on at her residence. The accused further stated that he came to know about the factum of dishonour of the cheque in question only when he received the summons from the court, as he had not received any legal notice.
10. Upon being asked if he would choose to lead defence evidence in the affirmative, the accused answered positively and the hearing in the case was thereafter adjourned for recording of defence evidence. The application of the accused under Section 315 CrPC was allowed by the court, and the accused was examined as the first defence witness/DW1.
11. In his examination in chief, DW1 stated that he had obtained a loan of Rs.5,00,000 from the complainant in January 2014, and as security towards repayment of the loan amount, he had issued two cheques in blank signed condition to the complainant, which includes the cheque in question, besides executing a power of attorney, agreement to sell and receipt etc in favour of the complainant with respect to his property situated in Mangolpuri Kalan, Delhi 110085. DW1 further deposed that in order to repay the aforesaid loan amount, he had given 10 instalments of Rs.35,000 each to the complainant, and Rs.1,00,000 by way of cash in November 2014, as also a sum of Rs.50,000 by way of cash to the complainant in December 2014. DW1 deposed that the last payment of Rs 50,000 was made by him to the complainant in the presence of his brotherinlaw ( jijaji).
DW1 was crossexamined at length by the complainant. In his cross examination, DW1 deposed that prior to the recording of his examination in chief, he had never disclosed the manner in which he had repaid the loan amount to the complainant, as he had never been queried with respect to the same. DW Pg. 11 of 35 C.C. No.4993094/2016 1 deposed that he has not placed on record any document which could show that he had repaid the loan amount to the complainant in the manner deposed by him. DW1 further deposed that he had duly approached the complainant in December 2014, seeking the return of his security cheques, but the complainant refused to return the same. DW1 further deposed on oath that he neither sent any notice to the complainant nor made any complaint against her seeking the return of his blank signed cheques . DW1 denied the suggestion that he had never approached the complainant or her son seeking the return of the blank signed cheques. DW1 accepted as correct the suggestion that he had never cancelled the power of attorney executed by him in favour of the complainant, allegedly executed as a security for the repayment of the loan amount sought by him from the complainant. At this stage, further crossexamination of DW1 was deferred.
DW1 was recalled for further crossexamination on 22.10.2019, on which date he deposed that he used to pay the instalments for the repayment of the loan amount on 17th day of each month, commencing from January 2014. DW1 denied the suggestion that he had never paid the loan amount to the complainant as per the instalments described by him. DW1 deposed that he had approached the police authorities for filing a complaint against the complainant when she refused to return his cheques, including the cheque in question or the power of attorney executed by him in her favour, but the police refused to register his complaint when he told the authorities that a complaint under section 138 Negotiable Instruments Act, 1881 has been filed against him by the complainant. DW1 accepted as correct the suggestion that he had never given any notice to the complainant seeking a return of his cheques. DW1 further denied the suggestion that he had neither approached the police for making a complaint against the complainant nor had he given them any notice for the Pg. 12 of 35 C.C. No.4993094/2016 reason that the particulars on the cheque in question had been duly filled in by him and the same was not intended as a security cheque merely. DW1 accepted as correct the suggestion that at the time the notice was served upon him under section 251 CrPC, he had not mentioned the entire schedule as per which he had allegedly repaid the loan amount to the complainant, which was later described by him in his examination in chief recorded on 12.09.2019, and volunteered that he had not so described the schedule as he had not been queried with respect to the same. DW1 deposed that he was residing at house number 223, Mangolpuri Kalan, Delhi 110085 at the time when the legal notice was issued to him and denied the suggestion that he had duly received notice. DW1 further denied the suggestion that he had never made any payment of Rs. 50,000 to the complainant in the presence of his brotherinlaw. DW1 also denied the suggestion that the complainant had advanced a friendly loan of Rs.5,50,000 to him in March 2014 for a period of one year, or that he had given the cheque in question to the complainant towards discharge of his liability with respect to the repayment of the said loan amount and volunteered that he had given the said cheque in blank signed condition to the complainant as security. DW1 denied the suggestion that the particulars of the cheque in question had been filled in by him. At this stage, the witness was confronted with a document Ex DW 1/CW 1, being the statement recorded under Section 313 CrPC, in the complaint filed against him by the son of the complainant Sunny Sehrawat. DW1 testified on oath that he had repaid the loan amount in various instalments up till December 2014, and