Delhi District Court
Cc No. 5213/2021 Shamim Ahmad vs . Ranjana Page 1 Of 29 on 15 April, 2023
IN THE COURT OF Ms. KANIKA AGARWAL, METROPOLITAN
MAGISTRATE (NI ACT), DIGITAL COURT NO. 5 (SOUTH)
SAKET COURTS, NEW DELHI
CC No.5213/2021
CNR No.DLST020158612021
In the matter of:-
Shamim Ahmad
S/o Sh. Nanhe Kha
R/o H.No.3/336, Dakshinpuri Extension,
New Delhi-110062 ......Complainant
Versus
Ranjana
W/o Sh. Vijay Kumar
R/o H.No.6/138, 4th Floor,
Dakshinpuri Extension,
New Delhi-110062 .......Accused
Date of Institution of Complaint: 09/10/2021
Offence Complained of : u/s 138 OF N.I ACT,1881
Plea of accused : Not Guilty
Decision : Acquittal
Date of Decision : 15/04/2023
JUDGEMENT
1. The present complaint has been filed against the accused seeking prosecution for the offence punishable under section 138 of the Negotiable Instrument Act,1881 (hereinafter referred to as the NI Act, 1881). CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 1 of 29
2. Briefly stated, it is alleged that the accused had approached the complainant for a friendly loan of Rs. 2,00,000/-in the month of September, 2020 and considering the cordial relations between them, the complainant had advanced a cash loan of Rs.2,00,000/- on 25.09.2020 to the accused. It is alleged that accused had also executed a receipt and loan agreement dated 25.09.2020 as per which accused has acknowledged her liability for the said amount. It is further alleged that the accused in discharge of her liability had issued a cheque bearing no. 508130 dated 31.08.2021 for a sum of Rs. 2,00,000/-drawn on State Bank of India, Dakshinpuri Branch, Ambedkar Nagar, New Delhi-110062 in favour of the complainant. However, on presentation the same was returned dishonoured vide return memo dated 06.09.2021 with the remark " Inoperative Account".
3. Thereafter, the complainant had issued a legal notice dated 09.09.2021 through his counsel demanding the said amount. That despite service, accused has failed to make the payment within the statutory time period and hence the present complaint was filed with a prayer that accused be summoned, tried and punished according to law.
4. The complaint case was received by assignment and registered pursuant to order dated 09.10.2021. Further, through a detailed order dated 02.12.2021, accused was summoned upon finding a prima facie case against her to proceed CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 2 of 29 as per the law. Accused appeared on 21.03.2021 and was released on bail on the same day. Further, Notice under section 251 of the Criminal Procedure Code, 1973 ("Cr.P.C.") was served upon accused Ranjana on 02.06.2022.
5. The accused in her plea under section 251 Cr.P.C. pleaded not guilty and opted to contest the case. After perusal of the cheque, the accused admitted her signatures on the cheque in question. As regards the legal demand notice, she stated that she received the same. At the time of framing of notice u/s 251 Cr.P.C., the accused took the following plea of defence:
" I have already repaid Rs.2,00,000/- to the complainant and why would I pay it again to the complainant"
6. Considering the plea of defence raised and grounds stated in an application u/s 145 (2) of NI Act advanced by both the sides, the accused was granted an opportunity under Sec. 145(2) of the Act to cross-examine the complainant vide order dated 02.08.2022.
B: Complainant Evidence
7. In order to prove its case, the complainant stepped into the witness box as CW1 and adopted his pre-summoning evidence affidavit Ex.CW1/8 as post
-summoning evidence and also relied upon the following documents: CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 3 of 29
Sr. No. Exhibits Documents
1. CW1/1 Receipt dated dated 25.09.2020
2. CW1/2 Agreement dated 25.09.2020
3. CW1/3 Cheques bearing No.508130 dated
31.08.2021 for a sum of
Rs.2,00,000/-
4. CW1/4 Return memo dated 06.09.2021
5. CW1/5 Legal notice dated 09.09.2021
6. CW1/6 Postal receipt
7. CW1/7 Tracking report
8. CW1/4A Certificate u/s u/s 65 B I.E. Act
qua tracking report.