denied the suggestion that no payment was made by him to the complainant towards repayment of the loan amount, as described by him in the examinationinchief recorded on 12.09.2019. DW1 further denied the suggestion that he has a legally enforceable liability towards the complainant, Pg. 13 of 35 C.C. No.4993094/2016 and it is for this reason that he had closed his bank account, on which bank account the cheque in question had been drawn by him. DW1 volunteered at this stage that the bank account was closed automatically as he had stopped maintaining the same and was not doing any transactions with respect to the same, and deposed that he does not remember the exact date on which the said account was closed. DW1 deposed that he does not have any receipt to evidence the fact of repayment of the loan amount in instalments to the complainant and stated that the repayment was done by him in cash. DW1 denied the suggestion that he is unable to adduce on record any receipt qua the repayment of the loan amount as he has never made any payment towards the repayment of the loan amount sought by him from the complainant. DW1 denied the suggestion that the execution of the power of attorney by him in favour of the complainant is with respect to an entirely different transaction between the two, as part of which transaction he had sold the property bearing number 223 Mangolpuri Kalan Delhi110085 to the complainant, and the same has no bearing with respect to the loan transaction which forms the subject matter of the present complaint. After this cross examination, DW1 was discharged as a witness.
12. The hearing thereafter progressed to the stage of final arguments.
13. Ld counsel for the complainant argued that the complainant has been able to establish on record that she had advanced a loan of Rs.5,50,000 to the accused. Ld counsel for the complainant submitted that the accused has admitted the fact that he borrowed a loan of Rs.5,00,000 from the complainant and took a defence that the said loan was repaid by him, but as the accused has not been able to prove the repayment of the loan, he is liable to be convicted. Ld. counsel Pg. 14 of 35 C.C. No.4993094/2016 for the complainant argued that the accused has been taking contradictory stands in the crossexamination and adverted to the suggestion given to CW1 in her cross examination by the accused to the effect that the loan which the accused took from the complainant and eventually repaid amounted to Rs.2 lakhs. Ld counsel for the complainant further argued that at the time of recording of his defence under 251 CrPC, as well as a statement under section 313 CrPC the accused only mentioned that he had repaid the loan of Rs 5 Lakhs to the complainant, and it is only for the first time when he was examined as DW1 did the accused depose that the loan has been repaid by him in various instalments. Ld counsel for the complainant argued that this reflects that the accused is not credible as a witness and his testimony is liable to be discarded. Ld counsel for the complainant further argued that the accused has deposed in his examination in chief that he repaid the loan of Rs.5 lakhs in various instalments, and the last of such instalment was paid by him in the presence of his brotherinlaw/jijaji but the said brotherinlaw was never summoned as a witness by the accused, which fact also shows that the accused is unreliable as a witness. Ld counsel for the complainant argued that the accused has not been able to rebut the presumption of Section139 of Negotiable Instruments Act, and therefore is liable to be convicted. In support of his case, the complainant also relied upon the following judgments
(i) Rangappa vs Sri Mohan 2010(11) SCC 441
(ii) Gorantla Venkateswara Rao vs Kolla Veera Raghava Rao 2006 (1) DCR 163 Per contra, ld counsel for the accused argued that the complainant has admitted the execution of the documents such as agreement to sell, receipt, possession letter etc and has further admitted that the complainant has never Pg. 15 of 35 C.C. No.4993094/2016 filed any possession suit qua the said property. It was argued that this fact reflects that these documents were executed only as a collateral towards the actual loan transaction between the complainant and the accused, which was only for an amount of Rs.5 lakhs, and with respect to which two security cheques including the cheque in question were issued by the accused to the complainant. Ld. counsel for the accused argued that the said loan of Rs.5 lakhs has already been repaid by the accused to the complainant. It was further argued on behalf of the accused that the accused has been able to perforate the case of the complainant, and adverted to the crossexamination of CW 1 to argue that it is clear that CW1 did not have enough source of income to advance a humongous loan of Rs.11.5 lakhs to the accused. Ld counsel for the accused argued that there are glaring contradictions in the testimony of CW1, brought out during her crossexamination by the accused, such as the fact that the complainant does not remember the denomination of the currency notes in which the loan was advanced to the accused, and they entitle the accused to a verdict of acquittal in the present case. It was further argued that the suggestion given to CW1 qua the actual loan amount being Rs 2 lakhs only can be attributed to the mistake of the counsel. Accused has also placed on record written arguments in support of the case.
In rebuttal, Ld Counsel for the complainant submitted that it is not a valid argument that the suggestion qua the total amount of loan being Rs 2 lacs can be explained as a mistake on the part of the counsel. It was further submitted that minor contradictions in the testimony of CW1, if any, should be read in the light of her rustic background.
14. This Court has perused the record in the light of the evidence led by the Pg. 16 of 35 C.C. No.4993094/2016 parties and the arguments addressed.
15. It would be apposite at this stage to briefly discuss the law applicable to the offence of dishonour of cheques.
The proviso to Section 138 contains the preconditions which must be fulfilled before an offence under the provision is made out. These conditions are
(i) presentation of the cheque to the bank within three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(ii) a demand being made in writing by the payee or holder in due course by the issuance of a notice in writing to the drawer of the cheque within thirty days of the receipt of information from the bank of the return of the cheques; and
(iii) the failure of the drawer to make payment of the amount of money to the payee or the holder in due course within fifteen days of the receipt of the notice.
The legal position was discussed by the Hon'ble Supreme Court of India in MSR Leathers vs. S. Palaniappan (2013) 1 SCC 177 , wherein it was held thus, "12. The proviso to Section 138, however, is all important and stipulates three distinct conditions precedent, which must be satisfied before the dishonour of a cheque can constitute an offence and become punishable. The first condition is that the cheque ought to have been presented to the bank within a period of six months from the date on Pg. 17 of 35 C.C. No.4993094/2016 which it is drawn or within the period of its validity, whichever is earlier. The second condition is that the payee or the holder in due course of the cheque, as the case may be, ought to make a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. The third condition is that the drawer of such a cheque should have failed to make payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. It is only upon the satisfaction of all the three conditions mentioned above and enumerated under the proviso to Section 138 as clauses (a), (b) and (c) thereof that an offence under Section 138 can be said to have been committed by the person issuing the cheque."
16. At this stage, it becomes imperative to mention Section 139 of the Negotiable Instrument Act, 1881 which carves out a presumption in favour of the drawee that the cheque was issued to him in discharge of a debt or other liability of a legally enforceable nature. Also, the said provision must be read alongwith the Section 118 of the same enactment which spells out another presumption in favour of the drawee that every negotiable instrument was drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or Pg. 18 of 35 C.C. No.4993094/2016 transferred for consideration.
17. The first point of determination is whether a presumption under section 139 Negotiable Instruments Act, 1881 can be raised against the accused. It is noteworthy that the accused has not disputed the fact that he had signed the cheque in question, although he has stated that he had issued the cheque to the complainant in a blank signed condition. Now, even if this version of the accused is believed at its face value, it is a settled position in law that a person who issues a blank signed cheque in favour of another impliedly gives the holder of the cheque the authority to fill the particulars in the cheque. Section 20 of the NI Act, provides as hereunder :
20.Inchoate stamped instruments.Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in [India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as then case may be, upon it a negotiable instrument, instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount, provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.' Pg. 19 of 35 C.C. No.4993094/2016 By virtue of section 20 NI Act therefore, a right has been created in the holder of the cheque, as being prima facie authorized to complete the negotiable instrument and mere averments to the effect that the accused/drawer of the cheque did not fill in the details except for signing on the same are not sufficient. There is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. Once signatures on the cheque are admitted, the accused cannot escape his liability on the ground that the same was not filled by it as when a blank cheque is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill it up. A person issuing a blank cheque is supposed to understand the consequences of doing so. Reliance in this regard can be placed on the judgment of the Hon'ble High Court of Delhi in Jaspal Singh vs State dated 16.11.2016 in Crl Revision Petition 160/2016. Therefore, this line of defence taken by the accused does not help the case of the accused.