8. CW1 was duly cross-examined at length by Ld. counsel for accused and vide separate statement of complainant, her evidence was closed vide order dated 22.11.2022. During his cross-examination, CW1/Complainant stated that he is an e-rickshaw driver, that he earns somewhere between Rs.500/- to Rs.700/- per day, that the accused took the loan on 25.09.2020 stating that her husband is very unwell and hence she requires the money. CW1 stated that the loan agreement was for a period of 11 months and at the time of signing of the loan agreement the cheque was not signed, that he has not received any money either during the tenure of the agreement or expiry of the agreement. Further in respond to court question regarding source of loan, the complainant stated that CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 4 of 29 he had advanced loan out of his personal savings and also by borrowing Rs 40,000/- from a known person namely Anil Khoke Wala.
C: STATEMENT OF ACCUSED U/S 313 R/W 281 CrPC
9. After the completion of complainant evidence and before the start of defence evidence, in order to enable the accused to personally explain the circumstances appearing in evidence against her, statement under Sec. 313 Cr.P.C. was recorded without oath in which all the incriminating evidence were put to her. Accused in response to specific questions stated that she has already repaid the loan amount. Further, in response to question 1, 6 and 7 she has stated as follows:
"Q1. It is in evidence against you that you had approached the complainant in the month of September, 2020 in order to seek a friendly loan of Rs.2 lac as you were in dire need of money due to some family problems with an assurance to return the same by 24.08.2021. In pursuant to the same, the complainant advanced a friendly loan of Rs.2 lac on 25.09.2020. What do you have to say?
A. It is correct that I had taken a loan of Rs.2 lacs from the complainant in cash on 25.09.2020.
Q6. It is further in evidence against you that you are still liable to pay the cheque amount to the complainant. What do you have to say?
A. I have already repaid the principle amount only the interest part is remaining. I have repaid the said money in the presence of witnesses namely Sanjay and Mohd. Alam, in which Sanjay had given me Rs.60,000/- and Mohd. Alam had given me Rs.1,00,000/- to repay the complainant. Further, I had also paid Rs.20,000/- around 8-9 months back to the complainant.
Q7. Why this case against you?CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 5 of 29
A. There was some rift between us with regard to the interest amount and therefore, the complainant has filed this false complaint."
D: DEFENCE EVIDENCE
10. As part of defence, the accused examined herself as DW1 after moving an application u/s 315 Cr.P.C. which was allowed vide order dated 19.10.2022. Further, the accused has also examined DW2 Sanjay and DW3 Alam in support of her case. As part of her examination in chief, the accused has stated as follows:
"I had taken the loan in cash from the complainant for some personal work. As per the agreed terms I have returned the entire amount in cash to the complainant in the presence of Sh. Sanjay brother in law (jeth) and one Alam (friend of my husband). At the time of availing the loan I had signed on the cheque in question Ex.CW1/3 and one agreement Ex.CW1/2".
11. During her cross-examination dated 28.02.2023, DW1/accused stated that she has already returned the loan amount of Rs. 2,00,000/- to the complainant in several installments. That she repaid Rs. 40,000/- about two years ago to Anil Khoke Wala in the presence of the complainant as the latter had borrowed the amount from the former in order to advance the same to her. That she repaid Rs. 60,000/- to the complainant two months after the first installments after arranging the funds from her brother-in-law Sanjay/DW2, that she repaid the outstanding balance of Rs. 1,00,000/- about one and half year ago CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 6 of 29 after arranging the same from her husband's friend Mr. Alam/DW3. Accused had stated that Sanjay/DW2 was standing downstairs whereas she had gone inside the complainant house to return Rs. 60,000/- and similarly when she had gone to return Rs. 1,00,000/- to the complainant, Alam/DW3 was standing downstairs the house of the complainant and she has gone inside the complainant's house to return the amount. Further, the accused denied all the suggestions put to her.