Further, the accused has stated both at the time of recording of his defence under section 251 CrPC as well as at the time when his statement was recorded under section 313 CrPC that he did not receive the legal notice. However, the correctness of the address on which the legal notice was sent was admitted by the accused during his cross examination. Moreover, the summons and the subsequent process through which the presence of the accused could be secured by this court was delivered/executed at the address furnished on the record by the complainant. Having been duly served by the process and subsequently having entered appearance before this court, the argument of the accused that he did not receive the legal notice also does not help his case. At this juncture, this Court seeks guidance from the law laid down by the Hon'ble Supreme Court of India in CC. Alavi Haji v. Palapetty Muhammed, (2007) 6 Pg. 20 of 35 C.C. No.4993094/2016 SCC 555 wherein it has been held as follows :
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case [(1999) 7 SCC 510 : 1999 SCC (Cri) 1284] if the "giving of notice" in the context of Clause (b) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138of the Act."
Pg. 21 of 35 C.C. No.4993094/2016 The plea of nonreceipt of legal notice notwithstanding therefore, the accused can be said to have good notice of the present complaint. Cumulatively viewed, the foregoing discussion leads this Court to the inescapable conclusion that a presumption under section 139 read with section 118 of the Negotiable Instruments Act,1881 can be drawn against the accused, the constituent elements having been met.
18. The offence of Section 138 NI Act being premised on the theory of reverse onus of proof, the next point of determination is whether the accused has been able to discharge the onus of proof placed upon him. The journey of trial qua a complaint under Section 138 NI Act commences, after a determination is made that the presumption as per Section 139/118 Negotiable Instruments Act, 1881, can be raised against the accused, from the point of the accused who is required to prove that the cheque in question was not given for a consideration or for the discharge of any legally enforceable debt. In this regard, reliance can be place on Hiten P. Dalal Vs. Bratindranath Banerjee (2001) 6 SCC 16 wherein it was held as under: "22. Because both Sections 138 and 139 require that the Court `shall presume' the liability of the drawer of the cheques for the amounts for which the cheques are drawn, ..., it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption has been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. Such a presumption is a presumption of law as distinguished from a Pg. 22 of 35 C.C. No.4993094/2016 presumption of fact which describes provisions by which the court may presume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable probability of the nonexistence of the presumed fact.
23. In other words, provided the facts required to form the basis of a presumption of law exists, the discretion is left with the Court to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the 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 Pg. 23 of 35 C.C. No.4993094/2016 of the prudent man."
In the backdrop of the legal position enunciated above, it is to be examined whether the accused, on a scale of preponderance of probabilities, has led evidence sufficient to discredit the case of the complainant so as to shift the onus placed upon him to the complainant. As held by the Hon'ble Supreme Court of India in Kumar Exports vs Sharma Carpets (2009)2 SCC 513, the accused can either prove the nonexistence of consideration and debt by direct evidence, or by bringing 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 may act upon the plea that they did not exist. If this Court comes to the conclusion that the accused has not been able to rebut the presumptions raised against him, by failing to bring on record direct evidence or by even failing to sufficiently perforate the case of the complainant, the complainant is entitled to a decision in her favour.
19. As culled out from the plea of defence taken by him under Section 251 CrPC, and the time when his statement was recorded under Section 313 CrPC, the defence put by the accused during the crossexamination of CW1 and CW2 as well as during his own examination as DW1, the defence of the accused is that he had sought a loan of Rs.5 lakhs from the complainant, but had subsequently repaid the said loan. It is the case of the accused that the cheque in question along with one other cheque was issued by him as a security cheque towards the repayment of the said loan of Rs.5 lakhs, and both the cheques have been misused by the complainant as well as her son.
Pg. 24 of 35 C.C. No.4993094/2016
20. This Court shall first examine if the accused has been successful in proving his case by leading direct evidence. That is, if the accused has been able to prove that he had sought only a loan of Rs. 5 lakhs from the complainant, and has repaid the same. Before the same is examined, it is imperative to deal with the argument of the complainant that the accused's version that he had repaid the loan amount ought to be rejected outright, because the first time that the accused elaborated upon the schedule of payment was in his examination in chief. This court is of the considered opinion that the said argument deserves to be rejected. The accused had stated at the time when his plea of defence was recorded under section 251 CrPC that he had borrowed a sum of Rs.5 lakhs from the complainant and had subsequently repaid the same. Merely because he chose to elaborate upon the schedule of the repayment of the loan amount for the first time in his examination in chief does not go against the accused. The accused has not taken any contrary version in his examination in chief and has merely elaborated the consistent defence taken by him throughout the case, as also at the time when his plea of defence was recorded under section 251 CrPC and when his statement was recorded under section 313 CrPC regarding the repayment of the loan amount. The dichotomy in the suggestions given by the accused to the complainant regarding the loan amount actually being only Rs 2 Lakhs can also be explained as inadvertence, and does not discredit the case of the accused. It now remains to be seen whether the accused has been able to establish the repayment of the loan amount of Rs.5 lakhs to the complainant, thereby discrediting the case of the complainant that the accused has a legally enforceable debt.
21. The accused deposed in the capacity of DW1 that he had repaid the entire Pg. 25 of 35 C.C. No.4993094/2016 amount of Rs.5 lakhs to the complainant in 10 instalments of Rs.35,000 each, one instalment of Rs.1,00,000 by way of cash in November 2014 and finally a last instalment amounting to Rs.50,000 which was given by him in cash to the complainant in December 2014 in presence of his brotherinlaw(Jijaji). At the time when notice U/s 251 Cr.PC was framed against the accused, the accused stated that he had repaid the loan amount to the son of the complainant. However, in his examination in chief, the accused stated that he had repaid the loan amount to the complainant directly, and infact the last installment was given by him in presence of his jijaji. Pertinently, the said brother in law was never examined as a witness by the accused. Furthermore, the accused never brought on record any evidence to support the testimony to the effect that he had repaid the loan amount as per the schedule described in the foregoing sentences such as any bank statements etc. The accused testified in his crossexamination that he used to pay the instalment on 17th day of each month, and had commenced the payment of the instalments from January 2014. He, however, accepted as correct the suggestion that he neither has any receipt nor any other document to prove the repayment of the loan amount as per the said schedule. It is apposite to mention at this stage that the cheque in question had been dishonoured because the account from which the accused had issued the cheque to the complainant was closed. When queried as to when the said account had been closed, the accused unconvincingly answered that he does not remember the date on which the account had been closed. No attempt was made by the accused to even explain that when the cheque in question was issued by him in favour of the complainant, his account was operational and he did not have malafide intention at the inception. Further, in his statement Ex DW1/CW1 , which is the statement of the accused recorded under Section 313 CrPC in the Pg. 26 of 35 C.C. No.4993094/2016 complaint filed against him by the son of the complainant CW2 herein, the accused has deposed that he got the account closed himself. From the material available on the record, it is clear that the accused neither made any communication with the bank regarding the wrongful closure of his bank account nor intimated the complainant about the said closure. If the accused did not have any mala fide intention qua the repayment of the loan amount to the complainant, he ought to have informed the complainant that the bank account from which he had drawn the cheque, even though the same was meant as a security cheque, has closed and that even otherwise he has no liability towards the complainant. Far from taking any such action, the accused has deposed in his crossexamination that the relevant bank account had automatically closed as he had stopped maintaining the same and was not transacting from the said account. Further, the accused has not brought on record any evidence to show that prior to the closure of this bank account from which the cheque in question had been issued, he had been maintaining sufficient balance in his bank account which would have enabled him to repay the loan amount in the manner described by him. The accused has further failed to bring on record any other evidence to show his capacity for the repayment of even the amount of Rs.5,00,000.