12. Thereafter, DW2 Sanjay, brother-in-law of accused was examined. He stated in his examination in chief that he had advanced Rs. 60,000/- to the husband of the accused as they had to return to someone referred as "Phalwala". During his cross-examination, DW2 sated that he was informed by the accused that a false case has been filed against her despite the repayment, that he knows the complainant by his face and that the complainant has his fruit shop and is also a rickshaw puller. That he had advanced the amount of Rs. 60,000/- from his share in the sale proceeds of the joint house, that he did not ask the accused to whom she has to return the money and that he had accompanied the accused to complainant's house as she had to return the money. Further, he stated he was told by the accused that she has to return the money to " Rickshawala and Phalwala."
CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 7 of 29
13. DW3 stated in his examination in chief that he used to work with the husband of the accused and known him for last 10 years. DW3 stated that he was requested by husband of the accused to borrow them Rs. 1,00,000/- as they had to pay it back to someone. He further submitted that he advanced the money about 16-17 months back from the date of cross-examination dated 28.02.2023, that he took security cheques from the accused to secure the amount advanced and that the amount borrowed has been repaid by the accused. In his cross- examination, he stated that he is painter by profession and earns about Rs. 25,000/- p.m. on an average, that his family consist of his wife, two children and his parents and is residing in a rented premises.DW3 had stated that he does not remember the exact date, month and year when the amount was advanced to the accused, that he had accompanied the accused till outside the complainant's house whereas accused had gone inside the house of the complainant to return the money, that he knows the complainant however does not recognize his face. He further stated that he is not aware of the total loan amount availed by the accused.
14. Final arguments were heard from both the sides. It was argued by the Ld. counsel for the complainant that this is a fit case for conviction of the accused as all the essential ingredients of Section 138 of the Act read with Section 139 of the Act have been fulfilled and that the same has been aptly demonstrated by CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 8 of 29 the complainant before the court. It was argued that accused has admitted her signatures on the cheque in question in her plea of defence recorded at the time of framing of notice under Section 251 Cr.P.C and hence the presumption u/s section 118 r/w 139 are implied in her favour. Ld. Counsel for complainant has argued that the entire defence of the accused is full of material contradictions and alterations hence cannot be believed. It has been asserted that the accused during her statement/s 313 Cr.P.C. and examination in chief has stated that the loan amount was repaid in the presence of the Sanjay/DW2 and Alam/DW3, however during her cross-examination she stated that Sanjay/DW2 and Alam /DW3 were standing outside the house of the complainant whereas she had gone inside the house of the complainant to return the money. Further, it has been argued that the accused stated in her cross-examination that she had returned the loan amount of Rs. 2,00,000 /- in several installment, that the first installment of Rs. 40,000/- was made about two years ago, second installment of Rs. 60,000/- was made about two months after the first installment and that outstanding balance of Rs. 1,00,000/- was made about one and half year ago, however no such mentioning of repayment of loan amout in installments was made by the accused during her plea of defence and even the Ld. counsel for accused had not cross-examined the complainant about the same. Further, it has been argued that accused has contradicted herself with regard to time period when the amount of Rs. 40,000/- and Rs. 60,000/- were returned. Further, ld. CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 9 of 29 counsel as argued that the testimony of DW3 is full of doubts and contradictions with regard to the aspect if he knows the complainant or not, his financial capacity to advance a sum of Rs. 1,00,000/- to the accused and whether he had accompanied the accused to complainant's house or not.