The defence taken by the accused that he has already repaid the loan amount of Rs 5 Lakhs to the complainant in cash, when his bank account was closed on account of insufficient number of transactions done through the said bank account does not inspire the confidence of this court. This Court is of the considered opinion that the accused has not been able to prove his defence in the affirmative.
22. It has already been discussed in the foregoing portion of this judgment Pg. 27 of 35 C.C. No.4993094/2016 that the accused can rebut the presumption raised against him by either proving his case by leading positive evidence, or by puncturing the case of the complainant. It now remains to be examined if the accused has been able to plug enough loopholes in the case of the complainant, so as to rebut the presumption under Section 139 Negotiable Instruments Act, 1881.
23. To contest the version of the complainant, the accused first laid challenge to the capacity of the complainant for advancing the loan. The accused sought to establish that the complainant did not have enough resources to advance a loan of Rs.11.5 lakhs to the accused. To further this line of defence, CW1 was queried in her cross examination qua the source from which she had advanced a loan amount to the accused. The consistent version of CW1 has been that the amount was transferred by her out of the money which she had received as compensation when her land situated in Gurgaon was acquired by the Government, and also stated that a part of the said amount was withdrawn by her from her bank in Najafgarh. CW1 also adduced on record her bank account statement and deposed that she had withdrawn and amount of Rs.9 lakhs on 14.03.2014 and 10 lakhs on 20.03.2014 for some personal needs and to purchase some property, and it is out of this amount that she advanced a loan of Rs.5,50,000 to the accused in March 2014. Now, it is the case of the accused as well that he had obtained a loan of Rs.5 lakhs from the complainant herein. The complainant, however , has averred that she had advanced Rs.5,50,000 to the accused. The difference in the two sums is not as big so as to entitle the accused to question the source from which the loan was advanced to him. The defence taken by the accused is actually that the entire sum of Rs 11.5 lakhs could not have been advanced by the complainant, but this is not even the case of the complainant to begin with. The case of the complainant has been that she had Pg. 28 of 35 C.C. No.4993094/2016 only advanced Rs 5,50,000 to the accused, and the sum of Rs 6 Lakhs was advanced to him by her son separately. The line of questioning around the capacity of the complainant to advance the loan, therefore, does not strengthen the case of the accused.
24. Further, merely because the complainant failed to adduce on record the documents of the property worth Rs.25 lakhs which she had admittedly purchased around the same time when the loan was advanced to the accused is not a factor which can be considered in favour of the accused. Ld counsel for the accused argued that the fact that the complainant admitted to having purchased a property worth Rs.25 lakhs, but failed to produce the documents with regard to this property shows that as she had invested a huge sum of Rs.25 lakhs in purchasing a property, in no way could she have advanced a sum of Rs.11.5 lakhs as a loan to the accused, especially since, yet again admittedly, the complainant has no source of income . This argument of the accused does not hold water, in the considered opinion of this court. At the cost of reiteration, the case of the complainant is only that she had advanced a sum of Rs.5,50,000 to the company accused. Nowhere has the complainant claimed to have enough resources to have advanced 11.5 lakhs to the accused, and it is the case of the complainant that the remaining amount of Rs.6 lakhs was given to the accused by her son/CW2 from his own funds. In this regard, CW2 in his testimony also consistently deposed that he had advanced a loan of Rs.6 lakhs to the accused separately, as distinct from the loan transaction between the complainant and the accused, from his own funds. The complainant was required only to establish on record that she had advanced a sum of Rs.5,50,000 to the accused, and in view of the fact that the accused has himself admitted obtaining Rs.5 lakhs from the Pg. 29 of 35 C.C. No.4993094/2016 complainant, the line of questioning as to the source of income of the complainant appears meritless.
25. Now, it is the case of the accused that he had obtained a loan of Rs.5 lakhs from the complainant, and as security towards repayment of the same, he had issued two cheques, including the cheque in question, in blank signed condition, to the complainant. Further, it has been the case of the accused that the cheque in question has been misused by the complainant and the same had been given by him to the complainant in blank signed condition only as a security for the repayment of the loan amount of Rs.5 lakhs. This again is merely a bald averment, as the accused failed to adduce any evidence to show that the writing on the cheque is not his. In fact, a careful perusal of the cross examination of CW2 conducted on 17.07.2019 shows that after CW2 admitted that the particulars on the cheque have not been filled in by the complainant/CW1, a suggestion was given to CW2 that the particulars on the cheque in question are not in the handwriting of CW2 either. Meaning thereby, the accused has suggested to CW2 that the particulars of the cheque in question were neither filled in by the complainant/CW1 nor by CW2. This is in the face of the entire defence taken by the accused that the cheque in question was handed over by him to the complainant in a blank signed condition and goes on to prove that the particulars on the cheque in question had also been filled in by the accused when he had handed over the cheque in question to the complainant.
26. A comparison of the handwriting on the cheque with the signatures, under Section 73 of the Indian Evidence Act, 1872, also leads this Court to the opinion that the particulars on the cheque in question have been filled in by the accused.
Pg. 30 of 35 C.C. No.4993094/2016 Now, if the loan amount which the accused had sought from the complainant was Rs 5 lakhs only, there was no occasion for the accused to issue a duly filled in cheque to the tune of Rs 5,50,000/ in her favour.
27. A line of argument was taken by the accused that the fact that only a sum of Rs.5 lakhs was ever advanced by the complainant to the accused is evident from the fact that at the time of the loan transaction, which as per the accused took place in January 2014, certain documents such as agreement to sell, power of attorney etc with respect to property bearing house number 223 Mangolpuri Kalan Delhi 110085 were executed by the accused in favour of the complainant as a collateral. It is the case of the accused that if the same was a genuine sale and purchase transaction, the complainant ought to have filed a suit for possession of the property. Even this argument of the accused does not find favour with this Court. Firstly, it is the admitted case of the parties that the said documents were executed on 25.01.2014, whereas it is the case of the complainant that the loan was advanced by her to the accused in March 2014. The complainant/CW1 has stated in her crossexamination that she paid the consideration for the purchase of the property in May 2014, but given the fact that the complainant is a rustic woman, this fact alone does not discredit the entire case of the complainant as this court can take notice of the fact that the complainant may have forgotten the exact date of payment. It has been the case of the complainant that the transaction with respect to which the said documents were executed was a separate transaction. When the accused had taken the defence that the documents were in fact executed as security towards repayment of the loan amount, and were a sham transaction, the accused ought to have adduced on record his account statement to show that no sum of Rs.5 lakhs was Pg. 31 of 35 C.C. No.4993094/2016 ever received by him from the complainant in the relevant period as sale consideration. The accused failed to put any question to CW1 as regards the source from which the said amount of Rs.5 lakhs being the sale consideration was given by her to the accused, and no question was put to CW 1 to bring on record the bank statement to evidence the payment of the sale transaction. Furthermore, the accused has stated that the fact that the documents were only executed as a security and the transaction was sham can be established from the fact that the complainant has, till date, not filed any suit for possession of the property qua which the documents have been executed, and the possession of the property is till date with the accused. It is, however, equally true, that the accused has also till date not sought the cancellation of any of the said documents on the ground that they are sham documents and has admitted during his crossexamination that the power of attorney which he had executed in the favour of the complainant is subsisting. Merely because