15. Per contra, it has been argued by Ld. counsel for accused the complainant has filed the false case against the accused as they have already returned the cheque amount. It has been asserted by Ld. counsel for accused that by leading oral evidence of DW2 and DW3, they have sufficiently proved their case on the touchstone of preponderance of probabilities. Further, Ld. counsel for accused has relied upon following judgments in favour of his contention :
1.Kamala S.Vs. Vidyaharan M.J and Ors (Criminal Appeal No.33 of 2007)
2.Basalingapppa Vs. Mudibasappa (2019) 5 SCC 418
3.Dasrathbhai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel and Ors. (Criminal Appeal No.1497 of 2022)
4. Alliance Infrastructure Project Ltd and Ors Vs.Vinay Mittal ( Crl.M.C No.2224/2009)
5. State of Rajasthan Vs. Kalki and Ors. (1981) 2 SCC 752
16. I have given my thoughtful consideration to the rival submissions of the Ld. Counsels from both sides and have also perused the record including the written submission filed by both the complainant.
F: Legal framework and Analysis CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 10 of 29
17. Before appreciating the facts of the case and evidences led by the both the sides for the purpose of decision, let us first discuss the relevant position of law which is embodied in section 138 of Negotiable Instrument Act, 1881. The section 138 of Negotiable Instrument Act, 1881 provides as under :
"Section 138. Dishonour of cheque for insufficiency, etc., of fund as in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both :
Provided that nothing contained in this section shall apply unless :
(a) the cheque has been presented to the bank within a period of six months (reduced to three months vide notification no.
RBI/201112/251, DBOD. AML BC.NO.47/14.01.001/2011-12 CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 11 of 29 dated 04.11.2011) from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes 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; and
(c) the drawer of such cheque fails to make the 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. Explanation - for the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."
18. The legal position that emerges, from a bare reading of the said section is that before a finding of conviction for the offence punishable under section 138 N.I. Act, 1881 can be returned against the accused, the requirement of issuance of cheque and its dishonour due to insufficiency of fund or exceeding of arrangement, coupled with issuance of legal notice within 30 days and failure of drawer to pay the cheque amount has to be fulfilled cumulatively. The legal standard required to be met before the offence under section 138 is said to be culled out was succinctly discussed by the Hon'ble Supreme Court in the CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 12 of 29 Kusum Ignots & Alloys Vs. Pennar Peterson Securities Ltd (2000) 2 SCC 745 wherein the Hon'ble Apex Court observed that to constitute an offence under section 138 of the N.I Act, following conditions must be fulfilled:
First ingredient: a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;
Second ingredient: that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
Third ingredient: that 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;
Fourth ingredient: the payee or the holder in due course of toahe cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days (now 30 days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid;CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 13 of 29
Fifth ingredient: the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice".
19. Further, the N.I Act, 1881 raises two important legal presumptions in favour of the holder of the cheque as soon as the execution of cheque is proved.
As per Section 118 (a) of N.I Act, 1881 it shall be presumed that "every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration". Furthermore, as per Section 139 of N.I Act, 1881 it shall be presumed that "the holder of cheque, received the cheque for the discharge, in whole or in part, of any debt or other liability, unless the contrary is proved."
20. The principles with respect to nature of above-mentioned presumptions, have been discussed at length by Hon'ble Apex Court in Basalingappa v. Mudibasappa (2019) 5 SCC 418, in paragraph 25 reproduced as under :
"23.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
23.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 14 of 29
23.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
23.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden."
21. Further, in this context, as regard the standard of proof for rebutting the statutory presumption u/s 139 of N.I Act,1881 the observation of Hon'ble Supreme Court in Rangappa Vs. Sri Mohan (2010) 11 SCC 441 is very crucial which is reiterated as under:
"21. It is clear from the above overview that once the execution of the cheque is admitted, the complainant having been proved to be the payee of the cheque, or its holder in due course, statutory presumptions under Section 118(a) and 139 of Negotiable Instruments Act arise to the effect that such cheque was drawn or indorsed, for consideration, the holder being its holder in due course, the cheque having been received by such holder for discharge, in whole or in part, of any debt or other liability. The legal presumption, undoubtedly, is rebuttable, the initial burden to rebut being on the defendant who must show, by positive evidence or pre-ponderance of probabilities, non-existence of the consideration by proving the necessary facts and circumstances, either by direct evidence or by bringing on record requisite material, possibly even through the evidence of the complainant, leading the court to believe that the existence of the consideration was doubtful or illegal. A bare denial of liability obviously cannot suffice. It is the onus of the accused to show the improbability by some evidence on record."CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 15 of 29
22. To summarize, the law as it stands today is that once the issuance of cheque by the accused is proved, that presumptions under section 118 (a) and 139 of the N.I Act, 1881 are automatically activated in favour of the complainant. That said, the presumptions as however are rebuttable in nature and for rebuttal of the same the accused can either adduce evidence to prove that cheque in question was not supported by any consideration and in suitable cases may not even step into the witness box as the accused can rebut the same by placing reliance on the material brought on record by the complainant. In other words, the accused can either lead evidence and prove her defence on scale of preponderance of probabilities or she can show sufficient gaps in the case of the complainant so to create a reasonable doubt in the mind of the court regarding the version of the court.
23. In the backdrop of the factual narrative of the case, following points of determination arises in the present case :
A) Whether the complainant has been successful in raising the presumption under section 118 read with section 139 of the N.I Act, 1881?
B) If yes, Whether the accused has been successful in raising a probable defence to rebut the presumptions?
Point of Determination A CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 16 of 29
24. It is settled law that once the execution of the cheques by the accused is proved/admitted, the presumptions of the same being drawn for consideration and in discharge of legally recoverable debt/ liability in terms of section 118 r/w section 139 of the Act stands implied. Now, in the case at hand, so far, the question of existence of basic ingredients for drawing of presumption under section 118 and 139 the NI Act, 1881 is concerned, it is apparent that the accused could not deny her signature on the cheque in question Ex.CW1/3 that had been drawn in favour of the complainant on a bank account maintained by her. Taking note of the fact that the accused has admitted her signatures on cheque in question, the presumptions as codified u/s 139 and 118 of the Act are implied in favour of the complainant and the reverse onus clause set out in section 139 of the N.I. Act becomes relevant. Contrary to the basic principle of law of evidence, that cast a duty to prove, on the one making an assertion of the fact, the statue has created a presumption under section 139 of the N.I. Act as per which, unless the contrary is proved, the holder of the cheque is deemed to have received the cheque for discharge in whole or in part, of a debt or liability.
25. In reference to above-mentioned discussion on reverse onus clause, the court deems fit to rely upon the judgment of Hon'ble Supreme Court in Rohit Bhai Jivan Lal Vs State of Gujarat, AIR 2019 SC 1876 wherein the court has observed as follows:
CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 17 of 29
"Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant- accused cannot be expected to discharge an unduly high standard of proof.
28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
26. As discussed above, since the issuance of cheque in favour of the complainant stands proved, the presumption u/s section 118 and section 139 of N.I Act, 1881 of cheque being issued for consideration and for legally recoverable debt/liability stands activated. Accordingly, the point of determination no. A is decided in affirmative.
CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 18 of 29 Point of determination B
27. The court shall now see if the accused has been able to lead the probable defence to create reasonable doubt in the case of the complainant. The primary defence of the accused is that she had taken the loan of Rs 2,00,000/- from the complainant on 25.09.2020 however, the same has already been repaid by her and thus there remains no existing liability in favour of the complainant. Combined reading of plea of defence taken by accused at the stage of framing of notice u/s 251 CrPC , grounds taken in the application u/s 145(2) of NI Act, statement u/s 313 CrPC and examination in chief and cross examination of the accused reflects that accused has largely been consistent with her line of defence that she has already returned the loan amount as availed vide agreement dated 25.09.2020 Ex CW1/2 .There is evidently no dispute over the factum of advancement of loan. In order to robust her defence, the accused has examined herself as DW1 and two other witnesses namely Sanjay (brother-in-law of accused) as DW2 and Alam (friend OF accused's deceased husband) as DW3.