the complainant failed to file a suit for seeking the possession of the property, which is a separate transaction, cannot prejudice the case of the complainant. Perusal of these documents Ex CW1/I (OSR) reveal that they have been witnessed by one "Sumit" as well. The accused failed to even summon this witness to support his case that the documents are sham, and do not reflect the actual transaction between the parties. It is the case of the accused that he had repaid the loan amount to the complainant by December 2014. Now, it cannot be the case of the accused that in December 2014 itself, he had foreseen that the complainant shall not file any suit for possession within the subsisting period of limitation on the basis of the said documents Ex CW1/I. Yet, the accused has not adduced on record any evidence to show that he took reasonable steps for the cancellation of the said documents within the period of limitation when the complainant could Pg. 32 of 35 C.C. No.4993094/2016 have approached the court to seek specific performance thereof. Not even a suggestion to this effect has been given. This conduct also does not appear to be the conduct of a reasonable man. As such, merely because the complainant also failed to file a suit for possession qua the property which is the subject matter of the documents Ex CW1/I does not ipso facto establish that the said documents are sham documents and were only executed as security for the repayment of the loan amount.
28. Further, a very flimsy explanation has been given by the accused with respect to the fact that he did not seek the cheque in question. It is stated by the accused/DW1 that he had approached the complainant for the return of the cheque in question after the repayment of the loan amount, but the complainant expressed her inability to return the cheque in question by stating that she has misplaced the same on the ground of some renovation work going at her residence. The fact that this explanation was found satisfactory by the accused, who neither issued "Stop Payment" directions to his bank, nor sent a notice to the complainant to seek the return of his cheques also makes the case of the accused suspect in the eyes of this Court.
29. The accused further failed to reply to the legal notice of the complainant, though he has admitted that they were sent at the correct address, also leads this Court to formulate the opinion that he admitted the contents of the same. At this juncture, this Court seeks guidance from the law laid down by the Hon'ble High Court of Andhra Pradesh titled Gorantla Venkateswara Rao (supra), relied upon by the complainant as well.
Pg. 33 of 35 C.C. No.4993094/2016
30. The mere fact that the complainant could not answer as to in which denomination of currency notes was the loan advanced by her to the accused also does not help the case of the accused for two reasons. Firstly, that the testimony of CW1 in this regard was recorded in 2019, whereas the loan transaction took place between the parties in early 2014 and the complainant could not be expected to remember the denomination of each of the currency note in which the loan was advanced by her to the accused. Even otherwise, if not the amount of Rs.5,50,000, the complainant the accused has at least admitted seeking a loan of Rs.5 lakhs from the complainant and as such, the query with regard to the denomination of the currency notes is neither here nor there. Further, though the accused could elicit from the complainant during her testimony the statement that she did not even know the purpose for which the accused had sought the loan from her, this alone is not sufficient to shift the burden placed upon the accused by virtue of section 139 of the Negotiable Instruments Act 1881.
31. In the light of the discussion contained in the foregoing paragraphs, this Court is of the considered opinion that the accused has not been successful in perforating the case of the complainant sufficiently well so as to displace the onus placed upon him by virtue of Section 139 Negotiable Instruments Act, 1881.
32. Having held that the accused has failed to rebut the presumption under section 139/118 Negotiable Instruments Act,1881, this Court here by convicts Pg. 34 of 35 C.C. No.4993094/2016 the accused Pardeep Shokeen S/o Sh. Sompal Shokeen, for the offence punishable under Section 138 of the Negotiable Instruments Act,1881 with respect to the cheque in question. Let a copy of the judgment be provided to the convict free of cost.
Now to come up for arguments on the point of sentence.
Announced in open Court on 16th (MEDHA ARYA) day of September, 2021 M.M. (N.I. Act03), SouthWest, (35 pages) Dwarka Courts, New Delhi Pg. 35 of 35 C.C. No.4993094/2016