28. DW1 had stated in her cross examination dated 28.02.2023 that she had returned the amount of Rs. 2,00,000/- in three installments and the court shall now see if accused has been able to probabilse the repayment of loan amount vide three installments. Accused stated during her chief and cross examination that she had made first part payment/installment of Rs. 40,000/- to Mr. Anil CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 19 of 29 Khoke Wala at his shop near Virat crossing Dakshin Puri, Delhi in the presence of the complainant since the latter had borrowed Rs. 40,000/- from Anil khoke Wala in order to advance the same to her. The complainant had admitted the factum of borrowing Rs.40,000/- from Anil Khoke Wala during his cross examination dated 22.11.2022. Further, Ld. counsel for accused has also not disputed or rebutted the claim of the accused qua repayment of Rs. 40,000/- while cross-examining her and that not even a single suggestion was put to the accused regarding non-payment of Rs. 40,000/- to Anil Khoke Wala. However, during final arguments , it has been averred by Ld. counsel for complainant that the version of the accused cannot be believed as she has taken contradictory stand with regard to time period of payment of Rs. 40,000/- as initially in her cross examination dated 28.02.2023 , the accused stated that the amount was returned to the complainant about two years ago i.e. around February, 2021, however later in the same cross examination she stated that the amount was returned two months after the grant of loan which means that amount was returned around November, 2020. It cannot be gainsaid that accused has differed with regard to time period, however if comprehensive view is taken of the fact that evidence of the DW1 if read as a whole appears to have a ring of truth and as regard discrepancy with regard to time period when first installment was returned , the court finds support in observation of Hon'ble Supreme Court in State of Rajasthan Vs. Kalki and Ors. (1981) 2 SCC 752 wherein it has been CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 20 of 29 reiterated that "In the depositions of witnesses there are always some normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person." Thus, undoubtedly some natural contradictions are bound to happen with lapse of time as human memory has its own limitations and further one cannot discount the fact that not every time the events and dealings between individuals are documented under the apprehension that a complaint or suit may follow in future. Further, the accused has clearly mentioned to whom the money was returned and in whose presence it was returned and that the testimony of the accused to the extent that the money has been paid to Anil has not been uncontroverted by the other side also, therefore in the opinion of the court the factum of payment of Rs 40,000/- stands probabilsed.
29. The court shall now ascertain if repayment of second installment of Rs 60,000/- and third installment of Rs. 1,00,000/- has been proved by the accused on scale of preponderance of probabilities by leading oral evidence of DW2 and DW3.The accused has stated during her statement u/s 313 CrPC and in her cross examination dated 28.02.2023 that she had borrowed Rs. 60,000/- from Sanjay/DW2 and Rs. 1,00,000/- from Alam/DW3 in order to return the same to CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 21 of 29 the complainant. The court shall now scrutinise the evidence of DW2 and DW3 to ascertain the probative values of their testimonies.
30. DW2 in his examination in chief has stated that he advanced Rs. 60,000/- to the husband of the accused as they had to return the same to somebody referred as "phalwala" and in his cross-examination he has stated the had advanced the money about one and half year ago from the date of cross- examination dated 28.02.2023 (i.e around August, 2021). He further stated that he knows the complainant by face and that the complainant owns a fruit shop. He further submitted that he had accompanied the accused to complainant's house as the former had to return the money. The court has observed no material contradiction in the version of DW2 and in the opinion of the court the foremost reason behind examination of DW2 was to establish that an amount of Rs 60,000/- was borrowed by the accused from him and that he had accompanied the accused to complainant's house in order to return the money to the complainant and to that extent DW2 has fully supported and corroborated the version of accused. However, with regard to testimony of DW2, Ld. counsel for complainant has argued that there are contradictions in the statement of DW2 and the complainant vis-a-vis the time period when the amount of Rs. 60,000/- was advanced to the accused, as the complainant had stated in her cross- examination that amount of Rs. 60,000/- was returned to the complainant two CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 22 of 29 months after the first installment which leads to an inference that the money was borrowed around April, 2021, however, DW2 had stated that he had advanced the money about one and half year ago from the date of cross examination dated 28.02.2023 which means it was advanced around August, 2021. Further, it has been argued by the complainant side that the testimony of DW2 could not be believed as there was no whisper of money being borrowed from DW2/Sanjay and DW3/Alam and also no mentioning about repayment of loan amount in installments by the accused at the stage of framing of Notice u/s 251 CrPC and even no reference or suggestion were put regarding the repayment of loan amount in said installments by Ld. counsel for accused while cross-examining the complainant. As far as arguments of complainant are concerned, the court is of the opinion even though the accused has not mentioned anything about borrowing of amount from DW2 and DW3 in her plea of defence u/s 251 CrPC however, accused has mentioned the same at the stage of Statement u/s 313 CrPC . At this juncture, the court deems fit to refer to judgment of Hon'ble Supreme Court in Parminder Kaur @ P.P Kaur @ Soni Vs . State of Punjab (Criminal Appeal No. 283/2011) wherein while dealing with similar line of defence, the Hon'ble Supreme Court has observed as follows:
" 21 .Under the code of Criminal Procedure, 1973 after the prosecution closes its evidence and examines all its witnesses, the CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 23 of 29 accused is given an opportunity of explanation through Section 313(1)(b). Any alternate version of events or interpretation proffered by the accused must be carefully analysed and considered by the trial Court in compliance with the mandate of 313(4). Such opportunity is a valuable right of the accused to seek justice and defend oneself. Failure of the trial Court to fairly apply its mind and consider the defence, could endanger the conviction itself .Unlike the prosecution which needs to prove its case beyond reasonable doubt, the accused merely needs to create reasonable doubt or prove their alternate version by mere preponderance of probabilities. 5 Thus, once a plausible version has been put forth in defence at the 313 CrPC examination stage, then it is for the prosecution to negate such defense plea.
22. In the case at hand, the alternate version given by the appellant could not be lightly brushed aside."
31. Accordingly, once the accused has raised the probable defence in her statement/s 313 CrPC, the court cannot simply refuse to consider it on grounds that it is an afterthought and the court is duty bound to consider and evaluate the evidence led by the accused in support of her probable defence. To sum -up, the overall testimony of DW2 seems reliable, he has been tested on the anvil of cross- examination, no material contradictions in his testimony have emerged out, therefore the testimony of the DW2 on this ground alone cannot be disregarded when otherwise he has fully supported the case of the accused.
32. As regard the contradiction qua the time period, the court maintains the same view that some contradictions in the version of complainant and witnesses are bound to happen and such variations are rather indicative of the fact that witness are not tutored by the party who seeks to place reliance on their CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 24 of 29 testimony. Thus, as far as testimony of DW2 is concerned, there are no material contradiction in his statement and court has no ground to disbelieve the version of DW2 to the extent that accused had borrowed Rs 60,000/- from him in order to repay the same to the complainant. Accordingly, court is of the view that accused has been further able to probabilse the factum of payment of Rs 60,000/- to the complainant.
33. Further, as far as testimony of DW3 is concerned, it has been observed that his testimony is replete with several contradictions and improbabilities. During the cross-examination, DW3 stated that his family consist of wife, two children and his parents, that his monthly income is around 25,000/-p.m. and that he had raised money from committee business in order to advance the same to the complainant. The court is of the opinion no prudent person who is a sole bread earner for a family consisting of about 5- members with monthly income of Rs 25,000/- would ever raise money from committee in order to advance to his friends' wife. Further, the DW3 on one hand stated that he knows the complainant and that he has visited the complainant house twice, while on the other hand in the same cross examination he stated that he does recognise complainant face and that he does not even know the address of the complainant. Hence, all these contradictions and lack of clarity in the version of the DW3 makes his version untrustworthy.
CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 25 of 29
34. In light of the discussion above and appreciation of evidence tendered by both the sides , the court is of the opinion that though the accused has failed to establish that she has repaid the entire cheque amount, however, she has still successfully managed to lead a probable defence to the extent that she had returned part amount of Rs 40,000/- and Rs 60,000/- to the complainant out of the total cheque amount of Rs 2,00,000/- before the presentation of the cheque in question. As such, the liability of the accused was not equivalent to the cheque Ex CW1/3 amount on the date of presentation i.e 06.09.2021.
35. In Dasratbhai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel and Other (Crl.A.NO.1497/2022) the Hon'ble Court while deciding the core issue whether the offence u/s 138 would deem to be committed if the cheque that is dishonoured does not represent the enforceable debt at the time of encashment has observed as follows :
"16. 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 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.CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 26 of 29
25. Section 138 creates a deeming offence. The provisos prescribe stipulations to safeguard the drawer of the cheque by providing them the opportunity of responding to the notice and an opportunity to repay the cheque amount. The conditions stipulated in the provisos need to be fulfilled in addition to the ingredients in the main provision of Section 138. It has already been concluded above that the offence under Section 138 arises only when a cheque that represents a part or whole of the legally enforceable debt at the time of encashment is returned by the bank unpaid. Since the cheque did not represent the legally enforceable debt at the time of encashment, the offence under Section 138 is not made out.
29. Under Section 56 read with Section 15 of the Act, an endorsement may be made by recording the part-payment of the debt in the cheque or in a note appended to the cheque. When such an endorsement is made, the instrument could still be used to negotiate the balance amount. If the endorsed cheque when presented for encashment of the balance amount is dishonoured, then the drawee can take recourse to the provisions of Section
138. Thus, when a part- payment of the debt is made after the cheque was drawn but before the cheque is encashed, such payment must be endorsed on the cheque under Section 56 of the Act. The cheque cannot be presented for encashment without recording the part payment. If the unendorsed cheque is dishonoured on presentation, the offence under Section 138 would not be attracted since the cheque does not represent a legally enforceable debt at the time of encashment.
30. In view of the discussion above, we summarise our findings below:
(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;
(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 CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 27 of 29 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;"
36. To sum up in the light of aforesaid judgment and provisions of laws, the cheque that is dishonoured must represent a legally enforceable debt or liability on the date of presentation. Section 15 and 56 of Negotiable Instrument Act, 1881 deal with the provision of an endorsement on a negotiable instrument that a part of the sum mentioned in the cheque has been paid, so the instrument may be negotiated for the balance. The cheque must only be presented for the actual amount due and in case the part payment has been made before the presentation of the cheque, the holder of the cheque should endorse the factum of part payment made in terms of section 56 of the Act, and resultantly the instrument can be encashed for the negated balance. However, if the instrument is presented without adjusting the part payment, the offence u/s section 138 is not attracted as the said provision talks abouts legally recoverable liability only at the time of presentation of the cheque.
37. In view of aforementioned analysis of evidence, considerations and discussion, the court is of the opinion that the accused has been able to lead a probable defence of there being no legally enforceable liability in favour of the CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 28 of 29 complainant equivalent to the cheque amount Ex. CW1/3 as the liability was reduced in pursuant to part payment made by the accused. Thus, accused Ranjana has succeeded in rebutting the presumption of legal liability and the complainant has failed to prove the same affirmatively.
38. As a result, accused Ranjana is acquitted for offence under section 138 of N.I Act, 1881.
Announced in Open Court (Kanika Agarwal)
on 15.04.2023 M.M. (N.I. Act), Digital Court No.5 (South)
Saket Courts, New Delhi/15.04.2023
Certified that this judgment contains 29 pages and each page bears my signatures.
(Kanika Agarwal) M.M. (N.I. Act), Digital Court No.5 (South) Saket Courts, New Delhi/15.04.2023 CC No. 5213/2021 Shamim Ahmad Vs. Ranjana Page 29 of 29